Portside

For six long years the family of Jose Antonio Elena Rodriguez have been caught in a legal saga seeking justice for the 16-year-old who was killed by a US border patrol agent who fired 16 times from Arizona into Mexico.

Ending criminal proceedings that have dragged on since 2012, a jury last week cleared agent Lonnie Swartz of second-degree murder and could not agree on a verdict for two lesser charges of manslaughter. The shooting has compelled judges up to the US supreme court to deliberate whether the American government can be sued in civil court for wrongful deaths on Mexican soil – placing the incident, and eight other cross-border fatal shootings, at the center of scrutiny surrounding the use of force by agents in response to allegedly thrown rocks.

However, lesser known are similar shootings which have occurred inside the US. Such as that of Francisco Javier Dominguez Rivera, who was shot and killed “execution-style”, in the language of a wrongful death complaint the government paid $850,000 to settle. An Arizona agent responding to an alert from the National Guard in 2007 alleged Rivera threatened him with a rock. 

Ten years later, the Department of Justice settled another wrongful death claim involving a rock-throwing allegation in California for $500,000.

The shootings are only part of a larger litany of Customs and Border Protection agency-related violence inside the US. Encounters have proven deadly for at least 97 people – citizens and non-citizens – since 2003, a count drawn from settlement payment data, court records, use of force logs, incident reports and news articles.

From Maine to Washington state and California to Florida, the deaths stem from all manner of CBP activity. Border agents manning land crossings and a checkpoint have used deadly force, as have agents conducting roving patrols – up to 160 miles inland from the border.

Pedestrians were run over by agents. Car chases culminated in crashes. Some have drowned, others died after they were pepper-sprayed, stunned with tasers or beaten.

But the majority of victims died from bullet wounds, including shots in the back. The bullets were fired not only by agents conducting border enforcement operations, but also those acting in a local law enforcement capacity and by agents off-duty, who’ve shot burglary suspects, intimate partners and friends.

Among the incidents, one agent also died following an exchange of gunfire with a family member who was found dead. Another agent was killed by friendly fire. Border agents sustained non-deadly shots in two incidents.

The picture compiled from official documents and news reports is incomplete, but indicates that at least 28 people who died were US citizens. Six children, between the ages of 12 and 16, were among the victims whose ages were disclosed.

The federal government has paid more than $9m to settle a fraction of the incidents thus far. A Customs and Border Protection spokesperson did not comment on those cases but pointed to the agency’s National Use of Force Review Board, which has investigated 30 significant incidents since June 2015. Each of its 17 reports made public have found the use of force to be compliant with agency policy in effect at the time. Local boards also review incidents, but only those that do not result in serious injury or death.

Here, the Guardian looks at eight fatal encounters with CBP agents that happened inside the United States and the larger patterns of incidents to which they relate.

Agents getting in harm’s way

A US citizen and mother of five, 32-year-old Valeria Munique Tachiquin Alvarado was shot and killed by Justin Tackett, a border patrol agent and former police officer, in a suburb of San Diego, California in the fall of 2012. At the time of press, a wrongful death suit filed by Alvarado’s family was nearing judgement after four years of litigation. According to court records Alvarado attempted to drive away from an apartment where Tackett and six other plainclothes agents had begun questioning her and others without a warrant. 

After Tackett climbed on and then off the hood of Alvarado’s car, her family’s suit alleges, she attempted to reverse away from the agent, who fired at Alvarado 10 times, hitting her nine.

“A part of me was taken away and there hasn’t been justice,” Alvarado’s mother Annabell Gomez told Guardian. “Everyday I wish it was a dream, but I wake up and she’s not here. Life is not the same without her smile,” said Gomez. “She loved her kids and life.”

As a sheriff’s deputy in neighboring Imperial county in the years prior, Tackett was suspended four times following a string of incidents that took place in the span of 19 months, involving unlawful searches, illegal detentions and reckless behavior, before he resigned upon receiving a termination notice, court documents detail.

A review of 15 CBP shootings, each targeting the drivers of moving vehicles over the course of two years, was conducted the year after Alvarado’s death by the Police Executive Research Forum (PERF). A nonprofit overseen by a board of police chiefs, that was commissioned by CBP to study its use of force policy, PERF found that in many cases, border agents “intentionally put themselves in the exit path of the vehicle”, thereby “creating justification for the use of deadly force”, with some shots “taken out of frustration”.

Unreasonable force

Settled by the Department of Justice under attorney general Jeff Sessions for $500,000 in 2017, the shooting of 41-year-old unarmed father of two Julian Ramirez Galindo took place near the California border in February 2014. Agent Daniel Bassinger alleged that Galindo, who was a street musician in Tijuana, hurled a basketball-sized rock at him from above. But according to the family’s lawyer Scott Hughes, the medical examiner’s report is at odds with the agent’s version of events, detailing a man of slight stature who died from two downward trajectory bullet wounds.

PERF’s review of CBP’s use of force policy the year prior recommended a revision prohibiting deadly force against “subjects throwing objects not capable of causing serious physical injury or death”, citing that in some cases, “agents put themselves in harm’s way” instead of moving out of range. “Too many cases do not appear to meet the test of objective reasonableness,” the report notes, recommending corrective action be taken if agents use deadly force when alternative responses are possible.

Bassinger was back at work within six days, NBC San Diego reported. One month later, then CBP chief Michael Fisher enacted PERF’s recommendations. But the lawyer Hughes, a former military police officer, thinks the problem runs far deeper.

“We can no longer tolerate shooting unarmed people in the United States,” he told The Guardian. “These officers are woefully under-trained,” he said. “They find themselves in situations they don’t know how to react in and they resort to shooting their way out. When in fact, they really don’t need to.”

Shootings found to be justified

In May 2014, unarmed 31-year-old Jose Luis Arambula died in a pecan grove in his native Arizona, shot behind his left ear. After bailing from a car later found to be filled with marijuana, Arambula ran from agents before one fired at him multiple times from a distance of 60-70ft, according to the local Pima county sheriff’s office, which investigated the shooting. That office, citing the agents’ account that Arambula made a “punching out” motion towards them, found deadly force to be justified. But in the view of lawyer Jesus Romo Vejar, who filed a wrongful death suit on behalf of Arambula’s mother, the scenario was quite different. “It was a bad shooting,” he said.

The case is among a set of shootings that have been dismissed on technicalities or in favor of the defendant agents, including suits filed by the family of unarmed 18-year-old citizen Juan Mendez, who was shot in the back from a distance while running from an agent in Texas in 2010; unarmed 20-year-old Gerardo Lozano Rico, who was also shot in Texas in a fleeing car in 2011; unarmed 19-year-old citizen Carlos Lamadrid, who was shot in the back while climbing a ladder at the border fence in Arizona in 2011.

In many cases, “the facts are favorable”, said the lawyer Vejar. “But the judges are not favorably deposed.”

Northern states

In one of at least eight fatal encounters in northern border states, 30-year-old Alex Martinez, a US citizen from Washington state who had a mental illness, was shot 13 times after his Spanish-speaking father called 911 in 2011, according to a complaint sent to the attorney general and secretary of homeland security in 2013. Describing the border patrol’s arrival alongside local law enforcement officers, Martinez’s father told local community organizers: “The first thing they asked was, ‘Is he from here or is he from Mexico?’” Local law enforcement alleged that Martinez hit a sheriff’s deputy with a hammer, reported a Washington newspaper. But his family disputed that account, saying that Martinez held a flashlight and tripped. “We saw it with our own eyes and without there being any need for it,” said his father. “They did something unjust. Something that should not be taken lightly,” he said. “And border patrol did it all.” The local sheriff’s office found the shooting to be justified.

An agent stationed in Michigan shot and killed a person at a card game while off duty. In Minnesota, a pedestrian died after a fatal accident involving a car driven by a border agent. 

On-duty border agents serving as back-up to local law enforcement have shot and killed two people in separate incidents in Maine, both involving armed men of whom one fired at agents, according to the state’s attorney general which found the shootings to be justified.

In Montana, agents on patrol shot Jeff Suddeth, a US citizen who they said had a stun gun. At the inquest which cleared agents of wrongdoing, Suddeth’s mother, who described her son as bipolar, told local media: “He lived 36 years, and in 15 minutes they took his life. I guess that’s the law.”

In an incident unrelated to immigration enforcement, 21-year-old US citizen Steven Martin was shot and killed in Yuma, Arizona in 2008. An agent was driving by the gas station, where Martin was parked, when a friend, who was black, allegedly ran out of the store holding two cases of beer. The agent fired on Martin’s car, according to a wrongful death suit filed by his mother. The suit also alleged that the agent did not subsequently request medical help for Martin, who was bleeding on the scene and died four hours later, on Christmas Eve. The case settled for $350,000 in 2013.

With the exception of “regulations prescribed by the attorney general”, border agents with reasonable grounds have the authority to make non-immigration arrests, “for any felony cognizable under the laws of the United States”, under the Immigration and Nationality Act. No such regulations can be readily identified however, and the Department of Justice did not respond to multiple requests for comment.

Every year over Memorial Day weekend, Martin’s family gathers to celebrate his memory. “My son was an amazing person who had a heart of gold,” his mother said. “He would give his last dollar to help someone out. He was a hard worker, spent his money on his cousins and sister and brother. He loved being around his nephew and would have loved to meet his nieces. There are still times I don’t know how I can go on without him.”

‘Non-lethal’ force

Picked up by agents more than 70 miles from the border, in Orange county, California, Tomas Orzuna was denied medical care after agents beat, pepper-sprayed and then handcuffed him in a suffocating, face-down position, according to a lawsuit brought by Orzuna’s parents, which does not specify his age.

Force considered non-lethal has proven otherwise in a variety of circumstances. A man was pepper-sprayed at the Rio Grande river and then drowned. A man was hit with a stun gun inside a rental car and it immediately exploded. Four men were Tasered or beaten in separate incidents and then died. Agents fired explosives at a boat filled with migrants and one woman drowned.

Deaths have also occurred through alleged neglect or malice. A mother and her 16-year-old daughter drowned after agents ordered them to swim back across the Rio Grande river. Another 16-year-old was compelled to drink liquid meth by agents, after telling them it was juice, and died. An on-site paramedic at a border patrol station assessed that a man in custody was faking a seizure, a report by the San Diego medical examiner’s office detailed, but he had ingested a packet of drugs and died after being left alone in his cell.

Among cases which have settled, payments vary widely. Orzuna’s parents received $15,000 in 2012. The family of Anastacio Hernandez-Rojas received a $1m settlement in 2017. Beaten and Tasered five times, at a land crossing in California, Hernandez-Rojas’ cries for help were captured on video. 

High-speed crashes

In August 2017, 18-year-old Israel Caballero, a US citizen, was among three people killed in a crash following a high-speed border patrol pursuit outside of San Diego, California. Initially stating that a license plate check linked the car to a homicide, the border patrol has since said no one in the vehicle was wanted of any crimes. The father of a one-year-old, Caballero worked as a landscaper, following a stint of competitive boxing throughout his youth. “What happened to him was totally devastating,” coach Juan Medina said of the former champion. “Israel was a very respectful young man.” 

The incident is the latest among a string of fatal crashes that raise questions about CBP’s stated vehicle pursuit policy, which dictates that agents can commence and continue emergency driving only as long as the benefits outweigh the immediate danger posed.

In an Arizona crash resulting in a $350,000 wrongful death settlement, a car flipped when agents in pursuit threw a tire deflation device in the road, killing a 40-year-old mother of three. In a Texas crash, an eyewitness testified in court that a CBP vehicle bumped into the van they were pursuing. The crash left bodies and personal belongings strewn across a highway, resulting in nine fatalities. “When it comes to human smuggling it becomes tough,” a Texas police chief told the AP regarding pursuits. “You do look at it in a way that these people were just trying to come here to have a better life,” he said.

Off-duty shootings

Shot by an off-duty CBP agent using his service weapon, 15-year-old Darius Smith died near a train station in a suburb of Los Angeles in May 2015. The Los Angeles county sheriff’s office said it would not release video of the incident, but that the video backed up the agent’s account that Smith and two other teens attempted to rob him. Conflicting details swirl around a bb gun investigators say they found “close by” Smith’s body – but was not spotted by a man who held the teen’s hand until paramedics arrived, the Los Angeles Times reported. A football player at his high school, Smith dreamed of making it to the NFL his mother told local media. “He always had a smile on his face,” said a friend who now plays college football, dedicating his games in Smith’s honor.

The incident is among ten off-duty shootings by CBP agents since 2005 identified by the Guardian. 

Since early 2018, a Texas border patrol supervisor was charged with murdering his romantic partner and her one-year-old son. A CBP officer in Miami shot and killed a man who entered her home, suspected of burglary, and a Texas agent shot a man described as a childhood friend. 

Previous years have seen the federal government pay a $750,000 settlement to the family of Bassim Chmait, a 20-year-old Arab American; and an agent was incarcerated after shooting 27-year-old Adam Thomas, a father of two. Both men were the neighbors of agents, while a number of other off-duty fatal shootings have involved intimate partner violence and domestic disputes.

[The Guardian’s list of fatal encounters with CBP agents can be accessed here. This story is published in collaboration with the Criminal Justice Project. Reporter Sarah Macaraeg can be contacted at sarah.macaraeg@gmail.com.]