FOIA Notes / Use of Force

FOIA NOTES: CBP Stonewalling on Border Shootings

CBP registered the shooting of Hernandez as an "Assault on Federal Officer."

CBP registered the shooting of Hernandez as an “Assault on Federal Officer.”

Recent FOIA requests for records on fatal borders shootings have been met by stonewalling from the U.S. Customs and Border Protection (CBP). The FOIA requests are part of an organized effort to pierce the veil of secrecy around the disturbing increase in the number of people killed by U.S. agents patrolling the U.S.-Mexico border in recent years. Civil rights groups and media accounts report at least 19 people killed as a result of alleged excessive use of force by Border Patrol officials since January 2010. Eight of the victims were alleged to be throwing rocks, eliciting live fire from Border Patrol agents in response (see ACLU backgrounder, updated September 17, 2013). The incidents have led to public outrage and strained tensions between the U.S. and Mexican governments. The deaths have also raised concerns among members of U.S. Congress regarding use of force training and accountability measures in place within the Department of Homeland Security (DHS) and CBP, leading to an internal review and recent release of a redacted report by the DHS Office of the Inspector General (OIG) (see OIG report, released September 12, 2013).

One of our FOIA cases pertains to the June 7, 2010 shooting of Sergio Adrián Hernández Guereca, a 15-year-old boy killed by a U.S. Border Patrol agent near the U.S. side of the border in El Paso, after a group of teens allegedly threw rocks at the agent. Video footage surfaced three days after of the shooting, showing the officer firing two shots from the U.S. side of the border into Mexico, where Sergio Adrian fell on impact (see AP report). The shooting led to an FBI investigation into the affair, but the investigations were dropped by the Justice Department in April 2012, reportedly due to lack of evidence (Huffington Post). The family has pursued a civil suit against the Border Patrol agent responsible for the shooting, identified as Jesus Mesa Jr., and other officials. The case was initially dismissed in U.S. federal court, but a new lawsuit was filed and is now underway in U.S. appellate court. The family’s lawyer says the Justice Department admitted that Hernández had not thrown any rocks himself. The attorney has based the new suit based on the claim that the shots fired by the Border Patrol were unjustified (EFE via La Prensa).

The documents released by CBP in response to our FOIA request include a ten-page “Reportable Use of Force Incident” report describing the actions taken by the three border patrol agents involved in the shooting. The incident is categorized not a homicide or even an event involving excessive use of force, but rather as an “Assault on Federal Officer: Shots fired by Agent.”

According to the report, one of the agents fired three rounds from a semi-automatic .40 caliber pistol, striking Sergio Adrian Hernandez from 20-25 yards away under the left eye. Hernández died on the scene. The report states that the subject was unarmed but used “rocks” during the incident. According to the report, the patrol agent who fired his weapon, first used an ECD (taser) device, but subsequently went for his gun. It states, “Agent [name redacted] was simultaneously being assaulted by subjects throwing rocks as he affected the arrest. Agent [name redacted] fired three rounds and one subject expired.”

The document does not fully clarify the incident, and leaves many questions unanswered relating to the shooting of Hernández. CBP continues to hold hundreds of pages of secret records relating to the incident. The agency responded to our initial request for information by denying in full the disclosure of any records, and even refusing to identify the number of documents responsive to the request. The agency argued that all documents were being withheld in their entirety pursuant to exemption (b)(7)(A) of the FOIA, which “protects from disclosure records or information compiled for law enforcement purposes, the release of which could reasonably be expected to interfere with enforcement proceedings.” (see 6 December 2012 CPB letter).  Archive researcher Emily Willard appealed the decision by arguing that the CBP could not claim the (b)(7)(A) exemption because there was no official pending law enforcement proceedings underway relating to the case, since the DOJ had decided not to pursue its investigations. The CPB responded to the appeal, with the determination that a total of 494 pages were in fact responsive to the request (see 26 June 2013 CPB letter). However, they found that only 180 out of the 494 pages were releasable, 16 of which were released with redactions, made pursuant to the personal privacy protection exemption (b)(6) and (b)(7)(C) and (b)(7)(E) of the FOIA. 164 pages of the documents released contain media reports compiled by CBP’s “Sector Evidence Team.”

It is impossible to determine exactly what information CBP is hiding from the public, but it undoubtedly figures into ongoing public concern and congressional reviews of the increase in the use of lethal force by U.S. Border Patrol agents. The most recent incident, the killing of José Antonio Elena Rodríguez, a 16-year-old shot by Border Patrol agents in October 2012 in Nogales, Sonora, has intensified demands for greater accountability and oversight of CBP border practices. As in the case of Sergio Adrian, the CBP has maintained that Jose Antonio was throwing rocks, a claim undermined by other evidence in the case (AZ, The Republic).

These incidents have led to heightened calls to reform the procedures and guidelines in place for U.S. border agents. The OIG report found that CBP’s own Use of Force Policy Division (UFPD) found during an internal review that “CBP basic academies do not train new agents and officers on all less-lethal options that will be available to them,” and identified “high-risk situations, such as vehicular and rock assaults, that are not sufficiently trained at the basic academies” (OIG report, page 18).

Transparency is a critical tool to help ensure full accountability for the agents involved in the shootings. The OIG report, while an important step forward, is itself is redacted in places, demonstrating that information of strong public interest is still being kept from public scrutiny. The public has a right to know the full record on the troubling increase in border shootings. Stay tuned for updates from Migration Declassified on the latest declassified documents as our FOIA cases move forward.

2 thoughts on “FOIA NOTES: CBP Stonewalling on Border Shootings

  1. Pingback: CBP Stonewalling on Border Shootings | UNREDACTED

  2. Pingback: FOIA Notes: Call for Border Patrol to Use Restraint against Rock Throwers Censored from DHS Report | Migration Declassified

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