Household of Tohono O'odham man killed by Border Patrol brokers to sue federal authorities

The household of a Tohono O’odham man shot and killed by U.S. Border Patrol brokers in Could has filed a discover of declare — a precursor to a federal lawsuit — attorneys introduced Friday.

Throughout a press convention simply exterior the U.S. District Court docket in Downtown Tucson, legal professional Ryan Stitt mentioned Border Patrol brokers shot 58-year-old Raymond Mattia “with out justification.”

“They murdered him in his entrance yard,” Stitt mentioned. “The brokers aggressively approached Raymond’s house and sought to escalate the encounter from inception,” he mentioned, including Mattia “posed no menace to the brokers and he complied with their plans.”

“His compliance was met with a hail of gunfire that shattered and in any other case quiet desert night,” Stitt mentioned.

In June, U.S. Customs and Border Safety launched body-cam footage from the Could 18 incident, which confirmed a complicated scenario close to the village of Menager’s Dam, as a number of Border Patrol brokers barked out instructions demanding Mattia present his fingers earlier than three brokers unleashed a salvo of gunfire.

After an investigation, the U.S. Legal professional’s Workplace mentioned final month they might not cost the three BP brokers who shot Mattia. The announcement prompted sharp criticism from the tribe, together with Verlon Jose, the chairman of the Tohono O’odham Nation.

“The details communicate for themselves, and they don’t assist the U.S. Legal professional’s determination — Mr. Mattia was an unarmed man in his personal entrance yard,” mentioned Jose in a press release launched final month. “A number of brokers made the choice to fireside dozens of photographs at brief vary at this unarmed man, hitting Raymond Mattia a number of instances, and finally killing him. All of this was captured on brokers’ video cameras and isn’t in query.”

“The place in America is a call in defiance of such overwhelming proof acceptable?  The place in America is it OK for legislation enforcement officers, or anybody else, to take an unarmed man’s life?” Jose requested.

Stitt and Tim Scott—each attorneys with Stitt Vu, a agency based mostly in San Diego—mentioned they despatched a discover of declare through licensed mail to the federal authorities, saying the household meant to sue the company for wrongful dying and civil rights violations for the killing. 

Within the letter despatched to the U.S. Legal professional’s Workplace, CBP and the Border Patrol’s station in Ajo, the attorneys mentioned they have been submitting a federal tort declare in opposition to CBP for the “wrongful dying of Raymond Mattia.”

“Opposite to the target lack of urgency and imminent hurt to anybody, the CBP brokers acted aggressively and finally approached Raymond Mattia’s house. Brokers ordered Mr. Mattia out of his home and he walked out of the entrance of his house carrying a sheathed looking knife,” they wrote. “When directed by the CBP brokers, he tossed the knife towards them in a non-threatening and compliant method.”

Moments earlier than he was shot and killed, Mattia tossed a sheathed machete
to the toes of a Tohono O’odham police officer. Seconds later, the three
Border Patrol brokers fired their service weapons, killing him exterior
his house.

“The CBP brokers responded to Mr. Mattia’s compliant and non-threatening habits by performing in a extremely aggressive trend and drew their weapons,” they wrote. Whereas Mattia was following instructions and brokers are educated to deescalate conditions, they “unnecessarily escalated the encounter at each flip.”

When brokers informed the person to take away his hand from his pocket, he did so and brokers fired 38 photographs, hitting him a number of instances. In his hand was a cellphone, which dropped to the bottom.

Video leaves ‘many unanswered questions’

Mattia’s household search to “get well a measure of what was wrongfully taken from them,” the attorneys wrote. “They collectively hope that public recognition of Mr. Mattia’s wrongful dying and the horrible errors made by the brokers will serve to rebuild belief in legislation enforcement and deter future comparable actions.” 

“CBP’s unjustified killing of Mr. Mattia violated Arizona assault, battery and wrongful dying legal guidelines, and the brokers’ actions additional violated the USA Structure through the use of extreme pressure, improperly seizing him by ordering him out of his house and pointing weapons at him with out trigger.”

“His dying is a good loss to his youngsters, household and pals,” mentioned Yvone Nevarez, one among Mattia’s nieces. “The edited video launched by CBP supporting their justification for taking pictures leaves a terrific many unanswered questions. “We as Raymond’s household need and deserve solutions about what occurred. We stand agency in our perception Ray was approached with extreme and lethal pressure. Ray was a peaceable loving member of his neighborhood and household, however the brokers handled him as a menace.”

“When the brokers ordered him to take the trip of his pocket he did so solely to be shot at many instances,” Navarez mentioned. “Not solely have been the human rights of Ray violated, but additionally the rights of everybody who knew and liked him. You can’t justify taking pictures an unarmed man in his entrance yard whereas following instructions.”

She described Mattia’s accidents, together with gunshot wounds, lacerations and shrapnel from a minimum of 9 photographs. “The human rights of our persons are diminished if Border Patrol and CBP can get away with doing this.”

Scott known as the body-cam footage launched by CBP in June and “edited sequence of clips,” and mentioned the company had solely launched a “selective portion of these.” 

“They’ve additionally edited the audio content material at completely different locations,” he mentioned. “And, you already know, it is clear to us that they’ve executed that in an effort to current a story that is most favorable,” he mentioned, to the objective of displaying the brokers acted justly. “I feel, even taking the edited body-camera footage that they’ve launched, I feel there’s clear wrongdoing on the a part of the brokers.” 

“I feel we have all seen the video are all rightly outraged by it,” he mentioned. “And to the extent that they wanted to edit it extra, to make it acceptable after which they failed to take action.”

On Wednesday, Stitt despatched a letter to Rui Wang, the pinnacle of the
felony division on the U.S. Legal professional’s Workplace in Arizona, asking her to
attend the press convention.

“Given the truth that you have been
accountable for the felony investigation into the brokers accountable for
his killing, I wish to give you a second alternative to handle
his household,” Stitt wrote. “Throughout our prior assembly, you have been unwilling
to reply questions concerning the authorities’s investigation past the
press launch issued by CBP; this is a chance to have interaction anew with
Mr. Mattia’s household and to assist them higher perceive what led to the
killing of their beloved member of the family. ” 

“As I’m positive you
are conscious, Mr. Mattia’s homicide has sparked intense scrutiny from members
of the Tohono O’odham Nation in addition to most people. Mr.
Mattia’s household has critical considerations concerning the details that led to his
dying, and I hope you agree that the gravity of the incident deserves your
participation on Friday,” he wrote.

Gary Restaino, the U.S. legal professional for Arizona, declined this invitation in a letter Thursday.

He mentioned prosecutors and sufferer advocates from his workplace and the FBI met with the household in Sells in mid-September. Through the two-hour assembly, prosecutors described their investigation into the taking pictures, in addition to their conclusion the brokers’ use of pressure “doesn’t rise to the extent of a federal felony civil rights violation or a felony violation below assimilated Arizona legislation.”

“We anticipate our prosecutors and brokers to analyze civil rights instances, even when the themes of these investigations are legislation enforcement officers,” Restaino wrote. “We perceive that our conclusion was not what you or Mr. Mattia’s household wished to listen to, however I imagine it was necessary for us to say it on to you, and I recognize your willingness to listen to it from us in particular person.”

“The Division of Justice doesn’t plan to carry the brokers accountable,” Stitt mentioned, including the Justice Division will “not even honor the household’s rights as victims of crime to reply primary questions on what led Raymond’s dying.”

“We invited the Division of Justice to look with the household as we speak, however they are not current, clearly. They’ve chosen to stay silent in safety of the brokers who killed Ray and in defiance of their obligation to the general public to in truth reply the questions on what led to his dying,” Stitt mentioned. “In contrast to the Division of Justice, we won’t stay silent as condemn the outrageous determination to not maintain the officers to account.”

“We delivered our formal discover to Customs and Border Safety of our intent to sue them and it’s as much as them now to resolve the way to reply,” he mentioned. “We hope that they settle for duty and that they work with the household to hunt alter outcomes. If they won’t. We’ll proceed ahead in courtroom and maintain them accountable for his or her actions.”

Mattia described as artist

Ophelia Rivas, a resident of Menegar’s Dam, mentioned round 500 folks dwell within the village, largely younger youngsters. She lived inside a number of hundred toes of Mattia’s house, and described him as an artist within the tight-knit neighborhood.

“We hear every little thing that goes on, particularly again within the outdated days once they did not have electrical energy. You may hear the neighbors you already know, and now there’s electrical energy and all this expertise happening, however I can nonetheless hear the younger guys over there training their guitars,” Rivas informed the Sentinel on Friday.

She additionally mentioned members of the tribe within the space repeatedly requested for tribal police who have been from the nation, and spoke the language. She mentioned the officer who arrived that fateful evening with Border Patrol repeatedly “harassed” members of the tribe. 

“As a result of this man that was concerned within the taking pictures, he was harassing the folks,” Rivas mentioned. “I’d suppose in case you ask the neighborhood, everyone may have a narrative about this man that was part of the taking pictures.” 

She mentioned the TOPD officer repeatedly mentioned Mattia had firearms in his house, however Rivas mentioned he solely had a rifle for ceremonial looking. Most of what was in his house have been instruments for making pottery, she mentioned. 

As brokers head to village, brokers informed Mattia had ‘entry’ to rifle

Within the 28-minute video, the company included footage from the three BP brokers who fired their weapons, in addition to a recording from a fourth agent, which reveals brokers assembly up with an unnamed TOPD officer minutes earlier than the taking pictures. The brokers have been requested to again up TOPD after the company acquired a minimum of three calls that somebody had fired a weapon within the space.

Within the clip, the TOPD officer warned brokers that the particular person they’re searching for has “entry” to a rifle. The names of the brokers have been beeped out, and the officer and brokers’ faces have been digitally redacted.

The video additionally contains an audio recording from the Tohono O’odham Police Division. Within the name, a dispatcher requested BP brokers to go to a close-by recreation middle and backup at TOPD officer heading to Mattia’s house after the company acquired a number of calls that somebody had fired a gun close by.

It stays unclear whether or not different brokers had body-worn cameras, however a minimum of 10 BP brokers have been concerned within the deadly incident. One video contains full audio of the incident, nonetheless, the opposite movies don’t embrace audio till after the taking pictures as a result of the body-worn cameras are designed to report the 2 minutes of video captured instantly earlier than they’re activated. After firing on Mattia, two brokers tapped on their cameras to activate them.

CBP officers cautioned that the cameras “present a basic view,” however the “digital camera angle prevents viewers from seeing every little thing the agent or officer noticed and skilled.”

After Mattia collapsed and rolled onto his abdomen, brokers insisted there was a weapon, however solely his cellphone and cellphone case have been discovered close by.

An post-mortem accomplished by the Pima County Medical Examiner and launched in June confirmed Mattia suffered 9 gun photographs, together with wounds to his proper shoulder, his stomach, left flank and again, in addition to each legs and arms.

The company dominated Mattia’s dying a murder, however mentioned the willpower would not indicate felony intent, nor does the report draw a authorized conclusion.

A toxicology report accompanying the post-mortem confirmed a number of medication have been in Mattia’s bloodstream, together with methamphetamine, alcohol, amphetamine and oxycodone. Mattia’s blood-alcohol degree was 0.185 %, greater than twice the authorized restrict in Arizona, which is simply 0.08 %. A blood check additionally confirmed a big degree of methamphetamine in his bloodstream.

CBP launched the video a month after the taking pictures, one among only a few instances the company has launched footage from body-worn cameras since they have been deployed in 2020.

Supreme Court docket determination provides problem

After the press convention Friday, a small group of supporters stood alongside West Congress Avenue with indicators. Among the many supporters have been Araceli Rodriguez and Taide Rodriguez—the mom and grandmother of Jose Antonio Elena Rodriguez, a 16-year-old boy who was killed by a U.S. Border Patrol agent in a cross-border taking pictures in 2012.

For a number of years, the boy’s household fought to sue Lonnie Swartz, the previous Border Patrol agent and the federal authorities for the teenager’s slaying, however finally, the U.S. Supreme Court docket rejected one other case alongside comparable traces, successfully swamping their lawsuit. In the meantime, two separate juries refused to convict Swartz throughout two federal homicide trials.

The street to a lawsuit in opposition to federal brokers has solely elevated in problem after the Supreme Court docket dominated final yr folks can not sue Border Patrol brokers engaged their duties for First Modification retaliation claims or for alleged extreme pressure. The choice helped unmoore claims made below Bivens—named for a case involving U.S. Immigration and Customs Enforcement brokers—in opposition to particular person brokers.

As NBC Information reporter Lawrence Hurley noted, “within the yr after the Egbert ruling, judges tossed greater than a dozen lawsuits wherein CBP or ICE officers have been defendants accused of violating constitutional rights. 15 out of 16 claims have been dismissed,” by decrease courts. “With out Bivens claims, one of many solely choices is to file a tort declare in opposition to the federal authorities, however there’s a lack of particular person accountability, and no likelihood of a jury trial & bumper damages, attorneys level out.”

Scott acknowledged the Supreme Court docket’s determination in response to questions.

“So the Supreme Court docket’s determination lately has dramatically restricted plaintiffs talents just like the Mattia household to file a federal civil rights lawsuit for constitutional violations is the brokers below a case of Bivens that implies that the Mattia household has extra restricted choices to carry the brokers accountable. And it implies that will probably be harder for us—candidly talking— in courtroom,” Scott mentioned. 

“We perceive these realities. We’re definitely conversant in the authorized panorama that is earlier than us and understanding all of these hurdles that may come earlier than as we’re undeterred,” he mentioned. “We’re unbound by these challenges, and we’ll press ahead and take them in flip.”