Nearly two years after her teenage son was shot to death in Nogales, Mexico, by one or more Border Patrol agents, Araceli Rodriguez is headed to court to find out who killed him.
Attorneys for Rodriguez, including the American Civil Liberties Union, filed suit in federal district court in Tucson Tuesday, seeking civil damages against the agents involved in what their suit terms the "senseless and unjustified" death of 16-year-old Jose Antonio Elena Rodriguez, on Oct. 10, 2012.
The suit alleges that in shooting and killing the teenager, agents "used unreasonable and excessive force" in violation of Jose Antonio's Fourth and Fifth Amendment rights and that their actions were not legally justifiable or necessary. The suit doesn't specify an amount sought in damages.
Customs and Border Protection officials declined comment, saying they cannot talk about pending litigation.
'I want to see the faces'
Araceli Rodriguez could not be reached Monday. In an interview with The Arizona Republic earlier this year, she said, "I'm looking for justice. I want to see the faces of my son's killers.... I don't know the names of those people; I don't know anything about them."
The killing of Jose Antonio was one of several highly publicized cases that helped lead to changes over the past year to how Customs and Border Protection handles the use of deadly force by CBP officers and Border Patrol agents. His death was featured prominently in a December 2013 investigation by The Republic that revealed a lack of transparency and accountability in deadly use of force by Border Patrol agents and CBP officers. That investigation documented 42 cases since 2005, including some not previously reported, in which agents or officers had killed people, including 13 U.S. citizens. Four more people have been killed by Border Patrol agents this year.
The Republic, through the use of information requests, has found seven cross-border shooting incidents involving allegations of rock throwing.
SPECIAL PROJECT: Force at the border
CBP and its parent agency, the Department of Homeland Security, earlier this year issued new guidelines more tightly restricting when agents can use deadly force, instituted additional training and promised greater transparency in investigating use-of-force incidents.
However, the identities of the agent or agents who shot Jose Antonio remain secret. CBP has denied Freedom of Information Act requests from The Republic for those identities and for video from surveillance cameras, mounted on towers 150 feet from where the boy was shot, that may have recorded the incident.
Rodriguez's lawsuit comes less than a month after a federal appeals court ruled that the family of another Mexican teen, killed in Ciudad Juarez in 2010, has the constitutional right to sue the Border Patrol agent who shot him across the border.
That ruling, by the 5th Circuit Court of Appeals, was the first nationally to determine that the family of someone shot in Mexico by agents firing from U.S. soil has the right to sue in this country.
"That is an important precedent for our case," said Luis Parra, one of the attorneys representing Araceli Rodriguez.
As The Republic reported, on the October evening Jose Antonio was killed, Border Patrol agents in Nogales, Ariz., were chasing two men who were climbing over the fence into Mexico. Agents were responding to a 911 call about men carrying bundles over the fence into Nogales, Ariz., when two men dashed out from behind a house on the U.S. side and clambered onto the border fence. As agents and Nogales police officers tried to arrest the men, rocks were thrown over the fence from the Mexican side, they reported.
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One or more Border Patrol agents fired repeatedly through the fence, hitting Jose Antonio in the back and head at least 10 times. But, according to Isidro Alvarado, a security guard, Jose Antonio was not throwing rocks. Alvarado said the boy was walking down the sidewalk on Calle Internacional, about 20 feet ahead of him, when two youths ran past them away from the fence. Alvardo said he then heard gunshots and saw Jose Antonio fall dead.
Neither Alvarado nor the Nogales police officers on the U.S. side reported hearing any warnings or commands before at least 14 shots were fired by the Border Patrol. Customs and Border Protection's use-of-force guidelines require agents to issue a verbal warning, when possible, before using deadly force.
"Just prior to the shooting, Jose Antonio was visible and not hiding ... he did not pose a threat. He was doing nothing but peacefully walking down the street by himself when he was gunned down. He was not committing a crime, nor was he throwing rocks, using a weapon, or in any way threatening U.S. Border Patrol agents or anyone else," the complaint alleges.
Earlier this year, CBP released a study of its use-of-force practices by the Police Executive Research Forum, a non-profit law-enforcement research organization. The forum reviewed all deadly use-of-force cases from January 2010 through October 2012. The report, describing how agents respond to rock throwing, said, "Too many cases do not appear to meet the test of objective reasonableness with regard to the use of deadly force...."
The report added, "The more questionable cases generally involved shootings that took place through the IBF (international border fence) at subjects who were throwing rocks at the agents from Mexico."