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Singeli Agnew for Al Jazeera America
It’s been almost two years since 16-year-old José Antonio Elena Rodríguez was killed in the Mexican town of Nogales as he walked down a street close to his home near the U.S.-Mexico border. According to reports, on the night of Oct. 10, 2012, an unidentified Border Patrol agent opened fire on José through the steel-beamed border fence that stands on a cliff above the street where he was walking.
José was shot at least 10 times as he stood on Mexican soil — by an agent standing on U.S. soil.
Until recently, José’s family believed it was likely no one would be held responsible for his death. Since the bullets that killed José traveled from the U.S. into Mexico and because José was not a U.S. citizen, finding justice under the Constitution has been an uphill battle.
But after almost two years in legal limbo, a precedent emerged that allowed José’s family to move forward with filing a civil suit in federal district court against the agent who killed José.
In June, the U.S. Court of Appeals for the Fifth Circuit ruled on another cross-border shooting case involving the death of 15-year-old Sergio Adrián Hernández Guereca, who was shot in the face and killed by a Border Patrol agent in 2010 as he stood near the U.S. border in Juárez, Mexico. A three-judge panel ruled that Sergio’s family could sue the agent responsible for his death. The decision came as a partial reversal of a previous lower court ruling, which had blocked Sergio’s family from suing the U.S. government, the agent’s supervisors and the agent. (The deaths of Sergio and José were highlighted in the 2013 Fault Lines film “Cross-Border Killings.”)
“If ever a case could be said to present an official abuse of power so arbitrary as to shock the conscience, the Appellants have alleged it here,” the Fifth Circuit ruling stated.
According to Bob Hilliard, one of the attorneys representing Sergio’s family, the decision addressed what was essentially a legal vacuum. “You can’t have a free killing zone in this world,” he said. “You can’t have a place where law enforcement agents are allowed to shoot and murder innocent Mexican nationals without civil recourse.”
The decision has created a ripple effect for families seeking justice in these cross-border killings. At least two new suits have been brought in the wake of the ruling, including the one by José’s family, which they filed in July. The Fifth Circuit decision also came on the heels of an internal report that called into question the judgment of Border Patrol agents in when to apply deadly force.
In February, the Los Angeles Times reported on an independent audit by the Police Executive Research Forum that investigated 67 cases of deadly force from January 2010 through October 2012. Several “questionable cases” detailed in the report involve shootings through the border fence at people in Mexico. Customs and Border Protection (CBP), the parent agency of Border Patrol, had attempted to keep the report hidden. But, under pressure, CBP publicly released the report in May as part of a renewed effort toward transparency, along with revised use-of-force guidelines.
The report’s findings were echoed by an unauthorized interview that James F. Tomsheck, who was ousted as the CBP’s head of internal affairs in June, gave to the Center for Investigative Reporting (CIR) in August. He said that at least a quarter of the 28 deaths at the hands of CBP agents since 2010 raised concerns over whether the level of force employed was warranted. Instead of reviewing the facts, Tomsheck told CIR, Border Patrol leaders tried to justify the shootings.
While the new use-of-force guidelines represent a potential step forward, Chris Rickerd, policy counsel for the American Civil Liberties Union, said that in order for them to have teeth, they must be implemented properly with training, a complaint process and a statement from leadership that internal investigations will be taken seriously. There also needs to be an account of each incident, he added.
Bob Hilliard, attorney
“If the policy is violated and there’s no recording of the events that occurred, there will be no opportunity to assess whether that agent’s [or] officer’s actions were proper,” Rickerd said.
A year ago, CBP announced it would pilot the use of vehicle-mounted and body-worn cameras, which is a step toward accountability. In April, R. Gil Kerlikowske, who took over as CBP head a month prior, testified before the House Appropriations Committee that the agency was still trying to work out hurdles involving confidentiality, data storage and whether the equipment can hold up in extreme weather conditions.
Despite repeated requests, no one at CBP was made available for an interview for this article by press time. In a July interview with NPR, Kerlikowske said he was reviewing a number of deadly force incidents, including that of Sergio Adrián Hernández Guereca.
While the U.S. Court of Appeals for the Fifth Circuit’s decision in Sergio’s case gave hope to families of cross-border shooting victims, the path to justice isn’t wide open just yet. At the end of August, the U.S. government, Border Patrol, CBP, Department of Homeland Security, Department of Justice and Immigration and Customs Enforcement, along with lawyers for Jesus Mesa Jr., the agent who shot Sergio, filed a motion requesting that the entire Court of Appeals for the Fifth Circuit rehear the case. Hilliard said the lawsuit is now “frozen,” pending the response from the appeals court. If it denies the request, the government would likely appeal to the Supreme Court, he added.
Nevertheless, Luis Parra, one of the lawyers representing José’s mother, calls the Fifth Circuit decision a “viable precedent to be followed.” In August, Judge Raner Collins granted a motion allowing Parra and his colleagues to subpoena the Department of Homeland Security, CBP and the Nogales Police Department to compel them to release the name of the agent who shot José. CBP agreed to share the name of the accused Border Patrol agent with José’s mother but then asked for it to be permanently sealed.
José’s grandmother, Taide Elena, said the ruling in Sergio’s case has given her family more faith that José’s will move forward. “Justice for us will be seeing José’s killer in court,” she said.
While José’s family pursues the civil case, they’re also hoping the Department of Justice will pursue criminal charges against the agent. But Parra said the U.S. government has not yet decided whether to pursue prosecution. According to Parra, two assistant U.S. attorneys traveled to the scene of José’s death in Nogales in August, which he hopes means the government is closer to a decision. Repeated calls to the Department of Justice to inquire about the status of a prosecution went unreturned.
“A crime like this must not remain unpunished,” says José’s grandmother, Taide Elena. “Our loved one will never return. But there will be some relief if [the agent] is in jail. José was not an animal. He was a human being who had goals and values.”
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