In 2 videos of officers' beatings, only 1 draws outrage

In May 2010, eyewitnesses shot cellphone videos that show a 42-year-old undocumented immigrant handcuffed, face down on the ground at the San Ysidro, Calif., port of entry and surrounded by U.S. border agents.

One agent rips the man's pants off and another shocks him with repeated blasts from a stun gun while Anastacio Hernandez Rojas begs for someone to help him.

Hernandez Rojas wails in agony as eyewitnesses yell at the agents, "Hey! He's not resisting, guys. Why do you guys keep pressing on him?"

The videos are disturbingly similar to the video of Los Angeles police officers kicking and beating Rodney King in 1991, which remains seared in the public's memory more than 20 years after an eyewitness shot it.

King survived. Hernandez Rojas died of his injuries three days later in a hospital. The San Diego medical examiner ruled his death a homicide.

Both cases raised much larger questions. Yet the reactions have been starkly different.

The King video ignited a fury of media coverage, provoking public outrage that led to a police investigation, felony charges against four of the officers, massive riots, and eventually civil-rights complaints and two federal convictions.

In contrast, no comparable national media storm happened after the Hernandez Rojas beating, even after the PBS program Need to Know last year uncovered a new, clearer video of Hernandez Rojas face down on the ground, handcuffed. More than a dozen U.S. Customs and Border Protection officers and Border Patrol agents surround him.

The PBS story was big news in Southern California, in the U.S. Spanish-language media and in Mexico, but "it certainly didn't catch fire. It didn't go viral," said John Carlos Frey, a Los Angeles-based investigative journalist and documentary filmmaker who helped uncover the video that was broadcast on PBS. "It was very sparsely covered."

As a result, the Hernandez Rojas case has prompted far less public outrage and criticism than the King case. More than three years later, none of the officers involved has been charged with any crimes, and the Department of Homeland Security has refused to say whether any have been disciplined.

The department also declined to comment.

However, the footage did prompt 16 members of Congress to demand an investigation, raising concerns that the Hernandez Rojas video was "emblematic" of broader training and accountability problems within the department.

Several immigrant-rights groups also are fighting for more answers.

"No, I don't think this case has gotten the attention it has deserved when the abuse was so clear," said executive director Arturo Carmona of, a Latino advocacy group based in Los Angeles that created an online petition to draw more awareness to the case.

Perception of Border Patrol

A major reason the King case provoked public outcry was that he was African-American and a U.S. citizen, and the incident touched a nerve about race and injustice in America, some analysts and immigrant-rights advocates say. King drowned accidentally last year.

Hernandez Rojas was an immigrant from Mexico who had been living in the U.S. illegally.

"They are 'illegal aliens' and therefore any use of force is justified," said Christian Ramirez, director of the advocacy group Southern Border Communities Coalition. "'They had it coming,' is sort of the thinking among many people."

Also a common perception is of "the Border Patrol being on the front lines in the war against terrorism, so their actions are never questioned," Ramirez said.

Those perceptions have helped create a culture in which border agents operate under less transparency and accountability than local law-enforcement officers, said David Shirk, a political science professor and director of the Justice in Mexico project at the University of San Diego.

As a result, when federal border agents do use force, the same level of scrutiny to determine whether they acted improperly is less likely, said Shirk, an expert on border policy and security.

Border Patrol agents and Customs and Border Protection officers resort to deadly force infrequently. But an Arizona Republic investigation of nearly 1,600 use-of-force cases found that in 42 cases in which agents or officers have killed people since 2005, none faced criminal prosecution from the Justice Department or is publicly known to have been disciplined by Customs and Border Protection even though in at least nine cases, victims' family members filed wrongful-death lawsuits.

By contrast, Shirk noted that in the King case, "there was a mechanism in place to ensure that these officers were held accountable. ... A police officer is much more accountable to the law than a DHS agent."

Shirk is concerned the circumstances that led to Hernandez Rojas's death may never be fully investigated because of the lack of scrutiny and accountability under which Homeland Security officers on the border operate.

"Agents are protected essentially by their badges, and that's a real problem," he said. "The Department of Homeland Security has a very important public purpose, but it also should have a high level of public responsibility and accountability, and that's not presently the case."

Not everyone agrees.

Peter Nuñez, the former U.S. attorney in San Diego, said he is confident the case is being properly investigated.

The video has been shown "incessantly" in San Diego, he pointed out. A wrongful-death lawsuit from the family of Hernandez Rojas is pending, a congressional inquiry is under way, and an internal investigation has been conducted. An FBI investigation also is pending.

Possibly, "everybody that's looked at this has come to the conclusion that (nobody) did anything wrong," Nuñez said.

The incident

Hernandez Rojas was an undocumented immigrant from Mexico but had lived in the U.S. for more than 20 years, according to his family's wrongful-death lawsuit filed against the Customs and Border Protection officers and Border Patrol agents. He worked as a pool plasterer.

He had five children, all U.S. citizens, ranging in age from 7 to 23.

"They miss their father very much," said his wife, Maria Puga. "It's been very difficult. It's been very hard, psychologically, for them to understand. They still say, 'I want my dad, I want my papito.' "

The incident began after the Border Patrol caught Hernandez Rojas trying to re-enter the U.S. illegally to rejoin his family after being deported.

He was carrying a jug of water as he was taken to a Border Patrol station. A Border Patrol agent told him to put the water in the trash.

Instead of throwing out the jug, Hernandez Rojas poured the water into a trash can, according to the lawsuit.

The agent then slapped the jug out of his hands, pushed Hernandez Rojas against a wall and kicked his legs apart, injuring one of his ankles, according to the complaint.

When Hernandez Rojas asked why he was being mistreated, Border Patrol agents decided to send him back to Mexico immediately, rather than give him time to make a formal complaint, the lawsuit said.

Hernandez Rojas was taken to the San Ysidro port of entry to be sent back to Mexico. That is where the situation turned.

In the incident report they filed, Customs and Border Protection agents said Hernandez Rojas was violent and aggressive, kicking and screaming at agents. He continued to be combative even as an officer shocked him with a stun gun repeatedly — until agents noticed he was "unresponsive," they said.

An autopsy showed Hernandez Rojas died of brain damage and a heart attack as the result of being beaten and shocked multiple times with a stun gun. The autopsy also found traces of methamphetamine in his system, which the autopsy noted also may have contributed to his death.

The incident happened at about 8 p.m. on a Friday, under a pedestrian bridge crowded with people crossing back and forth between San Ysidro, Calif., and Tijuana, Mexico, the busiest border crossing in the world.

Many of the witnesses stopped to shoot videos on their cellphones. One man on the Mexican side shot a cellphone video, too dark to see, but with audio in which Hernandez can be heard begging for help and crying for agents to stop.

Then, a year and a half later, another witness, Ashley Young, agreed to share a cellphone video she shot at the time with lawyers for Hernandez Rojas' family and with Frey, the documentary filmmaker.

Young said in an e-mail that she didn't share the video earlier because she was reluctant to get involved for personal reasons and was scared the public might have a negative reaction though that didn't happen.

She said the FBI interviewed her after the video aired and then she testified in front of a federal grand jury.

Young's video shows Hernandez Rojas lying face down on the ground, hands cuffed behind his back, surrounded by more than a dozen Customs and Border Protection officers. On the video, the electric sparks from the stun gun can be seen flashing as Hernandez Rojas is shocked repeatedly.

In response to the PBS documentary, which included footage from Young's video, 16 members of Congress, including Rep. Raúl Grijalva, D-Ariz., wrote a letter to Janet Napolitano, then-secretary of the Department of Homeland Security, demanding a full investigation.

That prompted the department's Office of Inspector General to conduct a general review of allegations of excessive use of force. But the report, issued in September, did not specifically examine the Hernandez Rojas case.

Grijalva said he is concerned that the Hernandez Rojas case has fallen by the wayside.

"I think there's been, unfortunately, an acceptance that regardless" of what happened to Hernandez Rojas, his death "was somehow justified," Grijalva said. Political rhetoric about the need to secure the border has fueled that acceptance, but the rhetoric makes it difficult to raise questions about federal border agents' possible civil-rights abuses.

"The acceptance goes along with the whole drum-beating and spinning and talking we've had about border security and 'We need to seal the border.' It all kind of folds in," Grijalva said. "So, there is a horrible consequence: those deaths (such as Hernandez Rojas and others) that are questionable. When you ask a question, you get into a position — 'Oh, you are against Homeland Security? You are against the Border Patrol? You are against securing the border? You are against fighting terrorism?'"

Public outcry

The videos became huge news in Mexico, said Victor Clark Alfaro, director of the Binational Center for Human Rights in Tijuana. He helped organize a protest in Tijuana against the death.

"It was front-page news every day for several days," Clark Alfaro said. The video and audio also were aired repeatedly on TV and radio in Mexico.

As a result of the news coverage, people in Mexico were outraged, Clark Alfaro said.

"They were angry and sad and blaming the American authorities," he said. "But in the end, there was this feeling that there would be no justice on the American side."

Then-President Felipe Calderón of Mexico also demanded that the United States conduct an investigation and punish those responsible.

In contrast, Clark Alfaro said he is surprised at how many Americans remain unaware or indifferent about the death of Hernandez Rojas.

"Anastacio was Mexican. It happened on the border only a few meters from Tijuana," he said. "If instead of Anastacio, we had a blond U.S. citizen, probably it would have been different. It would have been a scandal."

Frey, the filmmaker, puts it another way.

"What if a Mexican government official shot and killed a U.S. citizen?" Frey said. "I think we'd have tanks down on the border."


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