Widow Alarmed by Deadly Force Border Policy

SAN DIEGO (CN) - A widow and her two children sued the United States, claiming it endorses a "rocking policy" that allows Border Patrol agents to shoot to death Mexicans who throw rocks at the border.

Maria Del Socorro Quintero Perez and her two young children sued for the death of their husband and father, Jesus Alfredo Yanez Reyes, in Federal Court.

The policy has caused the deaths of at least 13 Mexican nationals, the widow says in the complaint.

Defendants include the United States, the Department of Homeland Security, the Customs and Border Protection Office of Border Control, and 10 officials and former officials.

The Border Patrol unlawfully treats rock throwing as "deadly force," and allows agents to "legitimately respond with fatal gunfire" against Mexican nationals at the border, Perez says in her constitutional complaint.

"Under the rocking policy, Border Patrol agents shoot to kill Mexican nationals who allegedly throw rocks at them, regardless of whether the alleged rock-throwing poses an imminent risk of death or serious injury to the agents or anyone else, and regardless of whether other, non-lethal means are available to avert any such risk," the complaint states.

Quintero claims that defendant Border Patrolman Dorian Diaz killed her husband on June 21, 2011 after he tried to cross the border from Tijuana with nonparty Jose Ibarra-Murrieta.

After encountering Diaz and co-defendant Border Patrolman Chad Nelson, Murrieta and Yanez fled on foot, Quintero says. After a scuffle, Nelson wrestled Murrieta onto a dirt road by the border fence.

Yanez evaded the agents by climbing a tree.

Though the "witnesses' versions of the critical events differ sharply," the widow says, Yanez was "wedged into the tree on the southern side of the primary fence." From there, the agents claimed, Yanez threw two rocks, "somewhere between the size of a golf ball and a baseball."

Apparently, he missed.

Yanez then threw a nail-studded board at Nelson which hit him in the head, the complaint states.

"Agent Nelson acknowledges that then, without any warning and any further alleged throwing of a rock or a board by Yanez, Agent Nelson pulled away from the scuffle with Murrieta. Agent Diaz removed his sidearm from its holster, uttered not a single additional word, and shot Yanez in the head," the complaint states.

"Agent Diaz likewise acknowledges that, although Yanez had allegedly raised his hand as if to begin a throwing motion, Agent Diaz did not see any rock or anything else in Yanez's hand, which Agent Diaz acknowledges was closed into a fist. Agent Diaz then shot Yanez in the head. Yanez fell out of the tree, dead or dying, on the southern side of the primary fence. Neither Agent Nelson nor Agent Diaz attempted to render any assistance to Yanez."

Quintero says the Border Patrol has told conflicting accounts about what happened.

One Border Patrol spokesperson told Fox News Latino that two men attacked the agents with a concrete slab. Another spokesperson told the press that another man tried to cross into the U.S. with Yanez and Murrieta, according to the complaint. Murrieta said that Yanez never threw anything at either agent, and that from Yanez's vantage point in the tree, it was impossible for him to throw any object with "lethal force or accuracy," according to the complaint.

Murrieta said that Diaz and Nelson beat him as he lay on the ground. He claimed that before Yanez was shot dead, the only object Yanez held in his hand was the cellphone he was using to record the attack, Quintero says.

"Whichever of these two versions of the shooting the jury believes, the agents unlawfully used excessive, lethal force against Yanez," the complaint states.

Quintero says the agents could have used "non-lethal alternatives," or let Murrieta go.

"(H)e posed no imminent risk of death or serious injury to the agents or anyone else, and apprehending him was simply not worth the cost of a human life," the complaint states.

The policy encourages Border Patrol agents to shoot to kill, then lie and say their victims were throwing rocks, the widow says.

"Rocks are ubiquitous along the border, so agents can always plausibly, but falsely, claim that rocks had been thrown at them," the complaint states.

A 15-year-old boy was shot and killed on the Mexican side of the border in 2010, after agents falsely claimed he was throwing rocks, Quintero says.

She claims that agents made similar claims after shooting into a crowd and killing a man picnicking in a park.

Quintero says the rocking policy is tacitly approved by U.S. government officials.

"In recent years Border Patrol agents acting pursuant to the rocking policy have shot and killed at least thirteen persons and have seriously injured more. The rocking policy has the imprimatur of the highest officials of the Department of Homeland Security. This institutionalized, systematic use of excessive, lethal force violates the U.S. Constitution, U.S.-ratified treaties, peremptory international norms, and our fundamental national values," the complaint states.

Quintero claims that since record-keeping began, just one police officer has been killed by a thrown rock - in 1942.

Defendants include Department of Homeland Security Secretary Janet Napolitano, Commissioner of Customs and Border Protection Thomas Winkowski, former Acting Commissioner David Aguilar, former Commissioner Alan Bersin, former Deputy Commissioner Kevin McAlleenan, Chief of Border Patrol Michael Fisher, Chief Patrol Agent Paul Beeson, former Acting Chief Patrol Agent Richard Barlow, and Acting Deputy Chief Patrol Agent Rodney Scott.

Quintero asks the court to enjoin the rocking policy, and she seeks punitive damages and costs.

She is represented by Gerald Singleton of Encinitas.

The Department of Justice did not immediately respond to a request for comment.

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