Family of Tohono O'odham man killed by border agents plans to sue feds for damages

The family of a Tohono O'odham man shot and killed by border agents in May intends to file a wrongful-death claim against U.S. Customs and Border Protection, seeking $15 million in damages and answers to their questions.

Lawyers for the family of Raymond Mattia say they are pursuing justice through the only recourse available, since federal prosecutors declined to criminally prosecute the agents responsible for Mattia's death.

A 2022 Supreme Court ruling means the family can't sue individual agents for constitution rights violations, so a wrongful-death tort claim is the best avenue to hold the agents accountable, said Ryan Stitt, a San Diego-based attorney representing the family.

The family's notice of claim, sent to CBP by certified mail this week, says the family would accept an out-of-court settlement of $15 million in damages, as well as answers to questions investigators have refused to provide, Stitt said.

That includes "a public and fulsome account of exactly what happened, and a public review of CBP’s role in assisting local law enforcement in law enforcement duties outside the stated mission of CBP," the notice of claim states.

Investigators still have not answered "basic questions" asked by the Mattia family, including the identities of the agents who fired upon Mattia and whether the Tohono O'odham police officer on the scene also discharged his weapon, Stitt said. 

"They’ve refused wholesale to answer any questions related to precisely who the shooters were, other than what the CBP released in its press release," Stitt told the Arizona Daily Star. Department of Justice officials "have not been respectful to the family. They have not honored their obligations under the law to treat them as victims."

In September federal prosecutors informed Mattia's family of their decision not to bring charges against the agents who fired on Mattia, stating their criminal investigation found “agents’ use of force under the facts and circumstances presented in this case does not rise to the level of a federal criminal civil rights violation or a criminal violation assimilated under Arizona law,” Zachry Stoebe, public affairs officer with the U.S. Attorney’s Office for the District of Arizona, said in an Oct. 12 statement.

DOJ officials, including a victim advocate, met with Mattia's family for an hour, the statement said.

We decline to comment more specifically on the meeting between the family and the Department employees," the statement said. "Victims have an inherent right to speak with the press, and to criticize their government."

CBP officials did not immediately respond to a request for comment on Friday.

Lawyers for the family said they don't expect CBP will be willing to settle, nor provide the information the family demands. If that's the case, the family will follow through on filing the tort claim, Stitt said.

The plaintiffs listed in the notice of claim are Mattia's five siblings and two children.

"The family wants to know what happened," Stitt said. "We hope they (CBP) change their mind and if not, here we are," he said, gesturing to the U.S. District Courthouse behind him.

On Friday, Mattia's family and friends gathered outside the U.S. District Courthouse on Congress Street in downtown Tucson, holding signs and chanting "Justice for Ray."

Mattia's niece Lavida Valenzuela, 34, said her uncle helped to raise her as she grew up in Menagers Dam, a remote Tohono O'odham village about 140 miles southwest of Tucson. 

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"He was selfless," Valenzuela told the Star. "His family was his No. 1 priority."

Valenzuela and her family not only want justice for her uncle; they want CBP to change how it operates on sovereign tribal land.

"I hope Border Patrol stops thinking that they control everything. They don't," she said. "They're on our land. They're there to help us. But instead they're just destroying us even more. I hope something gets done about that."

Mattia's aunt Sally Johnston said her nephew always took special care to check on her and help her with anything she needed.

His presence made her feel "at peace. I felt safe," she said on Friday. "Every time I needed something, I would call him. And he didn't say, 'Well, maybe tomorrow.' He said, 'I'll be right there.' Other elders say the same thing" about Mattia.

Johnston said Mattia's absence is felt by many on the reservation. 

"We miss him," she said. "All I know is that he was not a criminal, not a killer, not a robber. He was a gentle man."

Mattia, 58, was unarmed when he was shot in front of his home on the reservation on May 18. That night, he had called law enforcement to report border-crossers on his property, his family said.

CBP said border agents were there in response to a request for assistance from the Tohono O’odham police who had received a report of gunfire in the area.

In a June news release CBP said three agents fired on Mattia, out of 10 agents present, and that there was one on-duty tribal policeman in the area that night.

Body-cam footage released by CBP shows Mattia illuminated by search lights in front of his home. He throws an object toward the agents after they ordered him to drop what was in his hand. The object was a machete still in its sheath, agents later learned. 

Mattia then appears to reach into his jacket and agents yell at him to remove his hand. As Mattia quickly does so, a volley of gunfire immediately follows and Mattia falls to the ground. 

An autopsy report from the Pima County Medical Examiners' Office showed Mattia had methamphetamine and alcohol in his system.

Mattia was complying with the agents' orders when he was shot, Stitt said.

"At every turn, the agents escalated the situation unnecessarily," he said.

Tohono O'odham Nation tribal leaders called the lack of charges in the fatal shooting “a travesty of justice,” in an Oct. 13 statement. 

“We cannot and will not accept the U.S. Attorney’s decision,” Tribal Chairman Verlon M. Jose and Vice Chairwoman Carla L. Johnson said in the joint statement. “We stand by the Mattia family, and all O’odham citizens in seeking justice. Members of the Tohono O’odham Nation should not have to worry that their lives could be randomly cut short by federal agents acting on Tohono O’odham sovereign land.”