Federal Judge Allows Lawsuit Against Chief of Border Patrol

Lawyers at Corpus Christi, Texas based Hilliard Munoz & Gonzalez, and at Austin, Texas based Hilliard & Shadowen LLP applaud the decision issued today by the federal district court in San Diego, California regarding the U.S. Border Patrol’s unlawful Rocking Policy.  Under that policy, border patrol agents along the southern border were permitted to treat the alleged throwing of rocks at them as lethal force, regardless of the circumstances, and to shoot to kill in return.  The Obama Administration has tried to reign in the policy since May 2014.

In today’s decision, U.S. District Judge William Q. Hayes ruled in a civil lawsuit brought by the family of Jesus Alfredo Yañez Reyes arising from the fatal shooting of Mr. Yañez along the San Diego border on June 21, 2011. Judge Hayes ruled that one of the border agents who was involved in the shooting, and Michael J. Fisher, the Chief of the U.S. Border Patrol, could not avoid the suit on the ground of qualified immunity.  The other agent involved in the shooting did not seek qualified immunity. Judge Hayes’ ruling sets the stage for discovery into, and a jury trial regarding, this particular fatal shooting and the broader Rocking Policy.  Judge Hayes ruled that other supervisory officials, including former Department of Homeland Security Secretary Janet Napolitano, were too remote from the policy and were entitled to immunity.

Counsel for the family, Steve Shadowen, said, “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.  We believe that the policy resulted in the needless deaths of more than a dozen persons along the border.  This incident was a tragedy for Mr. Yañez’s family, and the Rocking Policy has for too long made a mockery of the United States’ insistence under international human rights standards that law enforcement agents of other nations not respond to rock-throwing with lethal force.  We are confident that this lawsuit will ultimately bring some solace to the Yañez family and will help restore this nation’s reputation.”  Added Bob Hilliard, “We have confidence that the U.S. Courts, and Judge Hayes in particular, will apply the law of excessive force fairly and conscientiously and will deliver justice to this bereft family.”

Judge Hayes’ decision stands in sharp contrast to that of the Fifth Circuit Court of Appeals, which ruled one week ago in a similar case, that if the victim of the fatal shooting happens to be standing just across the border in Mexico, immunity shields any border patrol agent who fatally shoots a Mexican national, even without the slightest justification.  The U.S. Supreme Court is likely to review and reverse that decision.