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Perez v. United States

United States District Court, S.D. California

May 1, 2015

MARIA DEL SOCORRO QUINTERO PEREZ, C.Y., a Minor, and B.Y., a Minor, Plaintiffs,
v.
UNITED STATES OF AMERICA, UNITED STATES DEPARTMENT OF HOMELAND SECURITY, UNITED STATES CUSTOMS AND BORDER PROTECTION OFFICE OF BORDER PATROL, JANET NAPOLITANO, THOMAS S. WINKOWSKI, DAVID AGUILAR, ALAN BERSIN, KEVIN K. McALEENAN, MICHAEL J. FISHER, PAUL A. BEESON, RICHARD BARLOW, RODNEY S. SCOTT, CHAD MICHAEL NELSON, and DORIAN DIAZ, and DOES 1-50, Defendants

For Maria Del Socorro Quintero Perez, Plaintiff: Gerald B. Singleton, LEAD ATTORNEY, Singleton Law Firm, APC, Solana Beach, CA; Matthew C. Weiner, LEAD ATTORNEY, PRO HAC VICE, Hilliard & Shadowen LLC, Mechanicsburg, PA; Daniel M. Gonzales, PRO HAC VICE, Hilliard & Shadowen LLC, Austin, TX; Marion M. Reilly, Robert C. Hilliard, PRO HAC VICE, Hilliard Munoz Gonzales LLP, Corpus Christi, TX; Steve Shadowen, PRO HAC VICE, Hilliard & Shadowen LLC, Mechanicsburg, PA.

For CY, a Minor, bye, a Minor, Plaintiff: Gerald B. Singleton, LEAD ATTORNEY, Singleton Law Firm, APC, Solana Beach, CA; Robert C. Hilliard, LEAD ATTORNEY, Hilliard Munoz Gonzales LLP, Corpus Christi, TX; Matthew C. Weiner, Hilliard & Shadowen LLC, Mechanicsburg, PA.

For United States of America, Dorian Diaz, Defendants: U S Attorney CV, LEAD ATTORNEY, U S Attorneys Office Southern District of California, Civil Division, San Diego, CA; Dianne Schweiner, LEAD ATTORNEY, U S Attorneys Office Southern District of California, Civil Division, San Diego, CA; Siegmund F. Fuchs, LEAD ATTORNEY, United States Department of Justice, Torts Branch, Washington, DC.

For United States Department of Homeland Security, United States Customs and Border Protection, Office of Border Patrol, Janet Napolitano, Thomas S. Winkowski, David Aguilar, Alan Bersin, Kevin K. McAlleenan, Michael J. Fisher, Paul A. Beeson, Richard Barlow, Rodney S. Scott, Chad Michael Nelson, Defendant: U S Attorney CV, LEAD ATTORNEY, U S Attorneys Office Southern District of California, Civil Division, San Diego, CA; Siegmund F. Fuchs, LEAD ATTORNEY, United States Department of Justice, Torts Branch, Washington, DC.

ORDER

WILLIAM Q. HAYES, United States District Judge.

The matter before the Court is the Motion to Dismiss Plaintiffs' Second Amended Complaint filed by Defendants Janet Napolitano, Alan Bersin, David Aguilar, Michael Fisher, and Chad Nelson. (ECF No. 65).

I. Background

On June 17, 2013, Plaintiffs Maria Del Socorro Quintero Perez, the widow of Jesus Alfredo Yañez Reyes (" Yañez" ), and CY and BY, the minor children of Yañez, commenced this action, seeking damages for the death of Yañez, as well as declaratory relief. (ECF No. 1). On January 2, 2014, Plaintiffs filed the First Amended Complaint (" FAC" ). (ECF No. 25). The FAC asserted the following claims for relief: (1) violation of the law of nations against the Government Defendants [1]; (2) violation of the Fifth Amendment's Due Process Clause against the Government Defendants and Supervisor Defendants[2]; (3) violation of the Fifth Amendment's Due Process Clause against the Agent Defendants[3]; (4) violation of the Fourth Amendment's prohibition against unreasonable seizures against the Government Defendants and Supervisor Defendants; (5) violation of the Fourth Amendment's prohibition against unreasonable seizures against the Agent Defendants; (6) violation of Fifth Amendment equal protection against the Government Defendants and Supervisor Defendants; (7) violation of Fifth Amendment equal protection against the Agent Defendants; and (8) Declaratory Relief regarding the judgment bar provision of the Federal Tort Claims Act (" FTCA" ).

On February 18, 2014, the Government Defendants and Supervisor Defendants sued in their official capacities filed a motion to dismiss the FAC. (ECF No. 26). On February 18, 2014, the Supervisor Defendants sued in their individual capacities and Border Patrol Agents Dorian Diaz and Chad Nelson filed a motion to dismiss. (ECF No. 27). On September 3, 2014, the Court issued an Order granting in part and denying in part the motions to dismiss. (ECF No. 43). The Court dismissed the FAC as to Defendants Aguilar, McAleenan, and Winkowski for lack of personal jurisdiction. The Court dismissed Plaintiffs' first claim for violation of the law of nations, second claim and third claims for violations of the Fifth Amendment's Due Process Clause, sixth and seventh claims for violations of Fifth Amendment equal protection, fourth claim for violation of the Fourth Amendment (as to all defendants except Defendant Fisher), and fifth claim for violation of the Fourth Amendment (as to Defendant Nelson only).

On October 2, 2014, Defendant Fisher filed a motion for reconsideration of the Court's September 3, 2014 Order. (ECF No. 48). On November 25, 2014, Plaintiffs filed the Second Amended Complaint (" SAC" ), which is the operative pleading. (ECF No. 61). On December 10, 2014, the Court issued an order denying the motion for reconsideration as moot. (ECF No. 64).

On December 16, 2014, Defendants Napolitano, Bersin, Aguilar, Fisher, and Nelson filed the Motion to Dismiss Plaintiffs' Second Amended Complaint and a request for judicial notice. (ECF Nos. 65-66). On January 5, 2015, Plaintiffs filed an opposition and a response to the request for judicial notice. (ECF Nos. 71-72). On January 12, 2015, Defendants filed a reply. (ECF No. 74).

II. Allegations of the SAC

At dusk on June 21, 2011, Yañez and Jose Ibarra-Murietta (" Murietta" ) crossed the border from Mexico to the United States together. Their crossing began in the Castillo neighborhood of Ciudad Tijuana. The duo squeezed through a small hole in the primary border fence that abutted the Castillo neighborhood, and emerged into a dried-out concrete culvert between the primary border fence (the corrugated solid metal fence closest to Mexico) and the secondary border fence (the high-tech chain link fence closest to the United States). The culvert runs north from the primary fence to Stuart's Bridge, which abuts the secondary fence.

(ECF No. 61 at 11).

" Murietta led the pair and was the first to traverse the length of the culvert and climb out at Stuart's Bridge. There, he encountered Border Patrol Agent Nelson." Id. at 12. " Agent Nelson arrived at Stuart's Bridge in response to Border Patrol Agent Diaz's radio call requesting backup to apprehend Yañez and Murietta. Upon seeing Agent Nelson, Murietta leapt back into the culvert and began scaling a pole up the side of Stuart's Bridge." Id. " Agent Nelson, who had chased Murietta into the culvert, yelled to Agent Diaz, who was already at the top of Stuart's Bridge, to cut off Murietta's escape." Id. " Murietta saw Agent Diaz above him and descended back into the culvert where Agent Nelson waited." Id. " Yañez, who had stayed in the culvert near the primary fence, escaped back to Mexico through the small hole in the fence, fearing for his life." Id.

" Back on the ground at Stuart's Bridge, Murietta evaded Agent Nelson and ran south toward the primary fence where Yañez had just escaped. Agent Nelson caught Murietta in the culvert close to the primary fence." Id. " After grappling for a short time, Murietta escaped Agent Nelson's hold, climbed out of the culvert, and ran east down a dirt road that is parallel to the primary fence but separated from it by a wide swath of grass. Agent Nelson gave chase, running parallel and to the south of Murietta." Id. " Murietta and Agent Nelson began grappling again in the dirt road, and Agent Nelson swept Murietta's legs and wrestled him to the ground. Agent Nelson then admittedly began to strike Murietta while pinning him to the ground." Id.

" Meanwhile, Yañez had run parallel to Agent Nelson and Murietta on the southern side of the primary fence. When Murietta fell and Agent Nelson began to subdue him, Yañez, fearful that he might be the next victim of the Agents' aggression, climbed into a tree that leaned against the southern side of the primary fence near the area where Agent Nelson and Murietta were grappling in the road." Id. at 13.

At this point, witnesses' versions of the critical events differ sharply. The Agents assert that during Nelson's struggle with Murietta, Yañez threw two rocks (per Agent Nelson) or one or possibly two rocks (per Agent Diaz) at Agent Nelson. The Agents acknowledge, however, that when Yañez was allegedly throwing the rock(s), he was wedged into the tree on the southern side of the primary fence. The Agents admit that the rock(s) was somewhere between the size of a golf ball and a baseball. The Agents further acknowledge that the alleged rock(s) did not hit Agent Nelson or anyone else.

Id. " The Agents apparently further assert that, while Agent Nelson and Murietta struggled on the ground, Yañez threw a nail-studded board that struck Agent Nelson in the head, glancing off his hat. Agent Nelson was not injured by this alleged board." Id. " According to Agent Nelson, at about the time that Yañez allegedly threw the board, Diaz arrived to help subdue Murietta. Agent Diaz allegedly told Yañez to get off the fence, and then began helping Agent Nelson get control of Murietta." Id.

" Agent Nelson acknowledges that then, without any warning to Yañez and any further alleged throwing of a rock or a board by Yañez, Agent Nelson [sic] pulled away from the scuffle with Murietta. Agent Diaz removed his sidearm from its holster, uttered not a single additional word, and shot Yañez in the head." Id. at 13.

At the time Agent Diaz shot Yañez, Yañez had " allegedly raised his hand as if to begin a throwing motion" but " Agent Diaz did not see any rock or anything else in Yañez's hand, which Agent Diaz acknowledges was closed into a fist." Id. at 14.

" Murietta's account of the events that evening differs markedly from those of the Agents with respect to the specific circumstances surrounding Agent Diaz's shooting of Yañez." Id. at 15. " Murietta asserts that Yañez never threw anything at Nelson or anyone else. Indeed, the shape and height of the tree, the height of the primary fence, and the distance of the tree and the fence from Agent Nelson made it impossible for Yañez (or any person) to throw rocks or wood at the agents with lethal force or accuracy." Id.

" Instead, both Agent Nelson and Agent Diaz had Murietta down on the ground and were beating him. Agents Nelson and Diaz easily outweighed and outmuscled the slight-framed Murietta, who was facedown in the dirt road. In fact, when Murietta was eventually taken away by a cadre of Border Patrol agents, he was disoriented and his mouth was covered with his own blood." Id.

" While Agents Nelson and Diaz had Murietta on the ground and were beating him, Yañez climbed into the tree on the south side of the primary fence, fearing that he would be next, and tried to dissuade Agents Nelson and Diaz from continuing the beating." Id. at 15-16. " In an apparent effort to stop the attack, Yañez felt compelled to yell that he was going to use his cellphone to take video and pictures of the beating. Upon hearing Yañez's response to the Agents' attack on Murietta, Agent Diaz stopped beating Murietta, stood up, and, without warning to Yañez or without any kind of provocation from Yañez that would justify Agent Diaz's use of deadly force, shot Yañez in the head." Id. at 16.

" A sufficient amount of time elapsed between Agent Diaz standing up from the scuffle with Murietta and Agent Diaz shooting Yañez for Agent Nelson to intervene and stop the shooting." Id. at 13-14. " Agent Nelson conspired with Agent Diaz to unlawfully beat Murietta and unlawfully provoke Yañez to respond to this beating either by throwing objects at Agent Nelson or threatening to record the beating with a cell phone. In commission and in furtherance of that conspiracy, Agent Diaz shot Yañez, a result that Agent Nelson knew, or should have known, would occur." Id. at 14. " Agent Nelson further unlawfully provoked Yañez to respond to the Agents' beating of Murietta either by throwing objects at Agent Nelson or threatening to record the beating with a cell phone. As a result of that provocation, Agent Diaz shot Yañez, a result that Agent Nelson knew, or should have known, would occur." Id.

Yañez was killed as a result of the United States Border Patrol's socalled " Rocking Policy." Pursuant to the Rocking Policy, Border Patrol agents along the nation's southern border deem the throwing of rocks at them by persons of Hispanic descent and presumed Mexican nationality to be per se lethal force to which the agents can legitimately respond with fatal gunfire. Under the Rocking Policy, Border Patrol agents shoot to kill Mexican nationals who allegedly throw rocks at them, regardless of whether the alleged rock-throwing poses an imminent risk of death or serious injury to the agents or anyone else, and regardless of whether other, non-lethal means are available to avert any such risk. In recent years, Border Patrol agents acting pursuant to the Rocking Policy have shot and killed at least thirteen persons and have seriously injured more. The Rocking Policy has the imprimatur of the highest officials of the Department of Homeland Security and the Customs & Border Protection Agency.

Id. at 2-3.

The Government Defendants and Supervisors knew or should have known, at all relevant times, that the Rocking Policy was being carried by Border Patrol agents along the southern border who " regularly used excessive, lethal force against persons of perceived Hispanic descent and Mexican nationality." Id. at 19. " Each Supervisor Defendant in fact knew of, approved, and implemented the unlawful Rocking Policy." Id. at 20. The Supervisor Defendants' knowledge and acquiescence of the Rocking Policy is evinced by their knowledge of " a whole series of unlawful Border Patrol killings," public statements made by Border Patrol agents' representatives that throwing rocks is per se lethal force, " the U.S. Department of Justice's conclusion that an agent's shooting of an unarmed and unthreatening teenager was consistent with Border Patrol policy and training," the Supervisor Defendants' rejection of entreaties from numerous human rights organization " deploring the Rocking Policy," Defendants rejecting a report they had commissioned that concluded that the Rocking policy was unlawful and should be eliminated, and " admissions by a high-ranking CBP internal affairs official that Defendants knew of and condoned Border Patrol agents' unlawful use of excessive force." Id. at 20.

The SAC alleges that there were at least ten instances prior to Yañez's death where Mexican nationals were shot by Border Patrol agents in response to alleged rock throwing. The SAC alleges that, in some of these instances, a Mexican national was shot while attempting to flee. The SAC alleges that, in other instances, the rock-throwing allegations turned out to be false. For example, " [i]n 2003, Border Patrol agents killed Ricardo Olivares Martinez by shooting him five times as he attempted to flee. Agents alleged he was throwing rocks." Id. at 22. " [E]ach Supervisor Defendant knew of the facts underlying each incident" because they would receive emails of " Significant Incident Reports," which are prepared each time a Border Patrol agent applies use of force. Id. " When questioned about her knowledge and reaction to previous deaths of Mexican nationals caused by border patrol agents, Defendant Napolitano stated at a congressional hearing: 'With respect to use of force, an appropriate use of force, we examine each and every case in which there is a death, to evaluate what happened, and whether or not the agent or agents involved should be subject to some sort of disciplinary measure.'" Id. at 21. " Each Supervisor Defendant knew that these killings, individually and collectively, reflected a pattern and practice of Border Patrol agents treating the throwing of rocks at them as per se lethal force to which CBP and DHS policy allowed them to respond with deadly force." Id. at 24. " The Supervisor Defendants' failure and refusal to discipline the agents who fired the fatal shots in these incidents, and/or to promulgate a lawful policy regarding appropriate responses to rock-throwers, reinforced Border Patrol agents' belief that the Rocking Policy was appropriate and lawful." Id.

In June 2010 a Border Patrol agent at the border near El Paso, Texas shot across the border and killed 15-year-old Sergio Hernandez. The agent asserted to FBI investigators that he was " surrounded" by rock-throwers and that the victim was throwing a rock when the agent shot him. Fortunately, a passerby caught the incident on a cellphone video, and two other videotapes -- one taken by the Border Patrol itself, and another by a nearby landowner -- also later surfaced. Those videos conclusively show that the agent was not surrounded; the agent was not under attack from rocks or anything else; the victim had not thrown and was not throwing any rocks; and the agent had many non-lethal alternatives available to him if he somehow felt threatened, including simply backing up further away from the border.
After the shooting of Sergio Hernandez, the Interior Secretary of Mexico, Fernando Gómez Mont, personally called Defendant Napolitano, protesting the killing of Hernandez as well as the killing of another Mexican man on the California-Mexico border two weeks before the Hernandez killing. Gómez Mont. demanded from Defendant Napolitano that the U.S. and Mexico carry out a joint review of protocols on the use of force by U.S. Border Patrol, stating the " unjustified use of force against our population is unacceptable to the Government of Mexico."

Id. at 29.

In June 2010, Mexico's Foreign Relations Department specifically stated to Defendant Napolitano that it " 'energetically condemn[ed]' the Border Patrol's killing of Sergio Hernandez, noting particularly that " according to international standards, lethal force must be used only when the lives of people are in immediate danger and not as a dissuasive measure.'" Id. at 33. Amnesty International concluded that this shooting was a " grossly disproportionate response and flies in the face of international standards...." Id. at 34.

" Some Mexican politicians even demanded that the United States detain and extradite the shooter to Mexico to stand trial." Id. at 29. " Mexican President Felipe Calderon said he and his government are 'worried' about what he called 'this surge of violence against Mexicans' along the border." Id. " The U.S. Department of Justice conducted an investigation of the incident and concluded that Sergio Hernandez had not thrown any rock at the agent. But the DOJ nevertheless refused to pursue criminal charges against the agent because his conduct conformed to CBP policy." Id. at 30.

" Defendants Bersin, Aguilar, Napolitano failed and refused to modify or abandon the Rocking Policy in the face of now several patently unlawful killings." Id. at 31.

Instead, Defendant Bersin personally signed and issued CBP's amended use of force policy in October 2010 with no attempt to address what he and the other Supervisor Defendants knew or reasonably should have known was a pattern and practice of border agents unjustifiably using deadly force in response to alleged rock throwers. Defendant Napolitano, as Secretary of DHS, personally approved CBP's patently unlawful October 2010 use of force policy handbook despite having knowledge of the facts surrounding previous killings, and having been specifically told by Mexican officials, human rights organizations, and others of such unlawful practices by border agents.
Neither Napolitano, Aguilar, Bersin, Fisher nor any Supervisor Defendant ever publicly reprimanded or disciplined any agent for shooting at a Mexican so long as the Agent alleged a rock was thrown. Accordingly, Border Patrol agents knew that the existing use of force policy would allow them to continue to use lethal force in such situations.

Id.

The SAC also alleges that several Border Patrol spokespersons and representatives publicly referred to rock-throwing as per se lethal force that justifies the use of lethal force. " For example, after border agents killed Guillermo Martinez Rodriguez in 2005, claiming he was throwing rocks while simultaneously running away, an official spokesperson for the Border Patrol publicly justified the shooting, stating: 'If I was put in the same shoes of this agent, that's exactly what we'd have to do.'" Id. at 26. In addition, " the National Border Patrol Council of the American Federation of Government Employees ('NBPC') issued a nationwide press release that succinctly stated the Rocking Policy. The NBPC represents more than 17,000 Border Patrol agents and support staff." Id. at 27. " The heading of the NBPC press release stated bluntly, 'Rock Assaults are Deadly Force.' The statement continued, 'Since biblical times rocks have been used as a crude but effective weapon to injure and kill humans.'" Id. " The statement made unmistakably clear that the Rocking Policy treats rock-throwing as per se lethal force to which agents are justified in responding with lethal force: 'Rocks are weapons and constitute deadly force. If an agent is confronted with deadly force they will respond in kind.'" Id. " Each Supervisor Defendant had actual knowledge of these repeated public statements by Border Patrol spokespersons and union representatives. Despite this knowledge, none of the Supervisor Defendants countermanded any of the statements either publicly or through the chain of command." Id. at 28.

The SAC also alleges several instances of human rights organizations publicly denouncing excessive force at the border prior to Yañez's death. Some of these statements denounced the use of deadly force against rock-throwers. For example, in 2008, the executive director of the American Civil Liberties union wrote to members of Congress stating: " Simply put, it is not acceptable to use lethal force when confronted with rock throwers in ... border protection situations." Id. at 32.

In 2012, DHS and CBP commissioned PERF, " a highly respected non-profit organization that advises law enforcement agencies on best practices, to review the then-extant use of lethal force policies for border patrol agents and to review the deadly force incidents from January 2010 through October 2012." Id. at 35. The SAC alleges that PERF provided DHS and CBP with a report in 2013 (the " PERF Report" ). The SAC alleges that the PERF Report: (1) found that some Border Patrol shootings of rock-throwers could have been avoided; (2) recommended specific training for Border Patrol agents on responding to rock-throwing; and (3) recommended use of force policies specifically addressing rock-throwing encounters.

On November 5, 2013, Defendant Fisher announced that the agencies had decided to reject the report " and instead to reaffirm yet again the unlawful Rocking Policy." Id. at 37. On March 7, 2014, at the insistence of new Secretary of Homeland Security Jeh Johnson, Defendant Fisher amended the policy. " In a memorandum to agents he stated for the first time that agents should, among other things ... 'avoid placing themselves in positions where they have no alternative to using deadly force ... not discharge firearms in response to thrown or hurled projectiles unless the agent has a reasonable belief, based on the totality of the circumstances, to include the size and nature of the projectiles, that the subject of such force poses an imminent danger of death or serious injury[] and ... first 'seek[] cover or distanc[e] themselves from the immediate area of danger.'" Id. at 37. In May 2014, CBP " finally revised its Use of Force Policy Handbook" to include similar language. Id.

The SAC alleges that the Supervisor Defendants' failure to train, discipline, countermand public statements, and amend use of force policies proximately caused Yañez's death.

The SAC asserts the following claims for relief: (1) violation of the law of nations against the Government Defendants; (2) violation of the Fifth Amendment's Due Process Clause against the Supervisor Defendants; (3) violation of the Fifth Amendment's Due Process Clause against the Agent Defendants; (4) violation of the Fourth Amendment prohibition against unreasonable seizures against the Supervisor Defendants; (5) violation of the Fourth Amendment prohibition against unreasonable seizures against the Agent Defendants; (6) violation of Fifth Amendment equal protection against the Supervisor Defendants; and (7) violation of Fifth Amendment equal protection against the Agent Defendants. The SAC requests compensatory damages, punitive damages, and attorneys' fees.

III. Request for Judicial Notice (ECF No. 66)

Defendants request judicial notice of the 2010 Customs and Border Patrol (" CBP" ) Use of Force Policy Handbook and the February 2013 PERF Report. Defendants contend that the contents of these documents are proper subjects of judicial notice because they are cited to and referenced in the SAC. Plaintiffs do not oppose judicial notice of these documents.

" A court may ... consider certain materials--documents attached to the complaint, documents incorporated by reference in the complaint, or matters of judicial notice--without converting the motion to dismiss into a motion for summary judgment." United States v. Ritchie, 342 F.3d 903, 908 (9th Cir. 2003). " [A] district court ruling on a motion to dismiss may consider a document the authenticity of which is not contested, and upon which the plaintiff's complaint necessarily relies." Parrino v. FHP, Inc., 146 F.3d 699, 706 (9th Cir. 1998), superseded by statute on other grounds as stated in Abrego Agrego v. The Dow Chem. Co., 443 F.3d 676, 681-82 (9th Cir. 2006). " [D]ocuments whose contents are alleged in a complaint and whose authenticity no party questions, but which are not physically attached to the pleading, may be considered in ruling on a Rule 12(b)(6) motion to dismiss." Branch v. Tunnell, 14 F.3d 449, 454 (9th Cir. 1994), overruled on other grounds by Galbraith v. County of Santa Clara, 307 F.3d 1119 (9th Cir. 2002).

The Court will consider the 2010 CBP Use of Force Policy Handbook and the February 2013 PERF report because their " contents are alleged" in the SAC, and their " authenticity no party questions" because Plaintiffs do not oppose Defendants' request. Branch, 14 F.3d at 454.

IV. The 2010 CBP Use of Force Policy Handbook and the February 2013 PERF Report

The 2010 CBP Use of Force Policy Handbook, dated October 2010, provides, in relevant part:

2. Authorized Officers/Agents may use deadly force only when necessary, that is, when the officer/agent has a reasonable belief that the subject of such force poses an imminent danger of death or serious physical injury to the officer/agent or to another person.

3. If feasible, and if to do so would not increase the danger to the officer/agent or others, a verbal warning to submit to the authority of the officer/agent shall be given prior to the use of deadly force.

4. Discharging a firearm at a person shall be done only with the intent of stopping that person from continuing the threatening behavior that justifies the use of deadly force.
5. Deadly force is not authorized solely to prevent the escape of a fleeing subject. Deadly force against a fleeing subject is only authorized, in accordance with the paragraphs above, if there is probable cause to believe that:
a. The subject has inflicted or threatens to inflict serious physical injury or death; and
b. The escape of the subject poses an imminent threat of death or serious physical injury to the officer/agent or to another person.

(ECF No. 66-1 at 4).

The 2013 PERF Report states that it has reviewed " all CBP use of deadly force events from January 2010 through October 2012 and CBP use of force policies, equipment, tactics, and training." Id. at 10. The 2013 PERF Report further states that " [t]he case reviews raise a number of concerns, especially with regard to ... shots ...


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