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Border Patrol Killing|Goes to Federal Court

CORPUS CHRISTI, Texas (CN) - Border Patrol agents killed a man by shooting up his SUV from the side, and falsely claimed they were afraid of being run over, the driver's mother claims in Federal Court.

Maria Fernanda Rico Andrade says her son Gerardo Lozano Rico, a Mexican national, fell victim to a Border Patrol policy "that excuses agents for using deadly force when they 'intentionally place themselves in the exit path of moving vehicles.'"

She sued Uncle Sam, U.S. Customs & Border Protection, the U.S. Office of Border Patrol, several former Department of Homeland Security officials and the agents who allegedly shot her son, Jose Tejeda and Eberto Cabello.

On a back road in San Patricio County, just north of Corpus Christi, Tejeda and Cabello began following a black Lincoln Navigator on Nov. 3, 2011, the mother says in her Feb. 27 lawsuit.

"The agents ran a registration check on the Navigator, which revealed that the vehicle was registered in Houston, Texas," the complaint states. "Although the Navigator did not appear to violate any traffic laws and nothing appeared outwardly suspicious with the registration check, Cabello reportedly believed that the Navigator contained illegal aliens and initiated a traffic stop."

Five men jumped out and ran, Rico says, and her son tried to flee too, but Cabello ran up and slammed the rear driver's side door on him.

"In an effort to escape, Lozano climbed from the rear passenger seat into the driver's seat. Cabello slammed his baton into the window at Lozano, shattering the window into pieces," according to the complaint.

Lozano tried to back the Navigator away from the agents but came to a fence and put it into drive, whereupon Cabello and Tejeda drew their guns and shot him until he slumped over the steering wheel, his mother says.

Rico says that though the agents claim the SUV was heading straight for them, only one bullet entered the vehicle from the front, and the autopsy showed the kill shots entered her son from the side, "when any arguable threat posed by the vehicle had already passed."

Rico claims the agents purposely put themselves in the Navigator's path to justify the shooting, and could have stepped out of the way or let her son go.

In recent years, Rico says, the Border Patrol has used this "Vehicle Policy" to justify at least 15 fatal shootings by its agents.

Rico blames the policy on defendant Janet Napolitano, then-head of the Department of Homeland Security, and other former officials. DHS oversees the Border Patrol.

"The highest-ranking DHS officials knew long before Lozano was killed that the Vehicle Policy: (a) permits Border Patrol agents to use lethal force when it clearly is not necessary; and (b) encourages Border Patrol agents to falsely assert that persons whom they shoot and kill were using a motor vehicle as a weapon. It was not until recently, however, that plaintiff became aware of the policy's existence," the complaint states.

Rico cites an interview by The Center for Investigate Reporting of James F. Tomsheck, the longtime chief of internal affairs for U.S. Customs and Border Protection, until he was reassigned in June 2014 to an executive director post with the Border Patrol.

Tomsheck told the Center for Investigate Reporting in August 2014 that at least a quarter of the 28 Border Patrol shooting deaths since 2010 were "highly suspect," but no agent has been charged criminally for them.

Tomsheck filed a complaint with the federal Office of Special Counsel last fall, alleging his ouster from CBP internal affairs was a case of whistleblower retaliation, according to the nonprofit investigative reporting outfit.

Rico seeks punitive damages for wrongful death constitutional violations.

She is represented by Robert Hilliard with Hilliard Munoz Gonzales.

A Border Patrol spokesman said the agency does not discuss pending litigation.

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