This is how to stop Border Patrol killings with impunity, ex-officials say

“Sergio Hernández should not have been killed. He was an unarmed teen who did not pose an imminent threat to the U.S. Border Patrol agent, Respondent Jesus Mesa Jr., who shot him.”

The opening statement in a U.S. Supreme Court brief filed today by two retired top internal affairs officials with U.S. Customs and Border Protection highlights concerns that the Border Patrol acts more like a paramilitary force than a law enforcement agency.

The former officials who filed the amicus briefs in Hernández v. Mesa – James F. Tomsheck, who until 2014 served as assistant commissioner, and his deputy, James Wong – have become outspoken critics of the Border Patrol. For them, the deaths of Hernández and several others after violent yet preventable encounters with Border Patrol agents happened because of the agency’s increased militarization.

The case stems from the June 2010 shooting of 15-year-old Sergio Hernández Guereca by Mesa, who fired his pistol into Mexico at people throwing rocks as he patrolled a section of the Rio Grande that splits El Paso, Texas, from Juarez, Mexico. Both Tomsheck and Wong held senior positions with Customs and Border Protection, the Border Patrol’s parent agency, when the shooting occurred. The boy’s family sued the government, but a federal judge dismissed the case, finding it could not continue under the U.S. Constitution because their son was shot in Mexico. The family appealed.

In on-camera interviews in 2015 with Reveal, Tomsheck, Wong and former top FBI official Ronald T. Hosko spoke about their concerns with the Border Patrol’s use of force. Tomsheck spoke publicly for the first time about the Hernandez shooting and how it was handled by the Border Patrol.

Tomsheck and Wong have described a culture of corruption and cover-ups within the Border Patrol that predictably perpetuates excessive use of force. This was fueled by the agency’s militarization, inadequate screening and training of new hires, and failings in oversight, they say. As a result, Border Patrol agents have been quick to pull the trigger on rock throwers and others involved in what have become unnecessarily lethal encounters along the U.S.-Mexico border.

“Because of conditions within the Border Patrol, similar incidents likely will continue to occur if agents cannot be held accountable in civil suits,” the officials say in the brief.

The Supreme Court will weigh whether the family of a person killed standing in Mexico by a federal agent on U.S. soil can sue the government. The Supreme Court decided in October to examine the matter.

A similar cross-border wrongful death lawsuit in which another Mexican teenage boy, Jose Elena Rodriguez, was shot in 2012 by a Border Patrol agent remains with the 9th U.S. Circuit Court of Appeals, which ruled in October to await the Supreme Court’s decision.

Tomsheck and Wong’s statements come as President-elect Donald Trump has promised to take a more aggressive stance on border security and immigration enforcement. His selection of Gen. John F. Kelly, a retired commander of the U.S. Southern Command, to lead the Department of Homeland Security has fueled worries that the militarization will intensify under Trump’s administration.

Customs and Border Protection, which falls under the Homeland Security Department, is the largest civilian law enforcement force in the country, with 44,000 sworn agents and officers, about 21,000 of whom are in the Border Patrol.

The agency has been plagued by misconduct, as more than 170 employees have been arrested on corruption-related charges over the past 12 years. Turf battles between oversight and watchdog agencies and the agents’ own “culture of protectionism” has stymied efforts to weed out corruption and misconduct.

Since 2010, roughly four dozen people have died in confrontations with Customs and Border Protection, mostly involving the Border Patrol. A handful of fatal shootings have been across the U.S.-Mexico border, and only one has been prosecuted to date. The U.S. Department of Justice is prosecuting Border Patrol Agent Lonnie Swartz, who shot through the border fence that separates Nogales, Arizona, from Nogales, Sonora, killing 16-year-old Elena Rodriguez. Discipline also has been lacking.

Hosko, a former head of the FBI’s criminal investigative division, said in a 2015 interview with Reveal that because the Border Patrol operates in remote areas, its agents’ use of force may not get the same level of scrutiny as police shootings that occur in places with more people.

“I think if a small police department or a mid-sized or a large police department had as many questionable use of force cases as (Customs and Border Protection) has that DOJ (the Department of Justice) would be all over that” with patterns and practices investigations, Hosko said.

Senior Border Patrol officials and union officials say that thrown rocks can cause serious injury or even death and that agents’ use of deadly force is justified to protect themselves or others.

A 2013 report by the Police Executive Research Forum, a Washington, D.C.-based law enforcement consultant and research group, recommended that agents not shoot at people throwing rocks and other objects that can’t cause serious injury or death. Customs and Border Protection resisted the release of the consultant’s recommendations.

Tomsheck was ousted from his position in June 2014 and replaced by Mark Morgan, an FBI agent. Tomsheck retired in early 2015. In July, Morgan returned to the agency as chief of the Border Patrol. Wong retired in late 2011.

Andrew Becker can be reached at abecker@revealnews.org. Follow him on Twitter: @ABeckerCIR.