Today marks the 13-year anniversary of the death of Anastasio Hernández Rojas, who was tortured and killed by U.S. border agents in San Ysidro in 2010. This past week also marks the anniversary of the killing of George Floyd by Minneapolis police in 2020. According to the Mapping Police Violence project, local and state law enforcement officers in this country kill more than 1,000 people a year, including in San Diego, and last year was the deadliest in ten years. These figures don’t even include the more than 50 people who die each year during encounters with border agents — people like Anastasio whose family seeks justice in a landmark case.
In the United States, never has a Border Patrol agent been convicted for someone’s death and only a handful of local and state law enforcement officers have ever been convicted for a killing. This is because the standard for “use of force” is so low.
What is the use of force standard in the United States?
Essentially, law enforcement can legally use force — such as physical restraints, tasers, tear gas, bean-bag guns, rubber bullets, and firearms etc. — on anyone as long as the force is considered to be “objectively reasonable”. But what is reasonable is based on the perception of the officer. It centers the officer, not the life at risk.
In the case of Anastasio Hernández Rojas, border agents claimed that it was “reasonable” to beat, tase, and torture him while he lay prone on the ground face down, hogtied and handcuffed. Anastasio died from the injuries he suffered at the hands of agents, but not one of the agents has been held accountable, namely because the use of force standard is so low and falls far short of the international human rights standard.
What is the international human rights standard for use of force?
The international human rights standard for force is “necessary and proportionate,” which prioritizes the protection of life. This means that law enforcement should respond to situations with only the force that is necessary and proportionate under the circumstances. So when Ferguson police shot and killed Michael Brown, the question that should have been asked was this: Was the police shooting of Brown for not moving onto the sidewalk as asked by the police a necessary and proportionate response? The answer to that would have been No. Instead the question asked was whether it was objectively reasonable in the eyes of the officer. In a police department plagued with racism, the answer was Yes.
The question matters. To change the question, we need to change the standard.
The international human rights standard sets the bar higher than the current U.S. “objectively reasonable” standard. If the United States adopted the “necessary and proportionate” standard, lethal force would be the last resort, not the first, and there would likely be fewer people harmed and killed. That is worth fighting for. Changing the standard would allow us, the community, to better hold law enforcement accountable for any abuse of power, creating a more fair and just system.
The “necessary and proportionate” standard is derived from the Universal Declaration of Human Rights — a historic proclamation of fundamental rights signed by the world of nations in 1948. This standard is also found in the international agreements that interpret the Universal Declaration of Human Rights, like the International Covenant on Civil and Political Rights (ICCPR) and the American Declaration of the Rights and Duties of Man.
So how can we change the current use of force standard from “objectively reasonable” to “necessary and proportionate” in order to protect life and align with international human rights standards? We have some ideas.
What can I do to bring about change?
This year, on December 10th, the world will mark the 75th year anniversary of the signing of the Universal Declaration of Human Rights. In advance of this anniversary, as part of the global Human Rights 75 Initiative, we will be calling on the United States to pledge to fully protect the human rights of all people. That begins by changing the use of force standard.
In a few weeks, we will be launching a campaign to gather 75,000 signatures in support of this call to action. It will take all of us calling for change.
Can we count on you to sign the petition and share it with your friends? Let us know and you will be the first to get the petition!