Today marks five years since Anastasio Rojas-Hernandez died. The Mexican immigrant’s tasing by a group of federal agents while he lay on the ground with zip-tied hands was video-recorded and is the basis of his family's wrongful death lawsuit, which still drags on in federal court.
By September 2014, seven law firms representing the 12 federal agents from ICE, Customs, and the Border Patrol had been paid at least $1.37 million in tax dollars, according to court records. Defense lawyers have regularly filed documents that have been rejected by the court for not following the court's legal filing rules; nearly all were edited, refiled, and accepted.
In January 2015, those defense lawyers filed an appeal of a ruling by judge James Lorenz — a challenge that the lawyer for Rojas-Hernandez's children and widow want Lorenz to designate as a frivolous appeal.
"They are delaying; they've dragged their feet in a systematic strategy throughout this case," said Gene Iredale, who represents Maria Puga and the five children she had with Rojas-Hernandez. "For the agents, justice delayed is justice."
On May 28, 2010, Rojas-Hernandez, 42, and his brother Pedro, were caught by Border Patrol agents on Otay Mountain after they crossed the border illegally. The brothers surrendered without incident, according to trial depositions, and were taken to the San Ysidro Border Patrol station for processing.
At the station, a Border Patrol agent ordered Rojas-Hernandez to dump the water bottle he carried into the trash, according to a trial brief. He poured the water into the trash can, and the agent confronted him for not disposing of the bottle. He put Rojas-Hernandez's hands against the wall and kicked the prisoner's ankles apart.
The agent didn't know that Rojas-Hernandez had a pin in one ankle from a past injury, but when he allegedly kicked his prisoner, he hit the pinned part and Rojas-Hernandez began asking for medical attention and to see a supervisor.
His requests, which some Border Patrol agents testified they remember and others dispute, should have triggered a trip to the hospital, by the Border Patrol's own policies. He also allegedly asked for an immigration hearing, which also should have kept him in custody. Instead, he was taken to an area called the “barracks” for immediate deportation under a largely discontinued program called “voluntary returns.” What happened at the barracks, until the cameras captured the end, is in dispute.
Border Patrol agents say that Rojas-Hernandez "kicked his way out of the vehicle" and began fighting with them and two ICE agents who were in the area. Other witnesses say he was quickly restrained and laid on the ground. Defense lawyers are adamant that Rojas-Hernandez continued to fight as additional Border Patrol agents and Customs officers from the San Ysidro Port of Entry joined the group surrounding Rojas-Hernandez.
Videos taken by people crossing on the footbridge above or standing on the ground show Rojas-Hernandez on the ground begging for help and yelling "don't treat me like an animal." At some point, a Border Patrol agent darts in and pulls Rojas-Hernandez's pants off of him. The final moments of video from witnesses' cameras show him laying on the ground, his hands zip-tied, as a Customs officer tases him three or four times and then puts the taser directly on his body for a final blast.
Rojas-Hernandez lies nearly motionless while the Customs officer yells "Stop resisting!” Then, three federal agents hold him down by kneeling on him. Five or ten minutes go by before they realize his heart stopped. They got his heart to start beating again, but he was brain-dead. He was pronounced dead on May 28, at Sharp Chula Vista, after life support was discontinued.
Meanwhile, responding to the shouts of passersby, federal agents rushed to the witnesses, took their cell phones, and deleted video off a half dozen of them.
With the passage of five years, San Diego police homicide detective Kevin Rooney, who led the outside investigation, has retired and moved away. The Border Patrol's Critical Incident Investigation team supervisor, Armando Gonzalez, has since been convicted of video peeping and lying to federal agents after he placed a hidden camera in a women's bathroom at the Chula Vista Border Patrol station.
San Diego lawyer Eugene Iredale filed suit against the government and the 12 federal agents less than a year after the incident — a case that now has 369 documents filed. More than 40 of those filings were rejected for not meeting court-document rules — all but 6 were filed by defense lawyers; 4 with discrepancies were filed by media outlets; and 2 by Iredale. At least 6 documents from defendants were accepted despite discrepancies, the court index indicates.
While the U.S. attorney's office represents the government, the 12 agents have private counsel whose bills are being paid by the Department of Justice. In response to a request under the Freedom of Information Act, the justice department tallied their bills in December and concluded the department had authorized payments of $1.37 million to the federal agents' lawyers.
The most recent documents involve appealing a ruling by the judge who ruled against the agents’ argument that the case should be dismissed because the federal agents have qualified immunity. In response, Iredale asked the judge to declare the appeal to be frivolous and to proceed to trial.
"Appeals come at the end of the case," Iredale said. "They have now successfully delayed justice for four years — if they are allowed to appeal, it will be two more years before we go to trial."