Judge rules Border Patrol chief should remain in lawsuit concerning fatal shooting by agents

By Kristina Davis
5:53 p.m.May 13, 2015

SAN DIEGO — A lawsuit over the fatal shooting of a Mexican immigrant accused of throwing rocks at Border Patrol agents is moving forward, not only against the two agents at the scene, but against the chief of the U.S. agency.

A San Diego federal court judge ruled to keep Chief Michael J. Fisher in the lawsuit earlier this month. It marks a rare instance of a supervisor of his stature being held legally liable for the actions of his subordinates in a wrongful death case.

The chief’s presence in the lawsuit opens the door for a larger examination of the Border Patrol’s use-of-force policies surrounding such “rocking” incidents, an issue that has been hotly debated among law enforcement and civil rights advocates on both sides of the border.

Without the chief, the case would only focus on the 2011 shooting that left 40-year-old Jesus Yañez Reyes dead.

Steve Shadowen, an attorney for Yañez’s family, said the policy has resulted in the “needless deaths” of more than a dozen people along the border.

“This decision is the first step in finally shining a light on a Border Patrol policy that has earned the condemnation of the international human rights community,” he said in a statement.

The Department of Justice declined to comment on the ruling Wednesday.

Fisher, a 28-year veteran of the Border Patrol based in Washington, D.C., served in San Diego in 2006 and 2007, first as deputy chief, then chief patrol agent, according to his biography.

In deciding whether Fisher should be held liable for Yañez’s death, U.S. District Judge William Hayes states in the ruling that supervisors could be liable for their subordinates’ use of excessive force. Liability would apply “if they were on notice of a pattern or practice of excessive force, failed to take corrective action, and that failure foreseeably caused the plaintiff’s injury,” he states, citing case law.

The encounter between Yañez and Agents Dorian Diaz and Chad Nelson occurred at dusk June 21. Yañez and another man, Jose Ibarra-Murietta, had just crossed into the U.S. at Tijuana through a hole in the primary fence and were coming out in a culvert along the secondary fence, according to the complaint.

There was a chase, and Yañez was able to escape back through the hole in the fence. Nelson caught up with Ibarra-Murietta and the two struggled on the ground.

Meanwhile, Yañez ran parallel along the other side of the fence and climbed a tree to keep an eye on his friend during the struggle. (The tree was technically on the U.S. side of the international border, even though it was on the Mexico side of the fence.)

What happened next depends on who you ask.

Nelson told investigators that Yañez threw two rocks at him from the tree during the fight but neither hit him, according to the complaint. Yañez then threw a board studded with nails, which glanced off his hat, he said.

Ibarra-Murietta told investigators that he didn’t see Yañez throw anything, but heard him warn the agents that he would record the scuffle on his cellphone.

Diaz told authorities he ran up at some point during the fight and tried to help his partner. He said he yelled at Yañez to get down, and soon after saw Yañez’s arm go back as if in a throwing motion, according to the complaint. Diaz said he didn’t see anything in Yañez’s hand, which was in a closed fist, but he feared for his safety and that of his partner and fired.

Nelson told authorities that Diaz turned and fired the shot without uttering a word. Diaz denied it in court papers.

The shooting is similar to many others that have drawn ire from the Mexican government and immigrant-rights advocates who say such force is excessive and unlawful.

Border Patrol agents have argued the shootings are justified under the law and the agency’s policy. At the time that policy stated that lethal force can be used when there is reasonable fear of imminent death or danger.

The agency has further pointed to the 1,700 rock assaults against agents in the past five years, and the relatively few times deadly force has been used in response.

The policy was later clarified after a 2013 independent audit found some of the Border Patrol’s rock-involved shootings could have been avoided. The report urged agents to use other tactics if possible — such as move farther away or seek cover.

Chief Fisher initially announced that the Border Patrol had decided to reject the report’s recommendations when it came to its “rocking” policies, the order points out.

Fisher amended the policy six months later at the insistence of the new Homeland Security boss, according to the complaint. He included some of the audit’s recommendations and urged agents to consider the totality of the circumstances, the size and nature of the projectiles and whether the thrower poses an imminent danger of death or serious injury.

While Fisher remains in the lawsuit, other high-ranking officials who were also named, including former Secretary of the Department of Homeland Security Janet Napolitano and former Customs and Border Protection Commissioner Alan Bersin, were thrown out.

The judge decided in his May 1 ruling that those officials were too far removed from intimate knowledge of the agency’s policies and use-of-force incidents to be held liable.

“Instead, the facts alleged (in the complaint) suggest that the Chief of Border Patrol, not the Secretary of DHS or Commissioner of CBP, is directly responsible for implementing Border Patrol training programs,” the order says.

The judge dismissed the government’s argument that case law surrounding supervisory liability was unclear at the time of the shooting.

The judge also ordered Agent Nelson to remain part of lawsuit on account of possible constitutional violations against Ibarra-Murietta but declined to hold him liable for Yañez’s death.