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28 Berkeley La Raza L.J. 1 (2018)

handle is hein.journals/berklarlj28 and id is 1 raw text is: U.S. BORDER PATROL'S POLICY OF EXTRAJUDICIAL KILLING Steve D. Shadowen* INTRODUCTION ....................................... ................ 1 I. U.S. POLICY PERMITTED BORDER PATROL AGENTS TO TREAT THE THROWING OF ROCKS AT THEM AS PER SE DEADLY FORCE. ........................................................... 4 A. The Unlawful Policy....................................... 5 B. The End of the Policy?.......................................7 II. INTERNATIONAL LAW APPLIES THE IMMINENT-PERIL STANDARD TO POLICE USE OF LETHAL FORCE...................8 III. ABSENT IMMINENT PERIL, POLICE USE OF LETHAL FORCE VIOLATES THE JUS COGENS NORM AGAINST EXTRAJUDICIAL KILLING. ...................... .............10 A. The Prohibition Against Extrajudicial Killing Is a Jus Cogens Norm ...................................... ............. 10 B. Police Use of Lethal Force, Absent Imminent Peril, Constitutes Extrajudicial Killing. .............1.........................1 C. Police Use of Lethal Force Against Rock-Throwers, Absent Imminent Peril, Constitutes Extrajudicial Killing................... 12 IV. THE U.S. POLICY PERMITTING USE OF LETHAL FORCE AGAINST ROCK-THROWERS VIOLATED JUS COGENS. ...... .............15 CONCLUSION ............................................... ..... 17 INTRODUCTION From 2005 through March 2014, United States Border Patrol (Border Patrol) agents killed at least forty-four people along the nation's southern border.' Many of the victims were undocumented Mexican nationals who were shot by agents for DOI: https://doi.org/10.15779/Z38KS6J48B * Steve Shadowen is a founding partner of Hilliard & Shadowen LLP. He represents the families of a number of Mexican nationals who were killed by U.S. Border Patrol agents along the southern border. Many thanks to Matt Weiner, Frazier Thomas, Nick Shadowen, and Jako Garos for excellent research assistance. This article benefited substantially from the research and analysis reflected in the Robert F. Kennedy Human Rights Global Justice Clinic, et al., Inter-American Commission on Human Rights, Written Submission in Support of the Thematic Hearing on Excessive Use of Force by the Police against Black Americans in the United States (updated Feb. 12, 2016); Complaint, Family Members of Anastasio Hernandez-Rojas v. United States, Inter-American Commission on Human Rights (Mar. 2016); Jan Arno Hessbruegge, Human Rights and Personal Self-Defense in International Law (Oxford Univ. Press 2017); and Emily Schaeffer Omer-Man, Extrajudicial Killing with Near Impunity: Excessive Force in Israeli Law Enforcement against Palestinians, 35 B.U. INT'L L. J. 115 (2017). 1. Rob O'Dell & Daniel GonzAlez, Border Patrol Agent Pleads Not Guilty in Mexican Teen's 2012 Killing, ARiz. REPUBLIC (Oct. 10, 2015), http://www.azcentral.com/story/news/local/arizona/breaking /2015/10/09/arizona-border-patrol-agent-mexican-teen-killing-court- plea/73552962/.

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