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CBP Requests Federal Court Keep Identity of Border Patrol Agent Who Killed Teen Secret

Border Patrol truck at US-Mexico border fence (Creative Commons-Licensed Photo by J.M. Stuart)

United States Customs and Border Protection (CBP) has asked a federal court in Arizona to keep the name of a Border Patrol agent, who killed a 16-year-old, secret.

Mexican Jose Antonio Elena Rodriguez was on the Mexican side of the US-Mexico “border fence” on October 10, 2012, when a border patrol agent shot him with a .40-caliber round in the back of his head.

Witnesses, according to McClatchy Newspapers, say Rodriguez then “slumped mortally wounded to a sidewalk.” Two agents, who were “perched on the US side about 20 feet above the street and shielded by the fence’s closely spaced iron bars, then proceeded to fire more bullets at him. Ten bullets hit Rodriguez and his blood splattered all over a wall behind him.

The American Civil Liberties Union (ACLU) has filed a civil lawsuit against the unidentified border patrol agent for killing Rodriguez. Brought on behalf of Rodriguez’s mother, Araceli Rodriguez, the lawsuit alleges that the agent violated Rodriguez’s Fourth and Fifth Amendment rights.

“In fatally shooting [Rodriguez], defendant acted intentionally, maliciously and used unreasonable and excessive force, with the purpose to cause harm to [Rodriguez] without legal justification,” the ACLU’s complaint argues.

The government has refused “repeated requests” by counsel to provide the name of the Border Patrol agent responsible. The ACLU requested that the court permit Rodriguez’s mother to “take third-party depositions of government officials with knowledge of the identity of the responsible Border Patrol agent.” The court granted this motion on August 7.

CBP subsequently agreed to provide the name and the private attorney representing the agent, according to the ACLU. However, the government insisted that the “amended complaint” be filed under seal “pending a ruling by this court on whether the name could remain under seal.”

Faced with the “statute of limitations,” the government’s demand was accepted. But a motion urges the court to only temporarily seal the complaint and require the government “show cause” for “why the name of the agent should remain under seal.”

The ACLU maintains that the request to keep the agent’s name “hidden from the public is extraordinary.”

“The public interest in knowing the identity of a federal agent sued for the use of deadly force during his official duties is paramount,” the ACLU further declares.

In a prior case involving a border shooting, Lorenzo v. United States, the court recognized in 2010 that the incident raised issues of “legitimate public concern.” The officer was alleged “to have acted in the course and scope of his duties as a law enforcement officer at the time of the shooting. His name, the location of the event and the event surrounding the altercation are not private matters.”

The ACLU also claims the government has provided no information “that would suggest a specific safety issue or threat” to the agent “that could overcome the presumption against anonymity.” Granting the agent anonymity in the case “would be contrary to the public’s right of access to judicial proceedings and unwarranted in this case.”

Rodriguez lived in Nogales, Sonora, Mexico, which is approximately four blocks from where the agent shot him. Unfortunately, this area and others in Mexico has suffered from a pattern of abuse by US Border Patrol agents.

The US claims to control areas on the Mexican side, and, as detailed in the complaint, agents “use guns, non-lethal devices and other weapons, as well as military equipment and surveillance devices to target persons” on this side of the border.

The Arizona Republic found 487 “use of force” incidents occurred between 2010 and 2012 just in the Border Patrol’s “Tucson sector.” At least 45 deaths have been caused by Border Patrol agents since 2014. Yet, there are virtually no consequences for agents who engage in deadly force and commit acts of abuse.

According to Jim Tomsheck, the former head of internal affairs for CBP, he reviewed “several incidents where the persons appeared to be fleeing and were shot in the back or the side at some distance from the Border Patrol agent when the shots were fired.”

He asserted in a CBS News interview in August that “his bosses ignored his concerns ” about multiple shootings. He also “did not have authority to punish agents” and was “reassigned in June.”

“There were certainly many cases where Border Patrol agents or certainly CBP officers engaged in excessive use of force or abuse of migrants at the border that should have resulted in discipline where it did not,” Tomsheck added.

The agent who shot Rodriguez was not disciplined for killing him. He is still working as a Border Patrol agent.

Even more stunning, the new commissioner of Customs and Border Protection, Gil Kerlikowske, does not think agents are engaged in too many shootings at the border. He also believes the problem with investigations not holding agents accountable stems from “antiquated” computer systems” that are unable to track “complaint numbers because the systems were put together from a variety of agencies.”

This needlessly complicates the issue, which if you are not the head of an agency committed to covering up for those who kill Mexicans is, to put it bluntly, agents killing innocent people who posed no threat whatsoever.

CBP insists on secrecy in order to maintain a culture of impunity, where its agents are entirely immune from any responsibility for their use of deadly force in the field.

After the Police Executive Research Forum (PERF) completed a review of acts of violence, which had been committed by Border Patrol agents, because Congress had ordered an examination of “use of force policies and practices,” the government fought the public release of this review. Its contents became known only after the Los Angeles Times obtained a leaked copy and reported on it.

The review concluded, “It is suspected that in many vehicle shooting cases, the subject driver was attempting to flee from the agents who intentionally put themselves into the exit path of the vehicle, thereby exposing themselves to additional risk and creating justification for the use of deadly force.”

It recommended that Border Patrol agents not try to be action movie heroes and “get out of the way” instead of “intentionally assuming a position in the path of such vehicles,” which puts them at risk.

Whether agents kill or recklessly fire their weapons, the government does not think the public should know the identities of people involved. And the government definitely does not think mothers of gunned down Mexican teens should be able to use US courts to challenge agents’ conduct.

CommunityFDL Main Blog

CBP Requests Federal Court Keep Identity of Border Patrol Agent Who Killed Teen Secret

Border Patrol truck at US-Mexico border fence

United States Customs and Border Protection (CBP) has asked a federal court in Arizona to keep the name of a Border Patrol agent, who killed a 16-year-old, secret.

Mexican Jose Antonio Elena Rodriguez was on the Mexican side of the US-Mexico “border fence” on October 10, 2012, when a border patrol agent shot him with a .40-caliber round in the back of his head.

Witnesses, according to McClatchy Newspapers, say Rodriguez then “slumped mortally wounded to a sidewalk.” Two agents, who were “perched on the US side about 20 feet above the street and shielded by the fence’s closely spaced iron bars, then proceeded to fire more bullets at him. Ten bullets hit Rodriguez and his blood splattered all over a wall behind him.

The American Civil Liberties Union (ACLU) has filed a civil lawsuit against the unidentified border patrol agent for killing Rodriguez. Brought on behalf of Rodriguez’s mother, Araceli Rodriguez, the lawsuit alleges that the agent violated Rodriguez’s Fourth and Fifth Amendment rights.

“In fatally shooting [Rodriguez], defendant acted intentionally, maliciously and used unreasonable and excessive force, with the purpose to cause harm to [Rodriguez] without legal justification,” the ACLU’s complaint argues.

The government has refused “repeated requests” by counsel to provide the name of the Border Patrol agent responsible. The ACLU requested that the court permit Rodriguez’s mother to “take third-party depositions of government officials with knowledge of the identity of the responsible Border Patrol agent.” The court granted this motion on August 7.

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Kevin Gosztola

Kevin Gosztola

Kevin Gosztola is managing editor of Shadowproof Press. He also produces and co-hosts the weekly podcast, "Unauthorized Disclosure."

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