By: Erin Tucker an Julie Watson
SAN DIEGO (AP) — The Justice Department will not bring criminal charges in the death of a man from Mexico who was shocked by U.S. border authorities with a stun gun five years ago, federal officials announced Friday in closing their investigation.
The 2010 death of 42-year-old Anastasio Hernandez-Rojas raised complaints of excessive force from the then-president of Mexico and others, and investigators with the Justice Department examined the case for evidence of a civil rights violation.
Federal officials said their review didn't find enough evidence to support a criminal prosecution. They said they accepted the agents' contention that the force they used was reasonable and necessary to restrain Hernandez-Rojas when he was "noncompliant and physically assaultive."
Hernandez-Rojas' widow, Maria Puga, said she felt disillusioned by the ruling.
"After waiting five years for a decision from the government, this is the worst news to be given," she said. "The autopsies were clear that this was a homicide. I don't know why they are not going to do anything. My husband was killed by electric shocks and being beaten."
The altercation began as Hernandez-Rojas, who officials said had been caught coming into the U.S. illegally, was being returned to Tijuana, Mexico, through the busy San Ysidro border crossing.
The Justice Department said Hernandez-Rojas began fighting with the agents when his handcuffs were removed and struggled and kicked at them as they tried to restrain him. A Customs and Border Protection officer used a stun gun before the breathing of Hernandez-Rojas slowed and he became unresponsive, federal officials said.
He died a couple days later after being removed from life support.
Autopsies show that Hernandez-Rojas suffered a heart attack during the confrontation, with heart disease, electric shocks from the stun gun and methamphetamine intoxication all described as contributing factors, the Justice Department said.
Andrea Guerrero of Equality Alliance, which helped the family, said the case shows the need for reforms to address excessive force by Customs and Border Protection officers.
When a federal grand jury began investigating in 2012, 16 members of Congress had written then-Homeland Security Secretary Janet Napolitano to say Hernandez's death "may be emblematic of broader structural problems."
"We have a policing crisis in this country and CBP is at the front of it," Guerrero said. "The decision not to prosecute today fuels the impunity at the agency and does nothing to address the crisis that we're in."
It is extremely rare for U.S. border authorities to face criminal charges for deaths or injuries to migrants.
To bring a federal civil rights case, the Justice Department would have had to show federal officers intentionally deprived Hernandez-Rojas of his civil rights through using excessive force — a challenging legal standard.
"Neither accident, mistake, fear, negligence nor bad judgment is sufficient to establish a federal criminal civil rights violation," the Justice Department said in a statement.
Hernandez-Rojas' family has brought a civil case against eight agents and four supervisors. The case alleges they violated Hernandez-Rojas' rights by beating him after he asked for help. They also allege his death deprived his children of their due process right to associate with their father.
A federal judge in San Diego ruled the case can go to trial. The defendants have said using force was justified because Hernandez-Rojas posed a threat to officers and they are appealing the judge's decision to send the case to trial.