A 26 year-old man shot by Immigration and Customs Enforcement during an arrest in Brooklyn earlier this month has filed a civil rights lawsuit against the agency, seeking monetary damages.
Erick Diaz Cruz was shot in the hand and face as ICE officers arrested his mother's boyfriend, Gaspar Avendaño Hernández. Both were unarmed.
The lawsuit claims Diaz Cruz, who was visiting his mother in Gravesend, woke up on February 6th to hear banging on the door, followed by screaming and crying on the street. He walked outside and saw two ICE officers struggling with Avendaño Hernández. Diaz Cruz walked toward Avendaño Hernández and saw an ICE officer reaching towards his hip. Believing it was pepper spray, Diaz Cruz covered his face with his left hand to protect his eyes.
That’s when the lawsuit states the officer, identified only as John Doe 1, pulled out a gun and pointed it to Diaz Cruz’s face and fired without any warning. A bullet tore through his left hand and then entered his cheek. He was treated at Maimonides Hospital in Brooklyn.
“He's very seriously injured,” said his attorney Katie Rosenfeld, a partner at Emery Celli Brinckerhoff & Abady. “He has multiple acute fractures to the bones in his face, he has fractures in his hand, he has damage to his sinus, he has vision loss to his eye, he has bullet fragments in his head. He has horrible scarring all over his face.”
She said the bullet remains lodged in his neck, because it’s too difficult to remove, and Diaz Cruz is currently staying with his mother while undergoing continued medical treatment.
Rosenfeld said the civil rights lawsuit seeks to hold ICE accountable for using unjustifiable force, in violation of Diaz Cruz’s constitutional rights.
A spokeswoman for ICE said the agency cannot comment on pending litigation.
On the day of the shooting, the agency said a member of its Fugitive Operations Team fired when officers were “physically attacked” while attempting to arrest Avendaño Hernández. It described him as “a twice-removed illegal alien from Mexico with a 2011 assault conviction in New York City.”
It went on to say the NYPD had arrested Avendano-Hernandez on February 3rd for possession of a forged instrument, a felony criminal charge, but that ICE was prevented from taking him into custody. “This forced ICE officers to locate him on the streets of New York rather than in the safe confines of a jail,” the statement continued.
The New York Times reported that Avendaño Hernández 33, had been arrested after being stopped for failing to signal a turn, driving without a license and improper license plates, according to court records.
The shooting became one of the latest flashpoints between ICE and New York City, which has a local law limiting cooperation with federal immigration agents. Last Friday, the Department of Homeland Security announced it would send elite tactical units to New York and other sanctuary cities to assist in enforcement.
Rosenfeld said her client is aware of the current political climate and that he filed the lawsuit to stand up for others under attack by ICE.
“This is not just an attack against me, but also an attack against the entire Latino community in the United States,” Diaz Cruz said in a press release.
Diaz Cruz is from Veracruz, Mexico where he works as an assistant to the mayor of Martinez de la Torre. At the time of the shooting, he was in Brooklyn for what was supposed to be a 2-week vacation with his girlfriend.
Meanwhile, his mother’s boyfriend, Avendaño Hernández, is represented by Make the Road New York. Spokeswoman Yatziri Tovar said he was injured by a stun gun during his arrest, and is still being held by ICE in New Jersey. She said he’s now seeking asylum and had a credible fear interview on Tuesday, the test that determines whether the can stay in the U.S. while pursuing his claim. He may then be eligible for bond.
But Tovar said Make the Road is calling for him to be released immediately “so that he can have followup medical care and so that he can also be with his family.”
She called on state and local authorities to investigate what happened. Diaz Cruz’s attorney said DHS attempted to interview the family on Wednesday in Brooklyn, but they declined until they could be joined by legal counsel.
Beth Fertig is a senior reporter covering immigration, courts, and legal affairs at WNYC. You can follow her on Twitter at @bethfertig.