Civil rights attorneys are trying to block the federal government from permanently sealing the name of a U.S. Border Patrol agent who opened fire north of the border, killing a Mexican teenager who was on Mexican soil nearly two years ago.
Earlier this summer, the American Civil Liberties Union filed a wrongful death lawsuit against the agent on behalf of the family of 16-year-old Jose Antonio Elena Rodriguez. Jose was fatally shot as he walked along a street in his hometown of Nogales, near the U.S.-Mexico border fence.
U.S. Customs and Border Protection officials agreed to provide the name of the agent and his private attorney to the ACLU and the Rodriguez family but only if they filed an amended complaint with the agent’s name under seal. The ACLU attorneys did that but also filed a motion on Monday in federal court in Tucson to prevent the permanent sealing of the agent’s name.
"This is an extraordinary request by the government and just one more example of how the Border Patrol attempts to shield its unlawful actions from the public. The rule of law demands transparency — that’s all we’re asking for,” said Lee Gelernt, deputy director of the ACLU’s national Immigrants’ Rights Project and lead ACLU attorney on the case.
In a prepared statement, Customs and Border Protection spokesman Mike Friel said the agency does not disclose the names of federal agents or officers who are the subject of investigations to the general public “due to their unique position as federal law enforcement officers who often confront the most dangerous elements of society and may be targeted by those elements as a result of association with the allegation."
Gelernt said the agency's position was overly broad and that during conversations with federal officials they couldn’t provide concrete information that the officer’s life was under threat.
“This is the biggest law enforcement agency in the country, one that said it will now be more transparent after years of hiding abuses…. The name of an officer cannot remain under seal and police departments throughout the country know that,” he said.
Gelernt pointed to the situation in Ferguson, Mo., where Michael Brown, an 18-year-old unarmed black man, was shot multiple times and killed Aug. 9 during a confrontation with a white police officer.
“Even in Ferguson, the name is public and there's not even a suit yet,” he said.
In that case, Ferguson and other local authorities initially refused to identify the officer involved in the shooting. Nearly a week later and under pressure from the public and the media, they identified the officer as Darren Wilson.
Jose’s mother, Araceli Rodriguez, filed a wrongful death lawsuit in late July, seeking unspecified monetary and punitive damages, alleging that the agent violated the law.
Customs and Border Protection officials have declined to comment on the case, saying the agency does not discuss pending litigation.
Jose died on Oct. 10, 2012, when one Border Patrol agent fired at the border fence into Nogales. An autopsy showed he was hit eight times in the back.
The Border Patrol has said the agent had been hit by rocks when he responded to reports of drug smugglers climbing the fence.
Rodriguez’s lawsuit says Jose was not throwing rocks and that he had just finished a basketball game with friends and was killed as he walked along Calle Internacional, a major boulevard.
U.S. officials launched an investigation but have yet to release the results, including whether the shooting was within agency policy. It’s unclear whether the agent was cleared, disciplined or fired. Nor have the results of a Mexican investigation been released.
The Border Patrol has been criticized for a “lack of diligence” in investigating agents who fire their weapons, a report by independent law enforcement experts found.
The review, commissioned by Customs and Border Protection, found that agents are rarely prosecuted, with investigations typically concluding that the agent acted in self-defense. The agency unsuccessfully sought to keep the report secret.
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