Several questions remain unanswered days after officers drew their weapons in detaining a San Diego family at the border, in what the family said was a case of mistaken identity.
Cell phone video captured the encounter last Thursday at the San Ysidro Port of Entry. Joshua Durazo said his family was returning home from his cousin’s funeral and he had just handed over the paperwork when the officers drew their weapons and told everyone to get out of the vehicle.
The video shows officers instructing everyone – including two children and Durazo’s 75-year-old aunt – to step out one by one and walk backward with their hands in the air.
Get top local stories in San Diego delivered to you every morning. Sign up for NBC San Diego's News Headlines newsletter.
“It was terrible,” Durazo said. “Having to see, you know, the kids suffer, having to put their hands up, walk backward. Honestly, that's the hardest part.”
Durazo said they were each handcuffed and taken to a holding tank, where he learned the officers were looking for a Jorge Gonzalez, which is his cousin’s name, but also a common one. They were eventually released but Durazo said his family members – all legal, permanent U.S. residents — were traumatized.
Customs and Border Protection has not answered specific questions about the incident, including why the officers drew their weapons or if they opened an investigation into the incident.
“I have a problem that they haven't told you that there is an investigation that's going to happen, and that's going to happen immediately,” said civil rights lawyer Joseph McMullen.
McMullen was not involved in the case, but he’s represented several clients against CBP, recently winning a $1.5 million judgment for a 9-year-old girl agents falsely imprisoned for 34 hours at the same Port of Entry in 2019.
“Your rights don't go out the window just because you're crossing the border,” McMullen said. “We have rights. The Constitution applies to people at the border, and that includes the Fourth Amendment of the Constitution, which tells us that any search and seizure of us has to be reasonable.”
McMullen said the Supreme Court has broken up the rights at the border into routine and non-routine searches. For a routine border search, which McMullen said includes primary and secondary inspections while crossing, there doesn’t have to be any suspicion of wrongdoing to be temporarily detained and questioned.
“It's when a search or a seizure becomes non-routine that there needs to be a reason for it,” McMullen said. “And that reason is called reasonable suspicion. And those are specific, articulable factors that would reasonably lead an officer to suspect that this person has committed a crime.”
McMullen said that, without reasonable suspicion, agents cannot conduct a non-routine border search – though he added that there are no clear guidelines on what distinguishes the two, nor what constitutes “reasonable” suspicion.
“Reasonable is what we as a community decide is OK,” McMullen said. “We start to fall outside of that reasonableness when we are using force on people, when we're scaring folks for no reason, when we're doing things that don't have a legitimate law enforcement purpose.”
McMullen said the courts “have been very clear” that pointing a firearm at a person is considered a use of force.
“I'm very concerned, because when I see that a 75-year-old woman is walking backward with guns pointed at her, my first question is: Why?” McMullen said. “What is it that justifies that? Because that is not routine, and that requires quite a bit of suspicion that she is doing something wrong, doing something illegal, or that somehow she is a threat to the officer, to the officers that are there — an immediate threat, because that is a use of force.”
“It raises real questions about why they did this, and the justification for that level of force to be used needs to be something that is reasonable, and that, in my view, would have to be pretty darn compelling to do that to a child and to a 75-year-old woman,” McMullen added.
McMullen said CBP needs to save surveillance video of the incident, because he’s seen cases where it hasn’t been preserved, which presents a challenge to any sort of investigation.
“That is a big ask of the family to just take it on faith that Customs were doing the right thing,” McMullen said. “And I believe that given their track record, I don't know if they're entitled to all that faith.”
