Border Patrol Chief Michael J. Fisher and two agents, Dorian Diaz and Chad Nelson, are being sued in San Diego federal court over the shooting death of a Mexican illegal immigrant accused of throwing rocks at Border Patrol agents:
The chief’s presence in the lawsuit opens the door for a larger examination of the Border Patrol’s use-of-force policies surrounding such “rocking” incidents, an issue that has been hotly debated among law enforcement and civil rights advocates on both sides of the border.
Without the chief, the case would only focus on the 2011 shooting that left 40-year-old Jesus Yañez Reyes dead.
Steve Shadowen, an attorney for Yañez’s family, said the policy has resulted in the “needless deaths” of more than a dozen people along the border.
“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,” he said in a statement.
The Department of Justice declined to comment on the ruling Wednesday.
The incident in question took place on June 21 between Yañez and Agents Dorian Diaz and Chad Nelson:
Yañez and another man, Jose Ibarra-Murietta, had just crossed into the U.S. at Tijuana through a hole in the primary fence and were coming out in a culvert along the secondary fence, according to the complaint.
There was a chase, and Yañez was able to escape back through the hole in the fence. Nelson caught up with Ibarra-Murietta and the two struggled on the ground.
Meanwhile, Yañez ran parallel along the other side of the fence and climbed a tree to keep an eye on his friend during the struggle. (The tree was technically on the U.S. side of the international border, even though it was on the Mexico side of the fence.)
What happened next depends on who you ask.
Nelson told investigators that Yañez threw two rocks at him from the tree during the fight but neither hit him, according to the complaint. Yañez then threw a board studded with nails, which glanced off his hat, he said.
Ibarra-Murietta told investigators that he didn’t see Yañez throw anything, but heard him warn the agents that he would record the scuffle on his cellphone.
Diaz told authorities he ran up at some point during the fight and tried to help his partner. He said he yelled at Yañez to get down, and soon after saw Yañez’s arm go back as if in a throwing motion, according to the complaint. Diaz said he didn’t see anything in Yañez’s hand, which was in a closed fist, but he feared for his safety and that of his partner and fired.
Nelson told authorities that Diaz turned and fired the shot without uttering a word. Diaz denied it in court papers.
District Judge William Hayes ruled that Fisher could be held liable for Yañez’s death if he was aware of “a pattern or practice of excessive force, failed to take corrective action, and that failure foreseeably caused the plaintiff’s injury.”
