Jorge Bautista, the pastor who was shot in the face by a federal agent with a projectile during a protest in Oakland last October, has filed a Federal Tort claim against the U.S. government. 

Bautista, an Oakland resident who serves as pastor at the United Church of Christ in San Mateo, is seeking $5 million in damages.

On Jan. 27, Bautista’s lawyer, EmilyRose Johns, filed what’s called a Standard Form 95, the first step for any plaintiff who wants to sue a federal agency. In an attached letter to the complaint, filed with the District Court Litigation Division, Johns details the extent of Bautista’s injuries, saying he was “quickly unable to breathe because of the chemical agent and believed he would die from asphyxia,” and he “experienced trouble breathing following the assault, and he continues to experience severe trauma from the memory of the assault and his fear that he would die.”  

“Reverend Bautista was dressed in a uniform clearly identifying him as clergy, and his actions were peaceful and non-threatening,” Johns writes. “The Federal agent’s actions were malicious, violent, intentional, and unjustifiable.”

She attached a photo to the form by Jerome Parmer that first appeared in The Oaklandside, which shows a federal agent pointing his weapon at Bautista’s head in the moments after he fired. 

Johns told The Oaklandside that the “less lethal” shooting was “ a violation of the law and very clearly a violation of Reverend Batista’s rights to protest and to be free from any kind of physical or bodily harm or intrusion by these officers.”

She said the officers could have given him a verbal order. “Instead,” she said, “these men who are essentially acting like lawless cowboys just come in, they do whatever they want, don’t have to identify themselves, because there is no oversight within the Department of Homeland Security, and do it with complete impunity.”

The attack came less than three months before 3,000 Customs and Border Patrol and Immigration and Customs Enforcement agents surged into Minneapolis, sparking weeks of protests. Officers there have routinely fired tear gas into crowds and have sometimes used live ammunition, killing two observers, Renée Good and Alex Pretti.

In a statement to The Oaklandside the week Bautista was attacked, a Department of Homeland Security spokesperson claimed protesters at the Alameda County base, where an ICE operation was being staged, “swarmed, attacked, and refused to get out of the way” of CBP trucks, and that officers “provided ample notice to these individuals to clear the street and used appropriate force to clear the area for the safety of law enforcement.”

The federal government has six months to act on Bautista’s claim; if it’s denied, Johns said she will file a civil complaint on Bautista’s behalf. 

A complaint to California’s attorney general

In the aftermath of the shooting, The Oaklandside spoke with witnesses and constitutional scholars to better understand what took place and whether the agent’s actions violated the law. 

Erwin Chemerinsky, the dean of the UC Berkeley School of Law, told us that federal officers can sometimes be criminally prosecuted for unreasonable conduct, citing a 2001 case, Idaho v. Horiuchi, which involved a standoff with officers where three people were killed. In that case, the U.S. Court of Appeals for the 9th Circuit allowed Idaho’s prosecution of the officers.

“I believe that courts should conclude that there is no reasonable need for ICE agents to be wearing masks and never a need for excessive force,” Chemerinsky said. “Being a federal officer is not a ‘get out of jail free’ card that excuses all wrongdoing committed while on the job.”

In a conversation this week, Johns said that she has been in discussions with attorneys in Minneapolis and elsewhere about how to file federal claims. Other clergy have been assaulted by federal officers at ICE protests in recent months, and at least one, Rev. David Black, a Presbyterian minister in Chicago, has filed suit.

In October, a federal judge in Chicago issued a restraining order that barred federal agents from using violence or riot control weapons against people, including clergy, unless there is a viable threat. 

Rev. David Black of First Presbyterian Church of Chicago speaks during a protest in Chicago’s Daley Plaza, Sept. 8, 2025. Credit: AP Photo/Carolyn Kaster

Johns said she’s spoken with police officers who have been trained in the use of “less lethal” launchers and that so far, all have told her that they’re trained to shoot toward the ground or into the air and away from people. CBP’s use of force policy encourages verbal warnings before using less lethal devices and says their use must be “objectively reasonable and necessary.”. 

“Those canisters have a significant ability to severely injure,” Johns noted. “Frankly, I’m genuinely surprised that Reverend Bautista did not have more severe physical injuries from the canister.” She said he had a cut on his chin that appeared to have been caused by the canister hitting his face. 

Johns said she’s actively seeking to identify the agent who shot Bautista. She said she submitted an Freedom of Information Act request that the government has not yet responded to; she may pursue a lawsuit to force the release of the records. 

“What we’re learning through watching these ICE and Customs and Border Patrol agents operate is that the obfuscation of their identity is one of the more insidious moves that they make to avoid any kind of accountability,” she said. “You can’t make a complaint to an agency about an officer’s behavior if you don’t know the name of the officer.”

Johns also submitted a complaint to the California attorney general’s office, which The Oaklandside has reviewed, on Dec. 8, after Rob Bonta, the AG, invited people who had been brutalized by federal forces to do so. Johns said the AG’s office has not yet answered her claim or acknowledged receiving it. The office did not immediately respond to a request for comment from The Oaklandside. 

“I’m actually very disappointed in the attorney general’s office because it’s not like there are a ton of complaints coming out of California at the moment,” she said.

She said she asked the Oakland Police Department whether they had made a report of the incident, as Bautista had asked them to do, and she said she was told they had not. We reached out to the OPD and a communications officer told us the department would get back to us once they have a response. 

“I have a lot of skepticism about the idea that police are going to police themselves,” Johns said.

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