A federal lawsuit to be filed this morning in Arizona accuses the U.S. Border Patrol of civil rights violations and the wrongful death of a 16-year-old Mexican boy who was gunned down almost two years ago. Attorneys in Tucson will file the lawsuit on behalf of the family of Jose Antonio Elena Rodriguez, who was shot in the back at least 10 times, allegedly by Customs and Border Protection (CPB) agents, as he walked down the street in October 2012.
“For everyone else, this is just a news story. For me and my family it is real,” Araceli Rodriguez, Jose Antonio’s mother, told Fusion. “Sometimes I still cannot believe he is gone.”
This is the second such suit to be filed against the U.S. government. Earlier this month, a federal appeals court ruled in a separate case that the family of Sergio Adrian Hernandez Guereca has the constitutional right to sue the U.S. agent who killed the 15-year-old in Juarez, Mexico, in 2010. Hernandez Guereca died after he was shot in the face when he poked his head out from behind a train trestle near the border, according to the ruling. He was reportedly playing a game where he and friends would tag the border fence, according to the court document (you can read it in its entirety here.)
The ruling may help determine whether the family of someone killed by U.S. agents in foreign border regions contiguous to the United States has the right to sue in U.S. courts. More specifically, the case may also force the Department of Homeland Security to release the names of border agents involved in Rodriguez’s death.
“If the U.S. CBP can shoot nationals over the border with impunity, we are in a dangerous situation,” said Lee Gelernt, deputy director of the American Civil Liberties Union Immigrants’ Rights Project. “A bedrock principle in this county is that courts will be involved to enforce constitutional and civil rights.”
Fusion contacted Customs and Border Protection requesting comment on the case, but did not hear back at time of publication.
Fusion Investigates last year revealed an alarming pattern of cross-border killings, similar to that of Jose Antonio Rodriguez.
Studies by other news organizations have found there were 487 use-of-force incidents in the Tucson Sector of the border between the years 2010 and 2012, when Jose Antonio Rodriguez was killed. Of those, 233 cases were in the Nogales area where Rodriguez lived.
Nationwide, Border Patrol agents were responsible for 15 deaths between 2011-2012, according to a report on NPR. Thirteen of those deaths were caused by shootings. Another source finds that CBP agents have killed 28 people since 2010.
Ninety-seven percent of 809 abuse allegations filed against the Border Patrol resulted in “no formal decision,” according to public records by the American Immigration Council.
The high number of non-decisions highlights the need for greater accountability, activists insist.
The new commissioner of Customs and Border Protection, Gil Kerlikowske, acknowledges the problem and has vowed to open up his agency to greater scrutiny. Kerlikowske told NPR he promises to follow through on unresolved cases, including the killing of Jose Antonio Rodriguez.
“I’ll be examining these [cases]” He said, “[We are working] at being more open to the public, and the people we serve about what our actions are.”
But legally, options are running out for the victim’s family. They want to see a criminal prosecution, but that can only be brought by the Department of Justice. A spokesman for the department declined to comment on whether a case was imminent, citing ongoing investigations.
“At this point, almost two years after Jose Antonio’s death, the family has no choice but to bring a civil suit,” said Gelernt. “And if the courts were to now accept the government’s position— that there can be no civil suit— then we may have run out of options.”
In other words, if the Rodriguez case is rejected, U.S. agents will be allowed to continue operating with virtual impunity, unless the CBP decides to act on its promise of transparency and discipline.
UPDATE: A federal district court has ruled that this case can move forward. The American Civil Liberties Union brought the case, Rodriguez v. Swartz, arguing that the U.S. Constitution applies in this case. The agent sought to have the case dismissed, but late on July 9, U.S. District Judge Raner Collins in Tucson, Arizona, denied that request.
(Editor’s note: This story was updated at 9:30 am to reflect the nature of the game that Hernandez Guereca was playing with friends at the time of his shooting. It was updated again at 2:30 pm to include quote from Rodriguez’ mother)