Family of man killed by border agents in 2010 to receive $1 million

The U.S. government will pay $1 million to the family of an undocumented immigrant who died after a 2010 beating by border agents near San Diego that was caught on cellphone video.

The family and the government agreed to the settlement to end six years of litigation over the death of Anastacio Hernandez Rojas, 42, who died after being handcuffed by border agents, hit with batons and shocked with a stun gun.

The settlement requires approval by a judge in the case because some of the victim's children are minors. A hearing is scheduled for March 2.

Hernandez Rojas' killing was caught on video by eyewitnesses who protested the treatment.

RELATED: Deadly border agent incidents cloaked in silence

One agent ripped Hernandez Rojas' pants off and another shocked him with repeated blasts from a stun gun while Hernandez Rojas begged for someone to help him. He wailed in agony as eyewitnesses yelled at the agents, “Hey! He’s not resisting, guys. Why do you guys keep pressing on him?" the video showed.

An autopsy disclosed that Hernandez Rojas died of brain damage and a heart attack as the result of being beaten and shocked multiple times with a stun gun. The autopsy also found traces of methamphetamine in his system, which the autopsy noted might also have contributed to his death.

Settlement details

Hernandez Rojas' five children, all U.S. citizens, will split the settlement. Four of them will be paid $153,000 after attorney's fees, and the fifth will receive $68,000. The attorneys will receive $250,000, along with $70,000 for the costs of litigating the case.

"The amount of the settlement is at least is a recognition that there was substantial wrongdoing," said Eugene Iredale, the lawyer for the family. "Now is the time appropriate to resolve the case. The children who were 3 years old at the time Anastacio was killed at the border are now 10 years old. I didn't want them going into high school by the time this case is resolved."

Iredale said the case had been set to go to trial, but a ruling by the U.S. Supreme Court would have allowed another two to three years of delays in the case. Not wanting to continue the litigation, Iredale said the family accepted the $1 million settlement offer that the government put on the table more than two years ago.

"It is an index of the unfairness of the legal system when it comes to seeking justice for deaths that are perpetrated by government agents," Iredale said. "They managed to delay the case by six years. Anastacio died May 28, 2010. The case was filed early the next year."

The U.S. Attorney's Office in Phoenix, which was handling the case because of a conflict of interest in San Diego, declined to comment on the settlement. The Border Patrol union, the National Border Patrol Council, also did not return calls requesting comment.

Clash on the border

The 2010 incident began after Hernandez Rojas was caught by the Border Patrol trying to re-enter the U.S. illegally. He was trying to rejoin his wife after being deported several times previously.

Hernandez Rojas was carrying a jug of water as he was taken to a Border Patrol station. He was told by a Border Patrol agent to put the water in the trash.

Instead of throwing out the jug, Hernandez Rojas poured the water into a trash can, according to the lawsuit.

The agent then slapped the jug out of his hands, pushed Hernandez Rojas against a wall, and kicked his legs apart, injuring one of his ankles that had pins in it from a previous injury, the lawsuit said.

When Hernandez Rojas asked why he was being mistreated, Border Patrol agents decided to send him back to Mexico immediately, rather than give him time to make a formal complaint, the lawsuit said. He also was denied medical care.

Hernandez Rojas was taken to the San Ysidro port of entry to be sent back to Mexico. There, the situation turned.

An incident report filed by Customs and Border Protection agents described Hernandez Rojas as violent and aggressive, kicking and screaming at agents. The agents reported that he continued to be combative even as an officer shocked him with a stun gun repeatedly until they noticed he was “unresponsive.” The lawsuit said Rojas simply didn't put his hands on his head when agents commanded it after they removed his handcuffs.

Witnesses step forward with video

The incident happened at about 8 p.m. on a Friday under a pedestrian bridge crowded with people crossing back and forth between San Ysidro, Calif., and Tijuana, Mexico, the busiest border crossing in the world.

Many of the witnesses stopped to shoot videos on their cellphones. One man on the Mexican side shot a cellphone video too dark to see, but with audio in which Hernandez Rojas can be heard begging for help and crying for agents to stop.

A year and a half later, another witness agreed to share another cellphone video. It showed Hernandez Rojas face-down on the ground, hands cuffed behind his back, surrounded by more than a dozen CBP officers. On the video the electric sparks from the stun gun can be seen flashing as Hernandez Rojas is shocked repeatedly.

The video sparked an outcry and led members of Congress to call for an investigation.

The U.S. Justice Department declined in 2015 to prosecute any of the agents because prosecutors determined the "evidence was insufficient to pursue federal criminal civil-rights charges."

A news release by the Justice Department said the federal government "cannot disprove the agents' claim that they used reasonable force in an attempt to subdue and restrain a combative detainee."

The Justice Department also said it was unable to prove beyond a reasonable doubt that agents violated federal homicide statutes, and could not muster enough proof for manslaughter charges.

"Although positional restraint of Hernandez Rojas and electro-shocks from the Taser were contributory factors in this his death, there is no evidence that any of the federal agents deployed the taser or restrained Hernandez Rojas with malice," the Justice Department said.