Vanderbilt Political Review Winter 2015 | Página 18

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who assert their Constitutional rights.
Unsurprisingly, non-citizens have
borne the lion’s share of abuses. Some
high profile cases like that of Rojas receive media attention, but far more go
unnoticed since Border Patrol agents
largely operate with minimal oversight.
And thanks to the Supreme Court’s
ruling in United States vs. VerdugoUrquidez (1990), which held that the
Constitution does not apply to foreigners in foreign territory, the Justice Department has largely been able to ignore complaints of Border Patrol abuse.
Since 2005, at least 42 people (including 13 American citizens) have died
at the hands of on-duty Border Patrol
agents or other on-duty CBP officials.
Most of these deaths were shootings. In
five cases, the suspects fired on officers
first so it is plausible that agents acted
in self-defense. Many of the other cases,
however, give cause for doubt. In nine
instances, eyewitness reports differed
from the agency’s official account. At
least six of these killings took place on
the Mexican side of the border, where
Border Patrol agents lacked jurisdiction.
Consider the case of sixteen-year-old
Josée Antonio Elena Rodriguez which
the ACLU covered in March of last year.
Rodriguez was walking along the road

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VANDERBILT POLITICAL REVIEW

in Nogales, Mexico, to meet his brother
on the Arizona side when Border Patrol
agents gunned him down. An autopsy
later showed that Rodriguez had suffered
ten shots to the back and head. CBP tried
to justify his killing on the grounds that
he had been one of a group of teenagers
throwing rocks at Border Patrol agents
who had been standing on top of a hill
behind a 60-foot tall fence. Such a justification is nonsensical. How could Border Patrol agents identify their assailants from so far away, behind a fence,
in the dark? Even if Rodriguez had been
throwing rocks, he would likely lack the
power or accuracy to pose a legitimate
threat. Consider also that Rodriguez was
simply walking down the street when
he died. A quick common-sense check
tells us that the agents could have easily subdued him without lethal force. To
date, however, neither CBP nor the DOJ
has reprimanded any officers involved.
In fact, none of the officers involved
in the 42 killings received any penalty.
In March 2014, CBP updated its use
of force policies in response to complaints of abuse, but the Justice Department continues to sweep Border Patrol
abuses under the rug. In 2010, federal
investigators looked into the killing of
15-year-old Sergio Hernandez Garcia.

The Justice Department concluded that
since Garcia was a Mexican citizen in
Mexican territory, the agency lacked the
authority to prosecute the officer who
had killed Garcia. Whether or not Garcia
posed a legitimate threat became irrelevant—