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A new video that aired Friday on the PBS show "Need to Know" raises disturbing questions about actions by U.S. border agents and the San Diego Police Department's account in the May 31, 2010 death of Anastacio Hernández Rojas (right) at the San Ysidro border crossing. The San Diego County Medical Examiner's Office ruled the death a homicide and that Hernández, 42, died of a heart attack following a "physical altercation with law enforcement officers." The video shows a handcuffed, prone Hernández being hit by Taser fire even when he poses no danger. The PBS show also addressed that Hernández had methamphetamine in his blood, but cited medical experts as saying that the amount was small.
Questions that should be answered are:
• Why did San Diego police report that Hernández became violent after he was released from his handcuffs when he actually remained handcuffed, and witnesses say he did not become violent?
• Why did a border agent repeatedly use a Taser on Hernández when he posed no danger?
• Why have no charges been filed against anyone if Hernández's death is listed as a homicide? What is the status of the federal investigation into the death?
• "Need to Know" reports that Hernández was not released at the border with others being deported but instead was driven separately to the border crossing in a vehicle containing an agent Hernández sought to make a complaint against. Why was this? The agent had allegedly kicked Hernández in the ankle, which Hernández had had surgically repaired with screws years before.
• Is that border agent still employed? Is the border agent who used the Taser still employed? Why did no other border agent (there were more than a dozen surrounding the prone Hernández and other agents in the area) step in to halt the incident?
• Why did border agents seize border crossers' cellphones and cameras and erase footage of the incident?
Update, April 25: U-T San Diego editorial says: "Thorough probe of border incident a must." It says Border Patrol union says no Border Patrol member used a Taser in the incident; the family's legal filing says it was a Customs and Border Protection Agent that used the Taser.
Tijuana-born and University of San Diego-educated documentary maker John Carlos Frey is to be commended for tracking down witnesses and obtaining cellphone footage of the incident shot by a Seattle woman, Ashley Young. Frey is himself interviewed by PBS's John Larson on the "Need to Know" report. Larson lives in San Diego.
The show outlined the following sequence of events:
Hernández, a native of San Luis Potosí, had been in San Diego 27 years, although without legal status. He worked in construction and the show says the recession may have hit his pocketbook to the point that on Mothers Day 2010, he was arrested for trying to shoplift steak and a bottle of tequila. The show said the goods may have been intended to be part of a Mothers Day celebration.
The married father of five was deported to Tijuana. The show did not report, as the San Diego Union-Tribune did in 2011, that Hernández had been previously deported.
After his deportation following the May 2010 shoplifting incident, Hernández crossed back into the U.S. in a mountainous area east of San Diego, but the Border Patrol caught him and took him to a detention facility. (Detained along with Hernández was his brother, Pedro; the show did not mention this. The show also does not mention that Hernández, at the Border Patrol's Barracks 5 facility, was asked to dispose of water he was carrying in a plastic jug and place the jug in a trash can. Hernández poured the water into the trash can, causing the U.S. agent's anger. Hernández family's legal filing (PDF).) The show did say a lawsuit from Hernández's family says a border agent "grabbed Anastacio and pushed him toward a nearby wall" and "repeatedly kicked the inside of Anastacio's ankles." The lawsuit said that Hernández requested medical treatment for his ankle and sought to file a complaint against the agent who kicked him. Hernández wanted a hearing and did not want to be immediately deported, but authorities ignored his request.
The show's announcer then says: "The situation escalates and takes a deadly turn." The voice over says, "They take him here, to a holding area at the border, where undocumented workers are deported back to Mexico. But instead of bringing Hernández Rojas here with the other illegal immigrants, they bring him alone, just before dark, in a car with the same agent about whom Hernández Rojas tried to file the complaint." This was on Friday, May 28.
The "Need to Know" announcer says San Diego police reported "that agents removed the handcuffs and Hernández Rojas became violent and that due to his combative behavior agents used a Taser to subdue him."
But the show cites witnesses as saying that Hernández was handcuffed and did not exhibit combative behavior. Humberto Navarette, identified as a former National Guard member, shot unclear video in which Hernández's plaintive wails for help are heard. In the video, Navarette asks agents why they were beating Hernández, whom Navarette said was handcuffed. "I can tell you he was not resisting," Navarette says on "Need to Know."
Young, in her 20s and a project manager in Washington state, shot video on her cellphone when she saw the scene below her while returning from Mexico on a pedestrian overpass. At that point, she said, two agents were on top of a handcuffed Hernández behind a U.S. vehicle. She said that in her estimation, Hernández was not resisting. She did say that at one point, when two agents tried to put him back into the vehicle, "He just kind of forced his feet against the frame of the car so he would not go into the car."
More agents arrived. She said, "Another officer arrives and pulled out a Taser and said, you know, 'Stop resisting.' "
Asked on "Need to Know" whether Hernández indeed was resisting, she replied, "No."
She added, "The first Tase, it was a shock and people (watching) were like, 'Why would they do this?' and after the first Tase, when he got Tased several more times, that's when people erupted."
In her video, an agent pulls off Hernández's pants and walks away with them, and the announcer says an agent appears to kneel on Hernández's neck. Hernández was taken to the hospital, where he died Monday, May 31.
Young told her "Need to Know" interviewer: "I think I witnessed someone being murdered."
Hernández family attorney Eugene Iredale was able to read the San Diego police interviews with the border agents and the announcer said Iredale found out that "unlike the official (San Diego police) press release, border agents admitted Hernández Rojas was handcuffed at the time he was fatally injured, and then hogtied, his feet bound."
Iredale said, "He was on the ground, he was handcuffed, he represented no danger. They Tased him five times and then swarmed all over him. That's brutality, that's torture."
The show was unable to get comment on the case from the U.S. government. The Justice Department did send an email saying it still had an open investigation in the case.
The show quotes two medical experts on the amount of meth in Hernández's blood. An email from Dr. Julie Holland of the New York University School of Medicine said the blood level of 0.16mg/l of methamphetamine "is considered to be very small." Toxicologist George Behonick of AIT Laboratories said the meth "finding appeared incidental."
"Need to Know" aired brightened, enhanced footage of Ashley Young's video Friday. This screenshot shows an agent firing a Taser at Hernández (the Taser flash can be seen in the bottom part of the circle) while other agents surround Hernández.
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Plano Informativo of San Luis Potosí reported March 5 that Hernández's mother has been granted a visa by U.S. authorities to attend court proceedings. (The story also calls the U.S. border agents assassins and says the death took place in Texas.) The story said Hernández's brother Pedro Hernández Rojas, who was detained by the Border Patrol at the same time as his brother, has given testimony to Mexico's National Human Rights Commission and may be able to give testimony in the U.S. . Story, PlanoInformativo. Hernández's mother, María de la Luz Rojas Olivo, did come up to the border after her son was beaten in 2010.
The "Need to Know" website and other websites that have posted coverage of the case have received the typical polarized commentary that accompanies stories involving illegal immigration, with some readers outraged at the death and other commenters saying Hernández got what he deserved or merits no sympathy because he was an illegal immigrant.
"Need to Know" says the incident may have occurred because a dramatic increase in the Border Patrol since the Sept. 11, 2001 attacks may have meant that some agents who never should have been hired were put on the government payroll. However, the show does not cite when any of the agents involved were hired: The government is not releasing that or hardly any other information about the incident.
"Need to Know" also cites parallels with the Rodney King beating video and aired a little more than a week before the anniversary of the 1992 riots sparked by the acquittal of Los Angeles police officers in the King affair.
Frey's reporting has been underwritten by the Investigative Fund of the Nation Institute.
Story, Frontera (PDF).
"Need to Know" webpage on its report
Frey's Los Angeles Times op-ed piece
Update, April 25: Frontera quotes Hernández family attorney Eugene Iredale as saying civil trial may not take place until August 2013. Story, Frontera (PDF).
Update, April 24: Televisa aired a report where Hernández's brother calls the border agents "animals." Televisa said all were still working.
Update, May 10: Anastacio Hernández's mother travels to Washington to present petition signed by 32,000 calling for justice in the case. Story, El Mexicano (PDF). Jump.
Update, May 12: Mexican Embassy officials meet with Hernández's mother, brother. Story, Frontera (PDF).