The first of our top ten justice stories of 2015 is about law enforcement violence on the U.S.-Mexico border, where we live and work. While stories of police brutality in cities around the United States will make an appearance further up our list, the attempt to rein in "The Green Monster" is our #10 pick for the most important justice story of the year.
Important justice stories are impossible without good reporting. We are grateful to Bob Ortega and the Force at the Border page from the Arizona Republic, and to Nigel Duara of the Los Angeles Times, for all of their great work this year.
10. The end of Border Patrol immunity?
This September, United States Border Patrol Agent Lonnie Swartz was indicted for second-degree murder, the first-ever indictment of an agent for a cross-border shooting. Back in 2012, Swartz allegedly killed 16-year-old Jose Antonio Elena Rodriguez by shooting him 10 times, including 8 shots to the back. Swartz was on the U.S. side of the border fence in Nogales, Arizona; José was on the other side in Nogales, Sonora.
Swartz has claimed that he acted in self-defense against people throwing rocks over the fence. According to the forensic analysis done by law enforcement in Sonora, Swartz “emptied his service handgun on the 16-year-old, reloaded, and kept firing.” Two videos of the incident were recently disclosed to the defense under a protective order.
Swartz pled not guilty in October, and he is presumed innocent.
But this rare indictment of a CBP officer suggests that maybe the nationwide calls for reform and accountability of law enforcement have finally reached the nation's largest law enforcement agency.
Watch the throne
Last year, former Drug Czar R. Gil Kerlikowske was confirmed as Commissioner of Customs and Border Protection. He promised to bring more transparency to the agency, which he believes expanded too quickly after 9/11. Last May, he released the results of a study by the Police Executive Research Forum that reviewed 67 case files involving CBP's use of deadly force between 2010 and 2012. That report suggested that CBP officers sometimes created situations that led them to use deadly force, and recommended changes to CBP's use-of-force policy. Kerlikowske removed CBP's head of internal affairs and temporarily replaced him with Mark Morgan, an FBI investigator who promised to review the cases mentioned in the PERF report. Morgan was back at the FBI by the end of 2014.
This year, CBP conducted a months-long trial of body cameras (more on body cameras coming later in our top ten), ultimately deciding against requiring officers to wear them. The top two posts in CBP Internal Affairs were vacant until June. In November, the Department of Justice announced that its investigation into the death of Anastasio Hernandez Rojas would end with no charges. Hernandez Rojas died from a heart attack after being shocked with Tasers by agents at the San Ysidro border crossing. This summer, Kerlikowske reported that the CBP had cleared officers in all but three of the 67 cases under review. Swartz’s shooting of José Antonio Elena Rodriguez was one of the final three cases.
Making the border patrol pay (maybe).
The Swartz case highlights the fight for Border Patrol accountability in civil court as well. The parents of José Antonio Elena Rodriguez sued Lonnie Swartz in civil court for violating their son's civil rights, and Swartz moved to dismiss the lawsuit. Swartz made two arguments: first, that the right against excessive force found in the Fourth Amendment does not apply to foreign nationals on foreign soil; and second, that he was entitled to qualified immunity from liability.
Qualified immunity, one of the big legal stories of last year,
shields public officials from being sued for actions that fall short of violating a clearly established statutory or constitutional right.
Swartz argued that foreign nationals on foreign soil are not protected by the U.S. Constitution. On the other hand, if foreign nationals do have Fourth Amendment rights on the other side of the border, those rights are not "clearly established." Swartz relied on this year's en banc, per curiam decision of the Fourth Circuit Court of Appeals, Hernández v. United States. The plaintiffs in Hernández are the parents of Sergio Adrian Hernández Guereca. In 2010, 15-year-old Sergio was shot in the head and killed by Border Patrol agent Jesus Mesa, Jr., who was standing on the El Paso side of the U.S.-Mexico border. That court, which has authority over cases originating in Texas, Louisiana, and Mississippi, ruled that foreign nationals on foreign soil, without a "significant voluntary connection" to the U.S., cannot raise Fourth Amendment claims. The court found that Mesa was protected by qualified immunity, because any right that Hernández may have is not "clearly established."
Chief District Judge Raner Collins disagreed with the Fourth Circuit, ruling that in Rodriguez's case, the Fourth Amendment does apply. Judge Collins also rejected Swartz's argument about qualified immunity, noting:
at the time he shot J.A., Swartz was an American law enforcement officer standing on American soil and well-aware of the limits on the use of deadly force against U.S. citizens and non-citizens alike within the United States.
The plaintiffs in the Hernández case, which is now Hernández v. Mesa, have asked the Supreme Court to take the case. On November 30, the Supreme Court asked the Solicitor General to weigh in, suggesting that the Supreme Court may decide to hear the case next year. Meanwhile, the criminal trial of Lonnie Swartz has been continued until January. The future of Border Patrol immunity and accountability is likely to continue to be a big story in 2016.