Deadly Force at the Southern Border

Photo: WSJ

Much attention has been paid to the recent shooting death of a 15 year-old boy near the bridge linking Ciudad Juarez, Mexico, with El Paso, Texas. Many of us, upon reading the headlines or hearing the lede of the broadcast media were struck with a myriad of emotions: shock, regret, sadness. The age of the boy should elicit that response in anyone with a care for humanity, and the loss of one so young. It should.

The fact that he was shot by a US Border Patrol agent also raises a reflexive response in many. The United States’ immigration laws and enforcement practices are only eclipsed by the BP oil spill as the issue of the day, a political issue to be specific. The reflex among many is to immediately blame the US, law enforcement, or just the agent, for the death, and call it unjustified. The Mexican government has called it unjustified, and asked for an investigation. He was only throwing rocks, after all.

As most of you know, I have a bias toward law enforcement, having worked with them for many years, as I know that they are mostly hard-working, honest, and want to make difference in their communities. I also have a bias toward the rule of law, and against tyranny. That’s why when I read the initial circumstances of the reports, I am withholding judgment until all of the available facts are made known.

What do we know so far? Indisputable facts are that Sergio Adrian Hernández was shot by a US Federal agent, and he was throwing rocks. There is more, but those are the only important facts to this post. It leads to the question of whether deadly force was justified. That will come out.

My question is a generic one: Is a rock a deadly weapon? Specifically, a hurled rock?

This legal site seems to indicate yes. “An assault with a deadly weapon occurs when an individual is put in fear of bodily harm. The harm doesn’t actually have to occur, but if it does, the charge may be changed to assault and battery, which means contact occurred even if no injury did. A deadly weapon can obviously include firearms and knives, but even normally innocent objects, such as a bottle, a pencil, a rock, and a car, can be considered deadly weapons if they have the ability to cause harm. [Emphasis mine- Ed.] Even using an unloaded gun, because it causes fear, may fall into this category. Hands and feet are not usually deadly weapons, but kicking or biting an individual may be sufficient for a charge of assault with a deadly weapon because kicking and biting may cause serious bodily injury.”

A few other examples, in no particular order:

Tulelake teen charged with assault with a deadly weapon
A 19-year-old Tulelake man was charged with assault with a deadly weapon after allegedly throwing a rock at a vehicle, hitting a woman in the face and shoulder, a Siskiyou County Sheriff’s Office (SCSO) news release stated.

11 year old girl arrested on deadly weapon charge for throwing rock during water balloon fight
”Maribel was arrested in April for throwing the rock at a neighborhood boy who had pelted her with a water balloon. The rock gashed the boy´s forehead…”

Suspected shoplifter who threatened guard with rock arrested
Hector Cesar Lopez Olivarria was arrested on suspicion of robbery and assault with a deadly weapon Tuesday afternoon, Carlsbad police Lt. Paul Mendes said.

Prosecutors offer deal in rock attack
The source, who spoke on condition of anonymity, said some of the young men accused of throwing rocks at Stephen "Tanner" Hansen in July have been given a chance to plead guilty to a felony charge of battery with use of a deadly weapon causing substantial bodily harm.

So clearly, the law treats it that way – a rock can be a deadly weapon. That should be obvious to all, but it may not be, or the face may purposely ignored. Use of rocks as a weapon is as old as human history. It is probably the oldest weapon in use, and has been observed being used by primates as both a tool and weapon. In fact, death by stoning is a commonly prescribed punishment in some ancient cultures, and codified by law. Any disagreement here?

In the case of the Border Patrol, the question is whether it was justified under the circumstances at the time, something which only a thorough investigation will reveal. For some additional perspective, please review this Chronological Listing of Agents Killed in Line of Duty, and read the narratives.

I would also encourage you to watch this video.

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