On Feb. 21, the Supreme Court heard arguments in a lawsuit filed by the parents of a Mexican teenager killed by the U.S. Border Patrol while the 15-year-old was on the Mexican side of the border. The justices are weighing whether the parents have the right to sue in United States courts. The lawyers for Sergio Hernández Guereca, the slain teenager, cited information first reported in this Washington Monthly feature about the frequency of such killings.
Until moments before U.S. Border Patrol agents shot him dead on the night of October 10, 2012, Jose Antonio Elena Rodriguez had passed a pleasant evening in his hometown of Nogales, Mexico. He had visited his girlfriend, Luz, and watched television with her family; at around eleven o’clock, he asked Luz if she wanted to join him in his nightly routine of grabbing a hot dog at the convenience store where his brother worked. When she declined, he set out alone on the five-minute walk down International Avenue.
At about the same time, right across the border, a Nogales, Arizona, police officer named Quinardo Garcia responded to a call about “suspicious subjects” running south toward the fourteen-foot wall that divides the two towns. At 11:19 p.m., Border Patrol agents, including K-9 Officer John Zuniga, arrived as backup.
“I passed Officer Garcia’s patrol vehicle and I saw two male subjects climbing the international fence and were trying to get over to the country of Mexico,” Zuniga wrote in his report. “I gave them numerous commands to climb down.… I then decided to deploy my assigned canine, Tesko, and hold him on a leash and secure the area in case the male subjects climbed down. Moments later, additional Border Patrol Agents arrived on the scene.”
The two Mexican men were carrying large backpacks, according to the police report. Garcia and Zuniga stated that they presumed the packs contained illegal narcotics and that the two men were trying to evade capture. “I then heard several rocks start hitting the ground and I looked up and I could see the rocks flying through the air,” Zuniga’s account continues. “As I tried to get cover between a brick wall and small dirt hill, I heard an agent say, ‘Hey your canine’s been hit! Your canine’s been hit!’ ”
Border Patrol agents responded by opening fire across the border into the dark streets of Nogales, Mexico. No agents or officers claimed they’d been struck by rocks—the dog was the only one hit. By the time the agents were done firing, Jose Antonio had received two bullets to the back of the head; at least six more bullets entered the back of his body after he fell to the ground.
He landed facedown on the sidewalk, and died there, outside a small clinic whose sign read “Emergencias Medicas.” He was unarmed, according to the Nogales, Mexico, police report. Border Patrol officials, as of this writing, have declined to comment, citing an ongoing investigation by the FBI, which has also declined to comment.
Fatal shootings by Border Patrol agents were once a rarity. Only a handful were recorded before 2009. Even more rare were incidents of Border Patrol agents shooting Mexicans on their own side of the border. A former Clinton administration official who worked on border security issues in the 1990s says he can’t recall a single cross-border shooting during his tenure. “Agents would go out of their way not to harm anyone and certainly not shoot across the border,” he says. But a joint investigation by the Washington Monthly and the Investigative Fund at the Nation Institute has found that over the past five years U.S. border agents have shot across the border at least ten times, killing a total of six Mexicans on Mexican soil.
There is no doubt that Border Patrol agents face a difficult job. Between 2007 and 2012, twenty agents have died in the line of duty; most of these deaths were the result of accidents, but four were due to border violence. For instance, in 2010 Agent Brian A. Terry was struck down near Rio Rico, Arizona, in the Border Patrol’s Nogales area of operation, by AK-47 fire after he and his team encountered five suspected drug runners. In 2012, Agent Nicholas J. Ivie was shot by friendly fire after being mistaken by other agents for an armed smuggler.
But following a rapid increase in the number of Border Patrol agents between 2006 and 2009, a disturbing pattern of excessive use of force has emerged. When I first began to notice this spate of cross-border shootings, I assumed that at least some victims were drug traffickers or human smugglers trying to elude capture. But background checks revealed that only one had a criminal record. As I began to dig more deeply, it turned out that most of the victims weren’t even migrants, but simply residents of Mexican border towns like Jose Antonio, who either did something that looked suspicious to an agent or were nearby when border agents fired at someone else.
In one case, agents killed a thirty-year-old father of four while he was collecting firewood along the banks of the Rio Grande. In another, a fifteen-year-old was shot while watching a Border Patrol agent apprehend a migrant. In yet another, agents shot a thirty-six-year-old man while he was having a picnic to celebrate his daughters’ birthdays.
As the debate over immigration reform heats up on Capitol Hill, increased border security will likely be the condition of any path to citizenship for the millions of undocumented workers now living in the United States. This makes scrutinizing the professionalism of the Border Patrol all the more urgent. The picture that emerges from this investigation is of an agency operating with thousands of poorly trained rookies and failing to provide the kind of transparency, accountability, and clear rules of engagement that Americans routinely expect of law enforcement agencies.
So far, the Border Patrol’s cross-border shootings have yet to attract much international attention. If they continue, however, it is easy to imagine the U.S. not only being assailed by human rights activists around the world, but also compromising its standing to pressure other countries, such as Israel, to refrain from firing on unarmed citizens across their borders.
In 2006, the Bush administration began rapidly increasing the size of the Border Patrol, ushering in a fanatic recruitment drive. Customs and Border Protection spent millions on slick television ads that ran during Dallas Cowboy football games and print ads that appeared in programs at the NBA All-Star Game and the NCAA playoffs. CBP even sponsored a NASCAR race car for the 2007 season.
In less than three years, the agency hired 8,000 new agents, making Customs and Border Protection one of the largest law enforcement agencies in the United States. Because qualified recruits were so hard to find, the Border Patrol had to lower its standards, deferring background checks and relaxing training regimens. Lie detector tests, which were previously common practice, were often omitted.
Richard Stana, head of Homeland Security and Justice at the Government Accountability Office, testified before Congress in 2007 that the “rapid addition of new agents” would “reduce the overall experience level of agents assigned to the southwest border”—and that Customs and Border Protection would be relying on “less seasoned agents” to supervise the new recruits. He spoke even more frankly in an interview on National Public Radio: “Any time we’ve had a ramp-up like this in the past, the propensity to get a bad apple or two goes way up. And if we don’t have supervisors to identify those bad apples, then they stay on board.”
At the same time, Customs and Border Protection has been secretive about the guidelines its agents are supposed to follow. While a quick Google search will take you to use-of-force protocols for police departments of such major cities as New York and Los Angeles, use-of-force guidelines and training manuals for the more than 21,000 CBP border agents are difficult to come by. The Department of Homeland Security, which oversees Customs and Border Protection, turned down Freedom of Information requests to see their guidelines.
At least this much is known for sure, however: an international agreement with Mexican law enforcement officials states that U.S. Border Patrol agents are barred from firing their weapons into Mexico from the United States under any circumstances. Instead they are supposed to call Mexican authorities whenever there is an incident on the Mexican side of the border.
Specifically, agents are supposed to notify the Center for Investigation and National Security in Mexico City as well as local Mexican police closest to the incident. The protocol specifically states that Mexicans throwing rocks or drawing weapons are “time sensitive” offenses and “requir[e] immediate response from the Mexican government.” Once Mexican officials have been notified, protocol directs U.S. agents to “vector responding agencies to the area of the incident.”
As the case of Jose Antonio and those of other victims of cross-border shootings illustrate, however, such niceties are often left on paper. The Nogales, Mexico, police report indicates that Customs and Border Protection did not notify Mexican authorities when they saw two men trying to climb the border fence back into Mexico, nor did they report that rocks were being thrown at U.S. agents.
On September 3, 2012, Arevalo Pedroza, a longtime construction worker, took his family and some friends out for a picnic to celebrate his daughters’ birthdays. Around four p.m., Pedroza pulled into an outdoor recreational area perched on the southern bank of the Rio Grande called the Patinadero. Families with children were everywhere. Some were swimming, some were eating, others were just relaxing in the hot afternoon sun. Pedroza got busy at the grill.
Meanwhile, 200 feet away, on the other side of the river, a Border Patrol pontoon boat was floating by, just keeping pace with the flow of the river. One agent was driving while the other appeared, according to Mexican eyewitnesses I interviewed, to be scanning the riverbank looking for something or someone. Then, on the American side, a Latino man jumped into the river, seemingly trying to evade the agents in the boat by swimming back toward Mexico. As soon as the agents noticed him, the driver floored the engine and sped over to block his path, circling him and creating large waves that made it difficult for him to swim.
“Help me, help me,” the man in the water shouted in Spanish toward the people in the park, who had begun to gather to watch the unfolding scene. “They are trying to drown me.” Waves washed over his head; on at least two occasions, witnesses say, the boat ran directly over him. The crowd began to shout at the agents in Spanish to leave the swimming man alone. Several witnesses told me they were sure the agents were going to drown him.
Suddenly, a quick series of eight to ten gunshots rang out. At first, few on the shore could tell where the shots were coming from, but three Mexican eyewitnesses told me they could see the agents in the pontoon boat aiming their rifles and opening fire directly at the crowd.
Pedroza’s ten-year-old daughter, Mariana, heard a bullet pass by her head. She described it to me as a sharp sound, like something ripping the air as it flew past. Without thinking she turned and ran away from the river as fast as she could. Others in the crowd also fled for their lives.
The whole incident lasted only seconds. Once the gunshots stopped, the confused crowd looked back across the river. The agents remained still for a long minute, still aiming their weapons at the picnickers. Then a woman began screaming at the agents in English, “That’s against the law! That’s against the law!” It was only then that Pedroza’s wife, Isabel, noticed that her husband was lying flat on the riverbank, faceup, blood pouring from his chest. She spun around desperately, looking for help. “They shot him!” she shouted. “They shot him!” She began to wail hysterically.
Other picnickers started shouting obscenities at the agents, who remained motionless in their boat. By now Isabel was screaming in disbelief, “They killed him! They killed him!” Others joined in the screaming and taunting directed at the agents. Finally the agents silenced their motor, as if trying to hear. As the shouts from the crowd grew louder, the agents hit the accelerator and fled upriver.
Pedroza remained motionless. His eyes were open, Isabel recalls, but he was staring blankly at the sky and did not appear to be conscious. His daughters knelt beside him, trying to comfort him, but he wasn’t responding.
An autopsy conducted by the Nuevo Laredo Police Department later showed that he’d been shot one time through his right lung. The Mexican government issued a statement condemning the incident, saying, “The use of excessive or deadly force by the U.S. Border Patrol in this matter is unacceptable.”
The Border Patrol also issued a statement, saying the shots were fired because the agents had been “subjected to rocks being thrown at them from the Mexican side.” The Border Patrol has said that an FBI investigation of the incident is under way, but none of the witnesses I spoke with, including Pedroza’s wife and his friend Josue Gonzalez, who was by his side when he died, say they have ever been contacted. “Even if rocks were thrown,” Gonzalez told me, “the Border Patrol agents were so far away on the other side of the river, they couldn’t even reach them.”
Of the ten incidents of cross-border shootings that we have uncovered, Border Patrol agents claimed in all but two cases that they had fired their weapons in response to rocks being thrown. Of the six that resulted in fatalities, all but one involved alleged rock throwing.
Amnesty International, Human Rights Watch, the ACLU, the United Nations, and even the U.S. State Department have all denounced lethal force against rock throwers in international areas of conflict. For decades, Western diplomats have likewise condemned the use of lethal force against civilian rock throwers.
Commenting in 2000 on the Israelis’ use of force against Palestinian rock throwers, Mary Robinson, the UN high commissioner for human rights, said, “The superior firepower [by Israel] has been used, I believe, excessively—particularly against youths throwing stones.” Since then, the Israeli Defense Forces adopted an official policy (not consistently implemented) of deploying nonlethal rubber bullets and other crowd-disbursement methods instead of using deadly force to deal with rock throwers.
More recently, when Egyptian soldiers confronted stone-throwing protestors in Cairo’s Tahrir Square with lethal force during the uprising against Hosni Mubarak, then Secretary of State Hillary Clinton and UN Secretary General Ban Ki-moon both condemned the “excessive” use of force. Clinton said she was “deeply concerned” about the violence and urged Mubarak’s security forces “to respect and protect the universal rights of all Egyptians.”
Already, the Border Patrol’s killing of Mexicans on their own soil has complicated and compromised U.S. diplomacy. In June 2011, Border Patrol agents shot another Mexican national, Alfredo YaÃ±ez, claiming that he had been throwing rocks and a nail-studded post from the Mexican side of the border. In response, then Mexican President Felipe Calderon condemned the killing publicly and, in a meeting with Secretary Clinton, demanded that U.S. authorities swiftly investigate the “use of firearms to repel an attack with stones.”
Sixty organizations, including the ACLU, Amnesty International, and Catholic Charities, responded in kind to the YaÃ±ez killing, signing a joint letter to Congress asking for an investigation and calling for an immediate end to the Border Patrol practice of shooting at rock throwers. “Deadly force should always be an action of last resort, and only used if an imminent risk of death is present and no other tools exist to ameliorate a dangerous situation,” reads the letter. “To shoot stone throwers is exceptionally disproportionate and inhumane.”
On July 7, 2012, Juan Pablo Santillan, a thirty-year-old father of four, and his twenty-eight-year-old brother Damian were walking along the southern bank of the Rio Grande collecting firewood for their mother to use in cooking tamales. Across the river they noticed some Border Patrol agents about seventy yards away, high on an embankment, and tried to ignore them. “Border Patrol agents would always use their bullhorn and shout obscenities at us across the river,” Damian recalls. “They would call us beaners and stupid Mexicans. I didn’t like being around them.” Damian’s mother told me she stopped bringing her grandchildren to the river to swim because Border Patrol agents constantly harassed them.
Damian had his back to the agents when he heard what he thought were several gunshots. He instinctively dove to the ground. Seconds later he looked up and saw his brother lying on the ground faceup. Blood was pouring from his chest, and he was not moving.
Damian recalls looking away from Juan Pablo’s bleeding body, across the river, and says he noticed several Border Patrol agents staring his way. One was holding what appeared to be a large rifle with a scope on it, pointed at him. He began to panic. He needed to take cover for his own sake, but his brother might be dying. He dashed to his brother’s side. If he got shot, well, he would die trying to save his brother’s life. But what to do? He was far from a hospital, even from a phone.
In desperation he yelled out at the agents across the river, one agent’s rifle still pointed at him. “My brother is dying!” he cried in Spanish. The agents, he says, did not respond, and instead started to move away from the scene. “Can you please help me!” That was when one agent stopped, according to Damian, and yelled back, also in Spanish, “Let the dog die.”
The official Border Patrol report claims that Juan Pablo Santillan had a gun and aimed it at the agents, and that they fired in self-defense. But Mexican officials, and the five neighbors and family members I spoke with, all told me unequivocally that Juan Pablo did not have a gun that day and had never even owned one. According to an investigation conducted by Mexican police, a gun was not found on his body or at the scene.
A year ago, the border advocacy group No More Deaths published an extensive report on migrants’ treatment by U.S. Border Patrol agents, called “A Culture of Cruelty,” based on 4,130 interviews with 12,895 individuals who had at one point been in Border Patrol custody. The group identified widespread patterns of abuse, including denial of water to migrants who were caught after wandering days in the desert, denial of food, failure to provide medical treatment, verbal abuse, and physical abuse. The report recounts instances of abuse including Border Patrol agents threatening detainees with death, enforcing stress positions and sleep deprivation, turning cell temperatures down to frigid levels, and kicking, beating, and sexually assaulting detainees.
Repeatedly, CBP officials have declined to answer my questions about any of these specific incidents. The agency has instead issued statements like this one, in response to my questions about Santillan’s death:
U.S. Customs and Border Protection (CBP) respects the sovereignty of the country of Mexico and its territorial integrity. Without the express authorization of the Mexican government, CBP personnel are not authorized to physically cross the international boundary when conducting operations. Regarding the use of firearms on the border, CBP law enforcement personnel are trained, required to comply with and be thoroughly familiar with all aspects of the use of force and firearms guidelines.
One former CBP commissioner, W. Ralph Basham, who served from 2006 to 2009, briefly spoke with me some months ago, when I was reporting on a Border Patrol killing on the U.S. side of the border. “I’m certainly sympathetic to those individuals who lose their life as the result of some of these activities,” he said, but added, “These agents have to be able to protect themselves when they feel like their life is being threatened, or the life of other officers.” Still, a 2010 Associated Press investigation found that border agents are assaulted at a dramatically lower rate than police officers (3 percent compared with 11 percent)—and with far less serious weapons, such as rocks or knives rather than firearms.
According to a 2004 CBP use-of-force document I obtained through a source, “Verbal warning to submit to authority shall be given prior to use of deadly force if feasible, and if to do so would not increase the danger to the officer of others.” Yet in Juan Pablo Santillan’s case, and in the nine other cross-border shootings I have uncovered over the past five years, I have found no evidence that verbal warnings were given before agents opened fire into Mexico. In fact, none of the agents involved have even publicly claimed that they issued such warnings.
Details of agent shootings are also protected from public scrutiny by Customs and Border Protection. If an investigation is undertaken internally, it is not made public. If an agent is disciplined, that is not made public either. If CBP refers a case to the Justice Department for a potential criminal investigation, that, too, is kept from the public.
Convictions are on the public record, but they are exceedingly rare. The last one I could find was that of two Border Patrol agents, Ignacio Ramos and Jose Compean, who were tried and convicted for shooting an unarmed, fleeing drug smuggler in the buttocks in 2005. The Bush administration ended up commuting their sentences in the face of public pressure, and both former agents are now free. Since then, no agents have even been disciplined for misuse of their firearms—at least so far as the public can know, since CBP refuses to disclose data on either the number of shootings by officers or the number of related disciplinary actions.
Sergio Adrian Hernandez Guereca was a small-framed fifteen-year-old who loved soccer and wanted to be a police officer when he grew up. He lived in a humble three-room cinderblock house on the outskirts of Juarez, Mexico, with his mother, brother, and two sisters.
On June 6, 2010, Hernandez went with his brother to pick up his paycheck at a furniture factory near a concrete canal that contains the Rio Grande as it passes along the border between Juarez and El Paso, Texas. Meanwhile, as captured on an eyewitness video, Border Patrol Agent Jesus Mesa Jr. was patrolling the U.S. side of the border on bicycle when he spotted a handful of Mexican men trying to cross into the United States.
Mesa quickly dumped his bike and ran for one of them, grabbing him by the hair. The others began throwing rocks at Mesa as they retreated back toward Mexico. Mesa drew his weapon and fired two rounds across the border into Mexico. He missed the fleeing men but hit Hernandez, who was watching the scene from under a concrete bridge about fifty yards away, in Juarez.
According to the Mexican forensic report, Hernandez was shot through the left eye, suffering “a direct laceration to the brain, which … caused cardiac and respiratory arrest.” The medical examiner found “no evidence of a fight or struggle and concluded that the victim was surprised by the assailant eliminating any possibility to defend himself or flee.”
Though Mesa never claimed that he was struck by a rock, he said in a Border Patrol press release that he fired his weapon in self-defense. He also claimed that Hernandez was among the group of men throwing rocks. However, Cristobal Galindo, an attorney retained by the Hernandez family, says that he has seen additional tapes—one from a second eyewitness and one from a CBP surveillance camera—and neither of them show Hernandez throwing rocks. In both videos, the rock throwers are simply running by him.
A lawsuit filed on behalf of the family charges that the Border Patrol agents denied assistance to the bleeding victim. “U.S. Border Patrol Agents arrived on the scene, the shooter picked up his bicycle and then they all left,” says the complaint. “No one took any action to render emergency medical aid to Sergio, leaving him dead or dying beneath the Paso del Norte Bridge in the territory of Mexico.”
The incident caused uproar in Mexico. Felipe Calderon, then Mexico’s president, called on Washington “to investigate fully what happened and punish those responsible.” Mexico’s secretary of state called the use of firearms to respond to a rock attack a “disproportionate use of force.” And Mexican prosecutors issued a warrant for Agent Mesa’s arrest for his involvement in the killing; if Mesa ever steps foot in Mexico, he will likely be arrested and tried for murder.
But the response on the U.S. side of the border was decidedly more subdued. Alan Bersin, then CBP commissioner, promised a transparent and fair investigation but otherwise declined to comment. Two years later, the Justice Department found no wrongdoing by Agent Mesa and said no charges would be brought against him.
“The team of prosecutors and agents concluded that there is insufficient evidence to pursue prosecution,” a Justice Department press release read. “This review took into account evidence indicating that the agent’s actions constituted a reasonable use of force or would constitute an act of self-defense in response to the threat created by a group of smugglers hurling rocks at the agent and his detainee.” (Incidentally, no evidence was ever made public that the men involved in the rock throwing were smugglers.)
When the Hernandez family filed a civil suit against the U.S. government for the wrongful and negligent death of their son, a district court judge threw out the case, arguing that the family had no standing to sue because Hernandez was in Mexico when the incident occurred. According to the decision, “the constitutional constraints on U.S. officers’ excessive use of force and wrongful taking of life did not apply to the border agent’s conduct because, although all of his conduct occurred solely in the United States, the victim was not a U.S. citizen and incurred the injury in Mexico.”
The ACLU filed an amicus brief in support of the appeal. Sean Riordan, the author of the brief, argues that “it would be a dark and dangerous precedent for the courts to hold that federal agents can kill people with impunity merely because they are just across the border and not U.S. citizens.” The case has been appealed to the Fifth Circuit Court of Appeals and is so unprecedented that it may be headed for the U.S. Supreme Court.
Of the nineteen cases we have uncovered over the past two years in which people died at the hands of Border Patrol agents—six on Mexican soil—no agents have yet been prosecuted. If any of the agents involved have been relieved of their duties because of their role in the incidents, that information has not been made available to the public, and our queries to Customs and Border Protection on this issue have been denied.
This article was reported in partnership with The Investigative Fund at The Nation Institute.