BY JIM KOURI
Justice Department officials said in a news release that its “comprehensive and thorough investigation” determined there was “insufficient evidence to pursue federal criminal charges.”
The Justice Department also concluded that no federal civil rights charges could be pursued in this matter. Under the applicable civil rights statutes, prosecutors must establish, beyond a reasonable doubt, that a law enforcement officer willfully deprived an individual of a constitutional right, meaning with the deliberate and specific intent to do something the law forbids. This is the highest standard of intent imposed by law.
According to law enforcement reports, fifteen-year old Sergio Hernandez-Guereca was shot in his head as U.S. Customs and Border Protection agents tried to detain two men who had crossed into the United States illegally near the Paso del Norte Bridge in El Paso, Texas. The teenager was pronounced dead at the scene.
A federal law enforcement officer told the Law Enforcement Examiner that Hernandez was with a gang of youths throwing rocks at the agents. The anonymous law enforcement source stated that witnesses claimed one agent fired several shots toward the group, but the still unidentified agent claimed he acted in self-defense.
Mexican officials, including President Felipe Calderón, denounced the teen’s death. The country’s secretary of state said the use of firearms was a “disproportionate use of force” in response to rock throwing.
However, police use of force experts have told the Law Enforcement Examiner that the throwing of rocks by a suspect is considered use of deadly physical force according to the “Resistance/Force Continuum.”
“There appeared to be no doubt that the border officer was being attacked using rocks. All you need is a direct hit on the skull by a rock to cause permanent brain injury or even death,” said Lieutenant Richard Fierra, a charter member of the Society of Police Black Belts and an expert in use-of-force training.
The Justice Department claims it conducted a comprehensive and thorough investigation into the shooting, which occurred while smugglers attempting an illegal border crossing hurled rocks from close range at a CBP agent who was attempting to detain a suspect.
During the investigation, law enforcement officers and forensic technicians collected, analyzed and reviewed evidence from the scene of the shooting as well as civilian and surveillance video. They also analyzed law enforcement radio traffic, 911 recordings, volumes of CBP agent training and use of force materials. In addition, investigators reviewed the shooting agent’s training, disciplinary records, and personal history. Also, they conducted site visits and analysis and consulted with the International Boundary and Water Commission concerning jurisdictional issues.
“The investigation revealed that the agent — whose identity has been well-protected — did not act inconsistently with CBP policy or training regarding use of force. Based on a careful review and analysis of all the evidence, the team concluded that evidence would not be sufficient to prove beyond a reasonable doubt that the CBP agent violated the federal homicide laws in the shooting of Hernandez-Guereca,” according to Justice Department officials.
“Accordingly, the investigation into this incident has been closed without prosecution.”
The Moral Liberal Contributing Editor, Jim Kouri, CPP, is the fifth Vice President and Public Information Officer of the National Association of Chiefs of Police, has served on the National Drug Task Force and trained police and security officers throughout the country. Contact Jim.