Agents use stun gun on handcuffed man
Part 2 of the Series Force at the Border
By Daniel González, Bob Ortega and Rob O’Dell
In May of 2010, eyewitnesses shot cellphone videos that show a 42-year-old undocumented immigrant handcuffed, face-down on the ground at the San Ysidro, Calif., port of entry and surrounded by U.S. border agents.
One agent rips the man’s pants off and another shocks him with repeated blasts from a stun gun while the victim, Anastacio Hernandez Rojas, begs for someone to help him. Hernandez Rojas wails in agony as eyewitnesses yell at the agents, “Hey! He’s not resisting, guys. Why do you guys keep pressing on him?”
The videos are disturbingly similar to the video of Rodney King being kicked and beaten with batons by Los Angeles police officers in 1991, which remains seared in the public’s memory more than 20 years after it was shot by an eyewitness.
King survived. Hernandez Rojas died of his injuries three days later in the hospital. The San Diego medical examiner ruled his death a homicide.
Both cases raised much larger questions. Yet the reaction has been starkly different.
The King video ignited a fury of media coverage, provoking public outrage that led to a police investigation, felony charges against four of the officers, massive riots, and eventually civil-rights complaints and two federal convictions.
In contrast, there was no comparable national media storm over the Hernandez Rojas beating, even after the PBS program “Need to Know” last year uncovered a new, clearer video of Hernandez Rojas face-down on the ground, handcuffed. He is surrounded by more than a dozen CBP officers and Border Patrol agents.
The PBS video was big news in Southern California, in the U.S. Spanish-language media and also in Mexico, but “it certainly didn’t catch fire. It didn’t go viral,” said John Carlos Frey, a Los Angeles-based investigative journalist and documentary filmmaker who helped uncover the video broadcast on PBS. “It was very sparsely covered.”
As a result, the Hernandez Rojas case has prompted far less public outrage and criticism than the Rodney King case. More than three years later, none of the officers involved has been charged with any crimes, and the Department of Homeland Security has refused to say whether any have been disciplined.
DHS also declined to comment on the case.
The footage did, however, prompt 16 members of Congress to demand an investigation, raising concerns that the Hernandez Rojas video was “emblematic” of broader training and accountability problems within the Department of Homeland Security related to use of force.
Several immigrant rights groups also are fighting for more answers.
“No, I don’t think this case has gotten the attention it has deserved when the abuse was so clear,” said Arturo Carmona, executive director of Presente.org, a Latino advocacy group based in Los Angeles that created an online petition to draw more awareness to the case.
A major reason the King case provoked such a public outcry was that he was an African-American and a U.S. citizen, and the incident touched a nerve about race and injustice in America, some analysts and immigrant-rights advocates say. King drowned accidentally last year.
Hernandez Rojas was an immigrant from Mexico who had been been living in the U.S. illegally.
“They are ‘illegal aliens’ and therefore any use of force is justified,” said Christian Ramirez, director of the Southern Border Communities Coalition, an advocacy group. “‘They had it coming,’ is sort of the thinking among many people.”
There is also a common perception of “the Border Patrol being on the front lines in the war against terrorism, so their actions are never questioned,” Ramirez said.
The problem, however, is that those perceptions have helped create a culture of impunity, in which border agents operate under less transparency and accountability than local law-enforcement officers, said David Shirk, a political science professor and director of the Justice in Mexico Project at the University of San Diego.
As a result, when federal border agents do use force, there is less likely to be the same level of scrutiny to determine whether they acted improperly, said Shirk, an expert on border policy and security.
Border Patrol agents and Customs and Border Protection officers resort to deadly force infrequently. But an investigation by The Arizona Republic of nearly 1,600 use-of-force cases found that in 42 cases in which agents or officers have killed people since 2005, none faced criminal prosecution by the Justice Department or are publicly known to have been disciplined by CBP, even though in at least nine cases, family members filed wrongful-death lawsuits.
By contrast, Shirk noted that in the King case, “there was a mechanism in place to ensure that these officers were held accountable. … A police officer is much more accountable to the law than a DHS agent.”
Shirk is concerned that the circumstances that led to Hernandez Rojas’s death may never be fully investigated because of the lack of scrutiny and accountability under which DHS officers on the border operate.
“Agents are protected essentially by their badges, and that’s a real problem,” he said. “The Department of Homeland Security has a very important public purpose, but it also should have a high level of public responsibility and accountability, and that’s not presently the case.”
Not everyone agrees.
Peter Nuñez, the former U.S. Attorney in San Diego, said he is confident the case is being properly investigated.
The video, he pointed out, has been shown “incessantly” in San Diego. A wrongful-death lawsuit filed by the family of Hernandez Rojas is pending, a congressional inquiry is under way, and an internal investigation has been conducted. An FBI investigation also is pending.
It’s also a possibility, Nuñez said, that “everybody that’s looked at this has come to the conclusion that (nobody) did anything wrong.”
Hernandez Rojas was an undocumented immigrant from Mexico, but he had lived in the U.S. for more than 20 years, according to a wrongful-death lawsuit filed against the CBP officers and Border Patrol agents by his family. He worked as a pool plasterer.
He had five children, all U.S. citizens, ranging in age from 7 to 23.
“They miss their father very much,” his wife, Maria Puga, told The Republic. “It’s been very difficult. It’s been very hard, psychologically, for them to understand. They still say, ‘I want my dad, I want my papito.’”
The incident began after Hernandez Rojas was caught by the Border Patrol trying to re-enter the U.S. illegally to rejoin his wife after being deported several times previously.
He was carrying a jug of water as he was taken to a Border Patrol station. He was told by a Border Patrol agent to put the water in the trash.
Instead of throwing out the jug, Hernandez Rojas poured the water into a trash can, according to the lawsuit.
The agent then slapped the jug out of his hands, pushed Hernandez Rojas against a wall, and kicked his legs apart, injuring one of his ankles, according to the complaint.
When Hernandez Rojas asked why he was being mistreated, Border Patrol agents decided to send him back to Mexico immediately, rather than give him time to make a formal complaint, the lawsuit said.
Hernandez Rojas was taken to the San Ysidro port of entry to be sent back to Mexico. That is where the situation turned.
In the incident report they filed, CBP agents said Hernandez Rojas was violent and aggressive, kicking and screaming at agents, continuing to be combative even as an officer shocked him with a stun gun repeatedly until they noticed he was “unresponsive.”
An autopsy showed Hernandez Rojas died of brain damage and a heart attack as the result of being beaten and shot shocked multiple times with a stun gun. The autopsy also found traces of methamphetamine in his system, which the autopsy noted may also have contributed to his death.
The incident happened at about 8 p.m. on a Friday under a pedestrian bridge crowded with people crossing back and forth between San Ysidro, California and Tijuana, Mexico, the busiest border crossing in the world.
Many of the witnesses stopped to shoot videos on their cellphones. One man on the Mexican side shot a cellphone video, too dark to see, but with audio in which Hernandez can be heard begging for help and crying for agents to stop.
Then a year and a half later, another witness, Ashley Young, agreed to share a cellphone video she shot at the time with attorneys for Hernandez Rojas’s family and to Frey, the documentary filmmaker.
Young said in an e-mail that she didn’t share the video earlier because she was reluctant to get involved for personal reasons and was scared there might be a negative public reaction, though that didn’t happen.
She said she was interviewed by the FBI days after the video aired, and then testified in front of a federal grand jury.
Young’s video shows Hernandez Rojas lying face-down on the ground, hands cuffed behind his back, surrounded by more than a dozen CBP officers. On the video the electric sparks from the stun gun can be seen flashing as Hernandez Rojas is shocked repeatedly.
In response to the PBS documentary that included footage from Young’s video, 16 members of Congress, including Rep. Raul Grijalva, D-Ariz., wrote a letter to Janet Napolitano, then secretary of the Department of Homeland Security, demanding a full investigation.
That prompted the Homeland Security’s Office of Inspector General to conduct a general review of allegations of excessive use of force; but the report, issued in September, did not specifically examine the Hernandez Rojas case.
Grijalva said he is concerned that the Hernandez Rojas case has fallen by the wayside,
“I think there’s been, unfortunately, an acceptance that regardless” of what happened to Hernandez Rojas, his death “was somehow justified,” Grijalva said.
He said that acceptance has been fueled by political rhetoric about the need to secure the border, which makes it difficult to raise questions about possible civil-rights abuses by federal border agents.
“The acceptance goes along with the whole drum-beating and spinning and talking we’ve had about border security and ‘We need to seal the border.’ It all kind of folds in,” Grijalva said. “So, there is a horrible consequence: those deaths (such as Hernandez Rojas and others killed by Border Patrol agents) that are questionable. When you ask a question, you get into a position — ‘Oh, you are against Homeland Security? You are against the Border Patrol? You are against securing the border? You are against fighting terrorism?’ ”
The videos became huge news in Mexico, said Victor Clark Alfaro, director of the Binational Center for Human Rights in Tijuana. He helped organize a protest in Tijuana against the death.
“It was front-page news every day for several days,” Clark Alfaro said. The video and audio also were aired repeatedly on TV and radio in Mexico.
As a result of the news coverage, people in Mexico were outraged, Clark Alfaro said.
“They were angry and sad and blaming the American authorities. But in the end, there was this feeling that there would be no justice on the American side.”
Former Mexican President Felipe Calderón also demanded the United States conduct an investigation as well as punishment for those responsible.
In contrast, Clark Alfaro said, he is surprised by how many Americans remain unaware or indifferent about the death of Hernandez Rojas.
“Anastacio was Mexican. It happened on the border only a few meters from Tijuana,” he said. “If instead of Anastacio, we had a blond U.S. citizen, probably it would have been different. It would have been a scandal.”
Frey, the filmmaker, puts it another way.
“What if a Mexican government official shot and killed a U.S. citizen?” Frey said. “I think we’d have tanks down on the border.”
Republic photographer Nick Oza contributed to this article.
Part 1: Wall of silence | NEXT WEEK Part 3: More agents assisting local police
Editor’s note: This story was previously published on azcentral.com