The Justice Department announced today that following a
comprehensive investigation it will not pursue federal criminal civil rights or
other federal charges against the federal agents involved in the in-custody
altercation that resulted in the death of Mexican national Anastasio
Hernandez-Rojas.
Officials from the Department of Justice’s Civil Rights
Division, the FBI and the Department of Homeland Security’s Office of the
Inspector General (DHS-OIG) met today with Hernandez-Rojas’ family members and
their representatives to inform them of this determination. The department’s decision is based on the
facts developed during an independent and comprehensive investigation into this
matter.
The department devoted significant time and resources to
investigating the events surrounding Hernandez-Rojas’ death on May 31, 2010,
three days after he was taken into custody at the San Ysidro Port of Entry in
San Diego, California. A team of experienced
federal prosecutors reviewed hundreds of pages of evidence generated by San
Diego Police Department Homicide investigators.
Federal agents and the Civil Rights Division then initiated an
independent federal investigation into the incident, which included numerous
witness interviews and visits to the scene.
The evidence generated during the federal investigation included videos
of the incident, federal law enforcement witness accounts, Mexican law
enforcement witness accounts, civilian witness accounts, medical personnel
accounts, medical records, autopsy reports, official use of force training
materials and forensic evidence.
The evidence developed during the investigation indicated
that when Hernandez-Rojas’ handcuffs were removed at the San Ysidro Port of
Entry, Hernandez-Rojas began grappling with the two U.S. Border Patrol (USBP)
agents and then resisted their efforts to restrain him. Two Immigration and Customs Enforcement (ICE)
agents, as well as another USBP agent, joined the struggle and struck
Hernandez-Rojas several times with their asp batons. The agents again secured Hernandez-Rojas in
handcuffs, but he continued to struggle and kick at the agents. The agents called for backup and a transport
vehicle to take Hernandez-Rojas for processing since he was no longer eligible
for voluntary return due to the struggle.
As agents attempted to place Hernandez-Rojas in the transport van to
take him back to the station, he again physically resisted and attempted to
kick the agents. A number of Customs and
Border Protection (CBP) officers responded to the scene, one of whom shocked
Hernandez-Rojas with a taser.
Hernandez-Rojas stopped resisting and the agents restrained his legs. Shortly thereafter, Hernandez-Rojas’
breathing slowed and he became unresponsive.
The CBP officers administered CPR until medical personnel arrived at the
scene. Hernandez-Rojas was pronounced
dead two days later after being removed from life support.
Subsequent autopsies concluded that Hernandez-Rojas died of
an acute myocardial infarction (heart attack) while being restrained. Acute methamphetamine intoxication,
pre-existing heart disease, the level of physical exertion during the struggle,
the electro-shocks from the taser and positional restraint were stated as contributory
factors in Hernandez-Rojas’ death. The
medical examiner stated further that Hernandez-Rojas would not have died had
there not been methamphetamine intoxication.
After a careful and thorough review, a team of experienced
federal prosecutors determined that the evidence was insufficient to pursue
federal criminal civil rights charges.
Under the applicable federal criminal civil rights law, prosecutors must
establish, beyond a reasonable doubt, that an official willfully deprived an
individual of a constitutional right, meaning that the official acted with the
deliberate and specific intent to do something the law forbids. This is the highest standard of intent
imposed by the law. Neither accident,
mistake, fear, negligence nor bad judgment is sufficient to establish a federal
criminal civil rights violation. In the
present matter, the federal government could not prove beyond a reasonable
doubt that the subjects acted willfully, that is with the specific intent to
deprive the victim of a constitutional right.
Specifically, the federal government cannot disprove the agents’ claim
that they used reasonable force in an attempt to subdue and restrain a
combative detainee so that he could be placed inside a transport vehicle.
The federal government is also unable to prove, beyond a
reasonable doubt, that the subjects violated the federal homicide statutes
within the Special Maritime and Territorial Jurisdiction of the United
States. Although positional restraint of
Hernandez-Rojas and electro-shocks from the taser were contributory factors in
his death, there is no evidence that any of the federal agents deployed the
taser or restrained Hernandez-Rojas with malice. Nor is there sufficient evidence to establish
that the federal agents’ conduct violated the federal manslaughter statute,
which does not require malice but requires that the federal agents committed a
lawful act in an unlawful manner, or without due caution and circumspection,
that might produce death. Rather, the
federal agents’ restraint and deployment of the taser against Hernandez-Rojas
when he was non-compliant and physically assaultive was not unlawful and, based
on the evidence gathered relating to the federal agents’ use of force training,
the federal agents’ action were not done without due caution and
circumspection.
While the loss of life is regrettable, the facts of this
matter do not support a federal prosecution.
Accordingly, the investigation into this incident has been closed.
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