Former internal affairs chief criticizes Border Patrol training

Posted at 2:32 PM, Dec 09, 2016
and last updated 2016-12-09 16:47:53-05

The former head of internal affairs at U.S. Customs and Border Protection says in a Supreme Court filing that an agent who killed a Mexican teen in a cross-border shooting should be held accountable.

James Tomsheck said in a brief submitted Friday that poor screening and inadequate training has resulted in an environment in which Border Patrol agents use unnecessary lethal force.

Tomsheck was the assistant commissioner of the CBP Office of Internal Affairs from June 2006 to June 2014, overseeing use-of-force investigations.

The brief was filed in the Supreme Court case involving an agent who fatally shot 15-year-old Sergio Adrian Hernandez Guereca in 2010. A lower court ruled that the boy's family couldn't sue because he was in Mexico at the time of the shooting and wasn't constitutionally protected.

A spokesman for CBP said the agency does not comment on pending litigation.

"As security along the border has increased, criminal organizations seeking inroads into the United States have attempted to infiltrate the Border Patrol. And pre-hiring screening programs have been inadequate, leading the Border Patrol in some instances to hire actual cartel members as agents," the brief, which also includes Tomscheck's second-in-command, James Wong, states.

Tomscheck says in the brief that the agency has become increasingly militarized.

"Combined with inadequate field training on appropriate uses of force, these factors have led to an environment in which Border Patrol agents have unnecessarily employed lethal force on the U.S.-Mexico border," the brief states.

Tomscheck was removed from his post in June 2014 amid concerns about use-of-force investigations of Border Patrol agents. He has been vocal in his criticism of the way the agency handles investigations.

The Supreme Court in October agreed to hear an appeal from Hernandez Guereca's family that challenges the rights of people who are harmed by U.S. authorities on foreign soil to have their day in court.

A federal appeals court earlier had ruled that the teen's parents couldn't sue because the teen was on foreign soil. U.S. Border Patrol agent Jesus Mesa Jr. shot him in June 2010 near a bridge between El Paso, Texas, and Ciudad Juarez, Chihuahua. Authorities said Mesa was trying to arrest immigrants who had illegally crossed into the country when he was attacked by rock-throwers. Mesa fired his weapon.

The justices stepped into the case in October.

The Obama administration, while calling the death tragic, had urged the justices to stay out of the case.

The case parallels one from Nogales, Mexico, in which a Border Patrol agent assigned in Arizona fatally shot a 16-year-old boy through the border fence.

Agent Lonnie Swartz was charged with second-degree murder for the shooting death of Jose Antonio Elena Rodriguez, who was hit about 10 times by cross-border gunfire.

The Border Patrol has said Swartz was defending himself against the rock-throwers.

The boy's family says Elena Rodriguez was not involved and was walking home after playing basketball with friends.

Swartz is on leave and his trial is pending.

Swartz is also facing a civil rights lawsuit filed by the ACLU on behalf of Elena Rodriguez's mother. The suit does detail what damages the family is seeking.

Swartz's attorney and the government argue that Elena Rodriguez was not constitutionally protected because he was a Mexican on foreign soil without any ties to the U.S. The 9th U.S. Circuit Court of Appeals heard arguments in the case in October but said it wouldn't issue a ruling until the Supreme Court made a decision in the Hernandez Guereca case.

The high court is expected to hear that case in February or March.