Lawsuit Against Border Patrol Killer Refiled

     BROWNSVILLE, Texas (CN) - A Border Patrol agent shot to death a man standing "on his native soil in Mexico, unarmed and unthreatening," the man's family claims in a lawsuit prompted by the recent 5th Circuit ruling that U.S. law enforcement officers can be held liable for cross-border shootings.
     Survivors of Juan Perez Santillan sued the United States, the Department of Homeland Security, the Department of Justice, unknown Border Patrol agents, the U.S. Bureau of Customs and Border Protection, and the Immigration and Customs Enforcement Agency, on Monday in Federal Court.
     Santillan's family filed a nearly identical federal lawsuit in October 2012, alleging Fourth and Fifth Amendment violations.
     They voluntarily dismissed that complaint in January so they could file an administrative claim with the federal agencies involved.
     The family's attorney Richard Nunez, who did not file the first lawsuit but came in after their original attorney withdrew, told Courthouse News that the family had no choice to but dismiss the original case.
     "The Federal Tort Claims Act notice wasn't given prior to the suit by the previous attorney so (because) of that jurisdictional problem we decided to dismiss, which was our only option," Nunez said.
     The family refiled the complaint Monday after the 5th Circuit revived a lawsuit against Border Patrol agent Jesus Mesa Jr., brought by the family of Sergio Hernandez Guereca, a Mexican teenager Mesa shot dead along the U.S.-Mexico border.
     Nunez said the Santillans had always planned to refile, but the Hernandez ruling gave them leave to pursue constitutional claims "separate and distinct from the FTCA."
     The New Orleans-based appellate court found U.S. law enforcement officers do not have immunity against cross-border killings when the shootings amount to "arbitrary conduct that shocks the conscience," in violation of the Fifth Amendment.
     The 5th Circuit did, however, toss Fourth Amendment claims against Mesa.
     The Santillans' 2012 lawsuit included Fourth and Fifth Amendment claims; the new complaint only alleges the latter.
     In the latest complaint, the family clams that on July 7, 2012 Santillan was standing on the banks of the Rio Grande in Matamoros and "giving directions to a group of ten people on how to swim across" to Brownsville.
     "On this morning, Mr. Santillan instructed that they would be swimming across the river in groups of five when he gave them the signal," the complaint states.
     "The first group was already in the United States territory when Mr. Santillan instructed the second group to start swimming across the river. Mr. Santillan's brother was in the second group.
     "When the second group reached the bank of the Rio Grande River, in the United States, Mr. Santillan started yelling and waving his hands in the air at the second group in order to warn them that the U.S. Border Patrol was approaching. The second group immediately went back into the Rio Grande River in order to cross the river, back into Mexico.
     "Suddenly, United States Border Patrol agents, particularly, Agent Doe, aimed his long-range rifle at Mr. Santillan, using the rifle's high-power scope to sight Mr. Santillan, and fired the rifle at least five times, fatally wounding Mr. Santillan with at least one gunshot wound to the chest."
     When Santillan's brother, plaintiff Damian Perez Santillan, climbed out of the river he saw his brother lying in a pool of blood and frantically yelled at the Border Patrol agents for help, the family says.
     "One or more of the Border Patrol Agents responded by saying 'que se muera el perro' or 'let the dog die,'" the complaint states.
     "Damien Perez Santillan, along with two others, carried Mr. Santillan to his truck and transported him to the hospital where he died."
     The family claims that after the shooting, "Agent Doe fabricated a justification for his murderous act by falsely reporting ... that Mr. Santillan had a gun in his hand."
     The family says the only thing in Santillan's hand was a sweat rag.
     Nunez said the fact that the shooter's identity has not been made public is not because the Border Patrol is trying to keep it under wraps.
     "We do not know the shooter's name and it's not necessarily that the Border Patrol doesn't want us to know about it," he said. "In the first filing ... there was no discovery, and discovery wasn't permitted at that time. I don't expect that's going to be a problem once we get discovery going."
     The Santillans seek burial expenses and punitive damages for wrongful death and Fifth Amendment violations.
     Customs and Border Protection spokesman Rick Pauza cited the agency's "policy not to comment on pending litigation" in response to a request for a statement.
     Customs and Border Protection agents are still widely referred to as the Border Patrol.