Gov’t Gets Immunity in Border Shooting Case

SAN DIEGO (CN) - Several federal officials are shielded from liability from claims that border patrol agents abused a practice that allows them to use deadly force against rock throwers, a federal judge has ruled.

Last year, widow Maria Del Socorro Quintero Perez and her two young children sued over the death of their husband and father, Jesus Alfredo Yanez Reyes, in federal court. The family claims Yanez was the victim of the U.S. Customs and Border Protection "rock throwing" policy, sometimes used against Mexicans or Hispanics who are of little or no threat.

Defendants include the United States, the Department of Homeland Security, the Customs and Border Protection Office of Border Control, and border patrolman Dorian Diaz, who shot and killed Yanez on June 21, 2011.

Department of Homeland Security secretary Janet Napolitano and Customs and Border Control Commissioner Thomas Winkowski are among the named officials.

Diaz shot Yanez without warning after the Mexican had climbed up a tree that extended over the border into Tijuana. At the time of the shooting, Yanez's friend Jose Ibarra-Murrieta had been detained on the U.S. side of the border by another border agent, Chad Nelson.

The border agents claimed Yanez had thrown rocks at them. But Murrieta said Yanez had only threatened to take video of the incident on his cellphone.

Border agents have killed at least 13 other men under the rocking policy, the family claims.

In his Sept. 3 order, Judge William Hayes noted that one Mexican teenager at the border near El Paso was shot for throwing rocks. The U.S. Department of Justice said that shooting was justified, but video showed that the teen had not been throwing rocks, Hayes said.

While Yanez's family complain that "the rocking policy has the imprimatur of the highest officials of the Department of Homeland Security," Hayes granted the government officials and supervisors motion to dismiss and found they cannot be held liable for the practice.

Dismissing the family's constitutional claims against the Department of Homeland Security, the judge also found that the government officials and "supervisors" in the case are immune from claims they had violated the law of nations.

But Hayes refused to reject a claim for violation of the Fourth Amendment's prohibition on unreasonable seizure against Border Patrol Chief Mike Fisher. Fisher is on record as rejecting calls to limit the practice of using deadly force against rock throwers.

Hayes said that that was enough to infer that Fisher "knew of and was responsible for the alleged rocking policy."

The family has also claimed that Nelson had provoked the shooting and "conspired" with Diaz to cover-up the incident. But Hayes said the family's claim of violation of the Fourth Amendment's prohibition against unreasonable seizures was too vague to survive Nelson's motion to dismiss.

Hayes said there was no evidence Nelson had an opportunity to intervene and stop Diaz from shooting Yanez. Nelson was "in the middle of a scuffle with Murrieta, and he was given no indication from Agent Diaz that deadly force would be used," the judge wrote.

Judge Hayes disagreed with the family's contention that the policy targets Mexicans or people of Hispanic descent, saying no one should be surprised that the policy would have a greater impact on Mexican nationals. But the family failed to demonstrate that the policy was discriminatory, the judge said.

Hayes gave the plaintiffs 30 days to file a second amended complaint.

Director of the American Friends Service Committee's U.S./Mexico Border Program, Pedro Rios called Hayes' ruling "unfortunate."

"The Border Patrol operates under a culture of impunity that endangers any real accountability only because it has the blessing of those in charge," Rios wrote in an email. "Justice for Jesus Yanez's family can only occur when all officials are held accountable for their actions, from the agent that pulled the trigger to those that allow misguided policy to provide cover for wrongdoing."

U.S. Department of Justice did not immediately respond to a request for comment after business hours on Monday.

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