Case Name: Nora Isabel Lam Gallegos v. United States, et al
Docket No.: 5:14-cv-00136
filed:August 26, 2014
court:U.S. District Court, Southern District of Texas
On September 3, 2012, a United States Border Patrol
agent on boat patrol shot across the Rio Grande River and into Mexico, killing
Guillermo Arevalo Pedraza (“Mr. Arevalo”), an unarmed Mexican national.
At the time of the shooting, Mr. Arevalo was with his wife and two daughters enjoying a birthday celebration at Los Patinaderos Park, near Laredo, Texas. According to the Complaint, the family was watching alongside with several other Mexican families as two Border Patrol Agents patrolling the Rio Grande River attempted to apprehend an unknown individual. Then suddenly, without warning, a border agent opened fire with his assault rifle at the families, fatally striking Mr. Arevalo.
In the aftermath of the killing, the Border Patrol issued a statement asserting that the Agents had been subjected to rocks thrown from the Mexico side of the border. That account of events is contradicted by numerous witnesses who were present in the Park, who insist that no one threw any rocks at the Agents. The Complaint further alleges that even if someone had thrown rocks at the Agents, their response was grossly excessive. Not even the statement issued by the Border Patrol asserts that the alleged rocks posed a risk of death or seriously bodily injury to the Agents or anyone else. And any such assertion would be highly suspect, given how witness statements and a cellphone video of the incident (shown below) demonstrate the Agents were far beyond the distance at which any thrown rock could pose such a risk.
According to the Complaint, the Agents’ use of excessive, lethal force against Arevalo was part of an unconstitutional pattern and practice of agents to shoot to kill Mexican nationals who allegedly threw rocks at them, regardless of whether the alleged rock-throwing posed an imminent risk of death or serious injury to the agents or anyone else, and regardless of whether other, non-lethal means were available to avert any such risk. Plaintiffs further allege that this so-called “Rocking Policy” had the imprimatur of the highest ranking government officials. Despite actual knowledge of the patently unlawful Rocking Policy, the Agents’ Supervisors failed and refused to timely conform agents’ use of force to the requirements of law. When the Agents opened fire on a beach full of picnickers on September 3, 2012, they did so knowing that their Supervisors had for years known of, acquiesced in, and condoned other similar killings.
Cases like this have caused the government to commission a report by the well-respected Police Executive Research Forum (“PERF”), a report that ultimately advised against agents taking such aggressive tactics against alleged rock throwers when several non-lethal alternatives are still available. At first rejecting PERF’s recommendations, the Customs and Border Protection agency later revised its use of force policy to require, for the first time, that border patrol agents who allegedly encounter rock-throwing to respond with less than lethal force whenever they can do so safely. Unfortunately for Mr. Arevalo and his family, that change in policy came years too late.
Before the District Court
On August 27, 2014, Mr. Arevalo’s widow and children filed suit in the U.S. District Court for the Southern District of Texas against the Border Patrol agents, their supervisors, and the United States government. The Plaintiffs seek relief from the agents and their supervisors, claiming violations of Mr. Arevalo’s rights under the Fourth and Fifth Amendments to the U.S. Constitution. The Plaintiffs’ claim against the United States is brought pursuant to international law for its deprivation of Mr. Arevalo’s specific, universal, and obligatory human rights.