Family of Tohono O'odham man killed by Border Patrol agents to sue federal government

The family of a Tohono O’odham man shot and killed by U.S. Border Patrol agents in May has filed a notice of claim — a precursor to a federal lawsuit — attorneys announced Friday.

During a press conference just outside the U.S. District Court in Downtown Tucson, attorney Ryan Stitt said Border Patrol agents shot 58-year-old Raymond Mattia “without justification.”

“They murdered him in his front yard,” Stitt said. “The agents aggressively approached Raymond’s home and sought to escalate the encounter from inception,” he said, adding Mattia “posed no threat to the agents and he complied with their plans.”

“His compliance was met with a hail of gunfire that shattered and otherwise quiet desert evening,” Stitt said.

In June, U.S. Customs and Border Protection released body-cam footage from the May 18 incident, which showed a confusing situation near the village of Menager’s Dam, as multiple Border Patrol agents barked out commands demanding Mattia show his hands before three agents unleashed a salvo of gunfire.

After an investigation, the U.S. Attorney’s Office said last month they would not charge the three BP agents who shot Mattia. The announcement prompted sharp criticism from the tribe, including Verlon Jose, the chairman of the Tohono O’odham Nation.

“The facts speak for themselves, and they do not support the U.S. Attorney’s decision — Mr. Mattia was an unarmed man in his own front yard,” said Jose in a statement released last month. “Multiple agents made the decision to fire dozens of shots at short range at this unarmed man, hitting Raymond Mattia multiple times, and ultimately killing him. All of this was captured on agents’ video cameras and is not in question.”

“Where in America is a decision in defiance of such overwhelming evidence acceptable?  Where in America is it OK for law enforcement officials, or anyone else, to take an unarmed man’s life?” Jose asked.

Stitt and Tim Scott—both attorneys with Stitt Vu, a firm based in San Diego—said they sent a notice of claim via certified mail to the federal government, announcing the family intended to sue the agency for wrongful death and civil rights violations for the killing. 

In the letter sent to the U.S. Attorney’s Office, CBP and the Border Patrol’s station in Ajo, the attorneys said they were filing a federal tort claim against CBP for the “wrongful death of Raymond Mattia.”

“Contrary to the objective lack of urgency and imminent harm to anyone, the CBP agents acted aggressively and eventually approached Raymond Mattia’s home. Agents ordered Mr. Mattia out of his house and he walked out of the front of his home carrying a sheathed hunting knife,” they wrote. “When directed by the CBP agents, he tossed the knife toward them in a non-threatening and compliant manner.”

Moments before he was shot and killed, Mattia tossed a sheathed machete
to the feet of a Tohono O’odham police officer. Seconds later, the three
Border Patrol agents fired their service weapons, killing him outside
his home.

“The CBP agents responded to Mr. Mattia’s compliant and non-threatening behavior by acting in a highly aggressive fashion and drew their weapons,” they wrote. While Mattia was following directions and agents are trained to deescalate situations, they “unnecessarily escalated the encounter at every turn.”

When agents told the man to remove his hand from his pocket, he did so and agents fired 38 shots, hitting him multiple times. In his hand was a cellphone, which dropped to the ground.

Video leaves ‘many unanswered questions’

Mattia’s family seek to “recover a measure of what was wrongfully taken from them,” the attorneys wrote. “They collectively hope that public recognition of Mr. Mattia’s wrongful death and the terrible mistakes made by the agents will serve to rebuild trust in law enforcement and deter future similar actions.” 

“CBP’s unjustified killing of Mr. Mattia violated Arizona assault, battery and wrongful death laws, and the agents’ actions further violated the United States Constitution by using excessive force, improperly seizing him by ordering him out of his home and pointing guns at him without cause.”

“His death is a great loss to his children, family and friends,” said Yvone Nevarez, one of Mattia’s nieces. “The edited video released by CBP supporting their justification for shooting leaves a great many unanswered questions. “We as Raymond’s family want and deserve answers about what happened. We stand firm in our belief Ray was approached with excessive and deadly force. Ray was a peaceful loving member of his community and family, but the agents treated him as a threat.”

“When the agents ordered him to take the time out of his pocket he did so only to be shot at many times,” Navarez said. “Not only were the human rights of Ray violated, but also the rights of everyone who knew and loved him. You cannot justify shooting an unarmed man in his front yard while following directions.”

She described Mattia’s injuries, including gunshot wounds, lacerations and shrapnel from at least nine shots. “The human rights of our people are diminished if Border Patrol and CBP can get away with doing this.”

Scott called the body-cam footage released by CBP in June and “edited series of clips,” and said the agency had only released a “selective portion of those.” 

“They’ve also edited the audio content at different places,” he said. “And, you know, it’s clear to us that they’ve done that in an effort to present a narrative that’s most favorable,” he said, to the goal of showing the agents acted justly. “I think, even taking the edited body-camera footage that they’ve released, I think there’s clear wrongdoing on the part of the agents.” 

“I think we’ve all seen the video are all rightly outraged by it,” he said. “And to the extent that they needed to edit it more, to make it acceptable and then they failed to do so.”

On Wednesday, Stitt sent a letter to Rui Wang, the head of the
criminal division at the U.S. Attorney’s Office in Arizona, asking her to
attend the press conference.

“Given the fact that you were
in charge of the criminal investigation into the agents responsible for
his killing, I would like to offer you a second opportunity to address
his family,” Stitt wrote. “During our prior meeting, you were unwilling
to answer questions about the government’s investigation beyond the
press release issued by CBP; this is an opportunity to engage anew with
Mr. Mattia’s family and to help them better understand what led to the
killing of their beloved family member. ” 

“As I am sure you
are aware, Mr. Mattia’s murder has sparked intense scrutiny from members
of the Tohono O’odham Nation as well as the general public. Mr.
Mattia’s family has serious concerns about the facts that led to his
death, and I hope you agree that the gravity of the incident merits your
participation on Friday,” he wrote.

Gary Restaino, the U.S. attorney for Arizona, declined this invitation in a letter Thursday.

He said prosecutors and victim advocates from his office and the FBI met with the family in Sells in mid-September. During the two-hour meeting, prosecutors described their investigation into the shooting, as well as their conclusion the agents’ use of force “does not rise to the level of a federal criminal civil rights violation or a criminal violation under assimilated Arizona law.”

“We expect our prosecutors and agents to investigate civil rights cases, even when the subjects of those investigations are law enforcement officers,” Restaino wrote. “We understand that our conclusion was not what you or Mr. Mattia’s family wanted to hear, but I believe it was important for us to say it directly to you, and I appreciate your willingness to hear it from us in person.”

“The Department of Justice does not plan to hold the agents accountable,” Stitt said, adding the Justice Department will “not even honor the family’s rights as victims of crime to answer basic questions about what led Raymond’s death.”

“We invited the Department of Justice to appear with the family today, but they’re not present, obviously. They’ve chosen to remain silent in protection of the agents who killed Ray and in defiance of their obligation to the public to truthfully answer the questions about what led to his death,” Stitt said. “Unlike the Department of Justice, we will not remain silent as condemn the outrageous decision to not hold the officers to account.”

“We delivered our formal notice to Customs and Border Protection of our intent to sue them and it is up to them now to decide how to respond,” he said. “We hope that they accept responsibility and that they work with the family to seek adjust results. If they will not. We will continue forward in court and hold them accountable for their actions.”

Mattia described as artist

Ophelia Rivas, a resident of Menegar’s Dam, said around 500 people live in the village, largely young children. She lived within a few hundred feet of Mattia’s home, and described him as an artist in the tight-knit community.

“We hear everything that goes on, especially back in the old days when they didn’t have electricity. You could hear the neighbors you know, and now there’s electricity and all this technology going on, but I can still hear the young guys over there practicing their guitars,” Rivas told the Sentinel on Friday.

She also said members of the tribe in the area regularly asked for tribal police who were from the nation, and spoke the language. She said the officer who arrived that fateful night with Border Patrol regularly “harassed” members of the tribe. 

“Because this man that was involved in the shooting, he was harassing the people,” Rivas said. “I would think if you ask the community, everybody will have a story about this man that was a part of the shooting.” 

She said the TOPD officer regularly said Mattia had firearms in his home, but Rivas said he only had a rifle for ceremonial hunting. Most of what was in his home were tools for making pottery, she said. 

As agents head to village, agents told Mattia had ‘access’ to rifle

In the 28-minute video, the agency included footage from the three BP agents who fired their weapons, as well as a recording from a fourth agent, which shows agents meeting up with an unnamed TOPD officer minutes before the shooting. The agents were asked to back up TOPD after the agency received at least three calls that someone had fired a weapon in the area.

In the clip, the TOPD officer warned agents that the person they are seeking has “access” to a rifle. The names of the agents were beeped out, and the officer and agents’ faces were digitally redacted.

The video also includes an audio recording from the Tohono O’odham Police Department. In the call, a dispatcher asked BP agents to go to a nearby recreation center and backup at TOPD officer heading to Mattia’s home after the agency received multiple calls that someone had fired a gun nearby.

It remains unclear whether other agents had body-worn cameras, but at least 10 BP agents were involved in the fatal incident. One video includes complete audio of the incident, however, the other videos do not include audio until after the shooting because the body-worn cameras are designed to record the two minutes of video captured immediately before they are activated. After firing on Mattia, two agents tapped on their cameras to activate them.

CBP officials cautioned that the cameras “provide a general view,” but the “camera angle prevents viewers from seeing everything the agent or officer saw and experienced.”

After Mattia collapsed and rolled onto his stomach, agents insisted there was a weapon, but only his cell phone and cell phone case were found nearby.

An autopsy completed by the Pima County Medical Examiner and released in June showed Mattia suffered nine gun shots, including wounds to his right shoulder, his abdomen, left flank and back, as well as both arms and legs.

The agency ruled Mattia’s death a homicide, but said the determination doesn’t imply criminal intent, nor does the report draw a legal conclusion.

A toxicology report accompanying the autopsy showed multiple drugs were in Mattia’s bloodstream, including methamphetamine, alcohol, amphetamine and oxycodone. Mattia’s blood-alcohol level was 0.185 percent, more than twice the legal limit in Arizona, which is just 0.08 percent. A blood test also showed a significant level of methamphetamine in his bloodstream.

CBP released the video a month after the shooting, one of just a few times the agency has released footage from body-worn cameras since they were deployed in 2020.

Supreme Court decision adds difficulty

After the press conference Friday, a small group of supporters stood along West Congress Street with signs. Among the supporters were Araceli Rodriguez and Taide Rodriguez—the mother and grandmother of Jose Antonio Elena Rodriguez, a 16-year-old boy who was killed by a U.S. Border Patrol agent in a cross-border shooting in 2012.

For several years, the boy’s family fought to sue Lonnie Swartz, the former Border Patrol agent and the federal government for the teen’s slaying, but ultimately, the U.S. Supreme Court rejected another case along similar lines, effectively swamping their lawsuit. Meanwhile, two separate juries refused to convict Swartz during two federal murder trials.

The road to a lawsuit against federal agents has only increased in difficulty after the Supreme Court ruled last year people cannot sue Border Patrol agents engaged their duties for First Amendment retaliation claims or for alleged excessive force. The decision helped unmoore claims made under Bivens—named for a case involving U.S. Immigration and Customs Enforcement agents—against individual agents.

As NBC News reporter Lawrence Hurley noted, “in the year after the Egbert ruling, judges tossed more than a dozen lawsuits in which CBP or ICE officers were defendants accused of violating constitutional rights. 15 out of 16 claims were dismissed,” by lower courts. “Without Bivens claims, one of the only options is to file a tort claim against the federal government, but there is a lack of individual accountability, and no chance of a jury trial & bumper damages, lawyers point out.”

Scott acknowledged the Supreme Court’s decision in response to questions.

“So the Supreme Court’s decision recently has dramatically restricted plaintiffs abilities like the Mattia family to file a federal civil rights lawsuit for constitutional violations is the agents under a case of Bivens that means that the Mattia family has more limited options to hold the agents accountable. And it means that it will be more difficult for us—candidly speaking— in court,” Scott said. 

“We understand those realities. We’re certainly familiar with the legal landscape that’s before us and understanding all of those hurdles that will come before as we’re undeterred,” he said. “We’re unbound by those challenges, and we’ll press forward and take them in turn.”