Originally Published in the Los Angeles Times
Kate Morrissey - February 4, 2021
The filing is with the Inter-American Commission on Human Rights, part of the Organization of American States. Hernandez Rojas’ case is the first the international tribunal is hearing about an extrajudicial killing by U.S. law enforcement. It has heard cases about extrajudicial killings by many other governments in the Americas.
The document, filed by attorneys with UC Berkeley’s International Human Rights Law Clinic and Alliance San Diego on Jan. 27 and made public Thursday, condemns systemic issues in U.S. law enforcement agencies, in particular Customs and Border Protection, that it says allow for impunity when officers or agents kill someone.
Based on police records and testimony from three former high-ranking oversight officials at the Department of Homeland Security, the document names dozens of federal law enforcement officials that it says were involved in the killing of Hernandez Rojas and subsequent actions that blocked local police and other oversight entities from being able to fairly evaluate the case.
Among those it names is Rodney Scott, former head of the Border Patrol’s San Diego sector and the current chief of the entire agency.
The Department of Homeland Security, Customs and Border Protection, Border Patrol, and Immigration and Customs Enforcement did not immediately respond to a request for comment. Homeland Security’s Office of Inspector General declined to comment.
“The investigations of Anastasio Hernandez Rojas’s death were predestined for impunity,” the filing says. “The actions of border agents to interfere with the investigation and conceal or destroy evidence, the disinterest of police and disciplinary investigators in uncovering the truth, and the inaction of federal prosecutors combined with permissive use of force standards and secret proceedings shielded border agents from accountability. The international human rights case is as much about what happened after Hernandez Rojas’s killing as what caused it.”
Hernandez Rojas had been caught crossing illegally into the United States on May 28, 2010, and taken to a Border Patrol station. There, an agent kicked him, renewing an old injury to his ankle and causing him to limp, based on video footage reviewed by the case’s legal team, before immediately taking him to the border to send him back to Mexico.
While Hernandez Rojas was being deported at the San Ysidro Port of Entry, federal officials beat him, kicked him, pinned him with their knees and shot him with a Taser as he lay on the ground in handcuffs, according to the court documents. By the time he reached the hospital, he was brain-dead, and he died days later.
Two autopsy reports found that his death was a homicide.
At least 17 federal officials — a combination of Border Patrol agents, CBP field officers and ICE officers — were involved in the killing of Hernandez Rojas, according to the filing. Among them were at least four officials who had supervisory roles.
Eight officials — Border Patrol agents Gabriel Ducoing, Philip Krasielwicz and Derrick Llewellyn; ICE officers Andre Piligino and Harinzo Narainesingh; and CBP officers Alan Robert Boutwell, Kurt Sauer and Jerry Vales — admitted to police detectives during the investigation to using force against Hernandez Rojas, according to court records. Vales used his Taser four times, including once directly on Hernandez Rojas’ chest, the document says.
Nine other officials — Border Patrol agents Edward C. Caliri, Guillermo Avila, Ramon DeJesus and Scott Carlson; and CBP officers Robert Petrin, Joseph Arcia, Benjamin Michael Brown, Paula Sable and Ernest Kalna — were present and watched the situation unfold, the filing says.
The agencies did not immediately respond to requests for information about whether they still employ those officials. The filing asserts that many of the officials are probably still employed with the agencies.
According to records with the international tribunal, the U.S. government has argued that because some members of the Hernandez family received a $1-million settlement in a civil suit in 2017, the human rights case should not proceed.
But the case before the international tribunal is based as much on what happened after the killing of Hernandez Rojas as what caused it.
When the officials involved in killing Hernandez Rojas realized many people were watching them from a nearby pedestrian bridge, they dispatched more officers, along with employees from Paragon Systems security, to disperse the witnesses and to erase any photo or video evidence they had captured of the incident.
Two witnesses preserved the videos they recorded, and those were later published, causing a public outcry after the images revealed a narrative that contradicted official published accounts.
When reached by phone, a woman with Paragon Systems’ human resources department said, “We have no comment on that at all."
Though the San Diego Police Department had jurisdiction over investigating the incident, federal officials did not follow protocols to notify the department, according to the filing. San Diego police found out from a reporter who contacted them the next day, about 15 hours after Hernandez Rojas had been hospitalized.
Meanwhile, in Washington, high-level federal officials were already working to spin what happened, according to testimony from James Wong, then-deputy assistant commissioner for internal affairs at CBP, and James Tomsheck, then-assistant commissioner for internal affairs, sent in written affidavits to the Inter-American Commission and cited in the filing.
Then-Deputy Commissioner David Aguilar immediately began pushing a Border Patrol version of events that described Hernandez Rojas as combative and resistant as well as standing up and not handcuffed during the incident, according to Wong and Tomsheck. That description contradicted initial reports from CBP officers at the scene.
“There are only two instances where, in my 40 years in law enforcement, was I ordered to falsify reports,” Tomsheck said in his affidavit. “In both of these instances David Aguilar gave me that order.” One of the instances was the Hernandez Rojas case, Tomsheck said.
Aguilar did not respond to a request for comment made through his current place of employment, Global Security and Innovative Strategies.
When use-of-force investigations came up regarding Border Patrol agents, Wong and Tomsheck said, Aguilar would refer to the incidents as “good” shootings before the facts were known.
Border Patrol “often tried to distort and spin many incidents, so that it would not damage its reputation,” Tomsheck’s declaration says. “I have never seen an agency so consumed with its reputation and image. It is afflicted by an institutional narcissism.”
The agency also began its own investigation into the killing even though it did not have jurisdiction. That inquiry blocked the official investigation’s ability to obtain information, according to the court filing.
Scott, then-acting deputy chief patrol agent for the Border Patrol’s San Diego sector, signed an administrative subpoena for the autopsy reports and obtained the reports from Sharp Chula Vista Medical Center and the San Diego County medical examiner’s office.
“Obtaining the autopsy report using an administrative subpoena is illegal and potentially obstruction of justice,” Tomsheck said.
Leslie Aquinde, a spokeswoman for Sharp Chula Vista Medical Center, said the hospital does not have a copy of the autopsy report in its records.
“Sharp HealthCare is obligated to comply with all subpoenas and investigative requests from government agencies, whether federal, state or local, that appear to be lawful,” Aquinde said. “In fact, Sharp has limited ability, if any, to investigate the motivations behind these requests and, therefore, is permitted to rely on the good faith of the government officials and judicial officers who seek these records, as supported and encouraged by federal regulations.”
CBP also did not provide San Diego police with video evidence from its cameras. The agency initially sent footage from the wrong time frame, and then the correct video footage was erased before it could be sent, according to the filing.
Shawn Takeuchi, a spokesman for the San Diego Police Department, confirmed that police had conducted an investigation and forwarded it to the U.S. attorney’s office. He declined to comment on the case before the international human rights tribunal.
For Wong, the actions by CBP suggested a cover-up and underscored questions he already had about the case in reading the initial reports, he said in a phone interview. The fact that Hernandez Rojas was outnumbered and handcuffed was troubling.
“I’ve been in law enforcement a long time, and I’ve seen my share of dead bodies and things that a normal person wouldn’t see. To this day, I recall them at times,” Wong said about his decision to submit an affidavit in the human rights case. “But personally I’ve always tried to do what was right even if it impacted my career, because I’ve got children and as I’ve told them, you have to be able to live with yourself and to be able to look at yourself in the mirror.”
He said a lot of law enforcement officers want to do the right thing.
“But there are some people that should not be in law enforcement,” Wong said. “There are people that shouldn’t be wearing a badge.”
That includes at least some of the officers involved in Hernandez Rojas’ death, he said.
After the witness videos surfaced, Dennis McGunagle, the investigator in charge of the already-closed investigation by the Department of Homeland Security’s Office of Inspector General, declined to reopen the case. That was despite pressure from John Edward Dupuy, who joined the office in 2012 as assistant inspector general for investigations.
“Although some field offices took civil rights cases seriously and carried out thorough investigations, I saw a lack of diligence and investigative work in San Diego,” Dupuy, who now works at the U.S. Department of Energy, said in his affidavit.
The office’s file on the incident, Dupuy said, consisted only of a memo closing the case and the autopsy report.
McGunagle was promoted to deputy assistant inspector general in 2015.
Investigations that happened after those videos surfaced also did not find wrongdoing. In 2015, the Department of Justice announced that it would not prosecute anyone in the case. Grand jury evidence and testimony that the decision was based on have not been made public.
This, the court filing argues, is part of the systemic injustice built into the laws of the United States that protects law enforcement officials and allows them to kill with impunity.
The case asks the international tribunal to recommend that the United States conduct a fair investigation into Hernandez Rojas’ killing and apologize to his family. It also asks the commission to recommend that the United States change laws and policies so that law enforcement officials can be held accountable for unjustified uses of force.
Andrea Guerrero, executive director of Alliance San Diego, said the family and its supporters would like to see a special unit at the Department of Justice created to conduct independent investigations into allegations of criminal wrongdoing by Homeland Security employees.
They would also like to see policy changed so that grand jury proceedings about shootings by law enforcement officers are made public and use-of-force policies amended to be in line with international human rights standards.
These recommendations, the filing argues, would provide some justice for the family of Hernandez Rojas. In addition to his parents and brothers, Hernandez Rojas left behind a wife and five children.
“All of this has been done to look for justice for my husband,” his wife, Maria Puga, said in Spanish. “What we want is for them to accept that they’re guilty. That’s what we’re hoping for, that there’s justice, that they accept that they’re guilty and that they apologize. It’s been more than 10 years, and no one from the government has said, ‘I’m sorry.’”
The commission has reviewed and exposed some of the Americas’ worst human rights violations by security forces, said Roxanna Altholz, co-director of the UC Berkeley law clinic.
“The commission is no stranger to governments who are reluctant to abide by their human rights obligations, and unfortunately more and more the United States is falling in that category,” Altholz said. “The commission does not have coercive power, but we know in the United States — we’ve been living it the last few months — how public scrutiny can lead to structural change.”
The Hernandez Rojas case, like many others before the commission, also calls for the U.S. government to pay for his family’s educational needs, mental-health care and monetary damages.
“It is not a primary ask, but it is an ask that the commission find that restitution is due in order to help the family move forward,” Guerrero said. “They have suffered tremendously [and] continue to suffer.”
For Puga, the most important thing is that her children are given some amount of justice that will allow them an opportunity to heal.
“Those are the most difficult things that have happened to me, seeing how my children have suffered,” Puga said. “These years have been very difficult but also full of fight — to keep pushing, to keep denouncing. It’s been worth it because we are now seeing the light of justice.”