Judge sides with Border Patrol in rock thrower’s death

A San Diego federal judge has ruled in favor of the Border Patrol in a lawsuit that alleged the agency had a policy authorizing the use of deadly force against rock throwers — a policy that contributed to the death of a Mexican man at the border fence.

Jesus Yañez Reyes, 40, was fatally shot near the San Ysidro Port of Entry on June 21, 2011. Two agents chased Yañez and another man who had both just crossed into the U.S. through a hole in the fence. One agent struggled with the other man while Yañez retreated through the hole and climbed a tree on the south side of the border fence (which was still technically in the U.S., according to the international line).

The agent on the ground said Yañez threw rocks and a nail-studded board at them. Agent Dorian Diaz then ran up and saw Yañez pull back his arm as if he were ready to throw something, he said. He shot Yañez.

U.S. District Judge William Hayes ruled Thursday that it was not appropriate to hold Diaz or retired Border Patrol Chief Michael Fisher liable under a Bivens claim, a legal remedy used to sue federal officials accused of unlawful search or seizure.

“The court concludes that the unique circumstances surrounding Yañez’s death implicate national security issues related to the security of our nation’s borders,” Hayes said, a “special factor” that would discourage the use of Bivens under prior case law.

The judge also ruled that Diaz is entitled to qualified immunity, meaning there was no other case with similar circumstances that would have put the agent on notice that his actions at the time would violate the law.

Lawyers for Yañez’s wife and their three children said Friday they plan to appeal.

“We feel strongly the law was clearly established on this point,” said Encinitas, Calif., attorney Gerald Singleton, who tried the case with Steve Shadowen of Pennsylvania and others.

An independent audit in 2013 found that some of the Border Patrol’s rock-involved shootings could have been avoided, and Fisher later — at the insistence of the new Department of Homeland Security secretary — amended the policy. Agents are now to consider the size and nature of the projectiles, the totality of the situation and whether there is an imminent threat before using deadly force.

Even with the ruling, the case is still ongoing. Another lawsuit, filed by a woman who mothered two of Yañez’s children, is working its way through San Diego federal court on wrongful death and emotional distress claims.