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Judge Clears Way For Trial Of Border Agents Over Taser Death

Rojas Tasing

A U.S. District Court judge has ruled that border agents who beat and shot a man with a Taser won't get summary judgment and can go to trial.

A civil case brought by the relatives of a man who died after being beaten and shot with a Taser by U.S. border agents can go to trial. A federal judge in San Diego ruled against the agents’ request for summary judgment in the case, saying valid questions of constitutional rights were at stake.

“It’s very good news,” Maria Puja, the wife of the deceased man, Anastasio Hernandez-Rojas, said in Spanish. “We’ve been seeking justice for more than four years and it seems our wait is almost over.”

Hernandez-Rojas died of a heart attack on May 28, 2010 near the San Ysidro Port of Entry after agents working for the U.S. Border Patrol and Customs and Border Protection beat him and shot him with a Taser. Cell phone videos taken by witnesses show Hernandez-Rojas, a Mexican national and long-time San Diego resident, on the ground surrounded by agents and calling out for help.

His family alleges that Hernandez-Rojas’ First and Fourth Amendment rights were violated when agents beat him after he asked for help, using excessive force. They also allege that the death of Hernandez-Rojas has deprived his children of their 14th Amendment due process right to associate with their father.

Eight agents and four supervisors are named as defendants in the lawsuit. They have claimed that using force against Hernandez-Rojas was justified because he posed a threat to the officers.

In his ruling, U.S. District Court Judge M. James Lorenz wrote: “The sheer number of officers available at the scene demonstrates rather strongly that there was no objectively reasonable threat to the safety of any one other than Anastasio.”

A spokesman for CBP said the agency could not comment on pending litigation in order to preserve due process.

CBP has come under increasing pressure from the public and lawmakers to increase transparency and improve oversight of agents’ use of force. Since Hernandez-Rojas died, the Southern Border Communities Coalition, a watchdog group, has documented 30 civilian deaths at the hands of Border Patrol and CBP agents.

A report conducted last year by the independent Police Executive Research Forum found that some agents appeared to intentionally block the escape route of assailants in order to justify the use of deadly force. CBP, which commissioned the report, had refused to make it public even after the Los Angeles Times leaked its contents earlier this year.

CBP finally released the report in May.

CBP Commissioner Gil Kerlikowske, who took office in March, has pledged to increase transparency and accountability at the agency. He replaced the agency’s internal affairs chief in June.

Last month, Kerlikowske said Border Patrol agents would begin testing the use of body cameras at its training facility in New Mexico. He also said CBP would begin criminally investigating officers suspected of using excessive force and committing other abuses.

Andrea Guerrero, a member of the Southern Border Communities Coalition, said the announcements were promising.

“We are heartened to see the steps that the new commissioner of CBP is taking to be more transparent and accountable,” she said.

Besides the Hernandez-Rojas Tasing case, Guerrero said there were at least a dozen other civil cases involving CBP and Border Patrol agents making their way through the courts. The Hernandez-Rojas case will be among the first to go to trial.

“We’re seeing a good trend right now in the civil court system on these cases, where judges are saying the agents and the supervisors are held to the same standard as the rest of us,” Guerrero said. “They are not above the law and they have to answer for their actions.”

Unless a settlement is reached, the Hernandez-Rojas trial is expected to be in court next year.


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