AZMEX SPECIAL 2 9 DEC 2012
Note: Of most interest to the gun guys. Quote: "Also, they say,
agents enjoy an assumption that they're in the right, and they face a
higher threshold for prosecution than the average citizen."
Some of these people might want to come down and spend quality time
around some of the drugged up young punks. Guess the cartel bean
counters have found it cheaper to pay them with product.
Border Patrol faces little accountability
SHOOTINGS BY AGENTS ARE UP, BUT FEW ARE HELD RESPONSIBLE; FAMILIES
AND THE PUBLIC RARELY LEARN THE OUTCOME OF SECRET, COMPLEX
INVESTIGATIONS
KELLY PRESNELL / ARIZONA DAILY STAR
Zelma Barron Torres, with a photo of son Ramses, killed by a U.S.
border agent on the Mexican side. Afterward, "There were reporters
from here, reporters from over there," she says. "After a few days,
they disappeared. Up till now, I don't know anything."
16 hours ago • Tim Steller Arizona Daily Star
http://azstarnet.com/news/local/border/border-patrol-faces-little-
accountability/article_7899cf6d-3f17-53bd-80a8-ad214b384221.html
Just two months after a Border Patrol agent shot her 16-year-old son
in Nogales, Sonora, Araceli Rodríguez Salazar sensed silence
spreading over the case.
"I'm tired of crying. I'm tired of waiting. I want justice," she said
on a recent afternoon, standing outside her humble home on a downtown
hillside.
If the pattern holds, she'll be waiting much longer.
Even as the number of shootings by agents increases, the system for
holding them accountable remains complicated and opaque, leaving the
public in the dark about the status of the cases, an Arizona Daily
Star investigation has found. One Arizona case has remained secret
and "ongoing" for almost three years.
Questions have sharpened after agents shot people who apparently
weren't threatening them at least twice in Arizona over the last two
years.
Still, agents get the benefit of the doubt from the public and
prosecutors, and are rarely criminally charged. In the few cases when
agents have been prosecuted in Arizona, they've won.
That may be because the shootings were justified, but the secrecy of
the process means the public may never know.
As questions of accountability grow louder, shootings by Border
Patrol agents continue - primarily in Arizona. In the last three
years agents have shot at least 22 people nationwide. Nine of those
cases have been in Southern Arizona - four in the last two months and
two just last week.
Last Sunday, a Border Patrol agent in the Baboquivari Mountains
killed an apparent illegal immigrant - 19-year-old Guatemalan
Margarito Lopez Morelos - who, the agency said, struggled with an
agent. On Tuesday, an agent southwest of Gila Bend shot and wounded a
man who, the agency said, brandished a weapon.
Since January 2010, there have been at least six cross-border
shootings by agents, including the one that killed Rodríguez-
Salazar's son, José Antonio Elena Rodríguez. When killed, he was on a
sidewalk across the 36-foot-wide street along the border.
Two people were on the border fence when agents arrived at about 11
p.m. Rocks flew, though police reports leave it unclear who threw
them, and at least one agent fired into Mexico.
Elena Rodriguez was hit at least seven times - twice in the head and
five times in the back. The walls next to him were pocked with bullet
holes.
"What would have happened if a Sonoran police officer had opened fire
and shot a 16-year-old walking along the street in Arizona?" asked
Kat Rodriguez of the Coalición de Derechos Humanos, a human-rights
advocacy group in Tucson. "We all know the response would be very
different, and it shouldn't be."
agent ivie's death
Early on Oct. 2, Border Patrol Agent Nicholas Ivie cautiously
approached a site east of Bisbee where a ground sensor had gone off.
Two fellow agents approached from another direction.
In an apparent accident, Ivie fired at the other agents, striking
one, the FBI and Cochise County Sheriff's Department reported. The
agent who was struck fired back, killing Ivie.
Amid an outpouring of support for Ivie's family, some found a key
aspect of the case troubling: Here was a case where an agent
apparently didn't know what he was shooting at.
Border Patrol agents are taught to use deadly force only when they or
someone else are threatened with death, agency spokesman Bill Brooks
said.. However, officers everywhere must always have "target
discrimination" and fire only at the person posing the threat, said
Dave Klinger, an associate professor of criminal justice at the
University of Missouri-St. Louis.
"If I've got a guy shooting at me, I don't get to send rounds
downrange at the general area," said Klinger, who himself shot and
killed a man when he was a Los Angeles police officer.
The same rules apply to rock-throwing, Klinger and others said. The
closer the thrower, the more likely it poses an imminent threat.
On March 21, 2011, an agent shot and killed 19-year-old Carlos
LaMadrid in Douglas. Local police had chased LaMadrid to the border
fence, where a Border Patrol vehicle collided with the one LaMadrid
was driving, Cochise County sheriff's reports show.
LaMadrid and a passenger began climbing a ladder friends had put
against the fence, and at the same time someone atop the fence began
throwing rocks at the agent. The agent fired and killed LaMadrid as
he climbed the ladder. The rock throwers escaped into Mexico.
Cochise County Attorney Ed Rheinheimer said he has made a decision
about whether to prosecute the agent in the LaMadrid case, but he is
waiting until federal authorities make their call so as not to
influence their decision.
who's in charge?
The FBI, Department of Homeland Security inspector general, the
Border Patrol's critical incident team and the Customs and Border
Protection Internal Affairs branch all may respond to any shooting by
a Border Patrol agent.
The U.S. Attorney's Office oversees the investigation, and local
agencies - such as a sheriff's department - may also investigate
whether state laws were broken. In Elena Rodriguez's case, the local
agency was Sonoran state police, who responded on their side of the
border.
Who's in charge, and what happens from there? That's a tougher
question. Even Jim Calle, a Tucson attorney whose job is to defend
Border Patrol agents involved in shootings or accused of misconduct,
can't pinpoint the process.
"I've been doing this for more than a decade, and it's still
confusing to me," Calle said. "That's how the federal government
operates. They're slow. It's opaque, and they (the investigations)
are always difficult."
"There are times when the public never learns about the shooting,
never mind the process," he added. "The one thing I am sure of is
that every time an agent pulls a trigger, their conduct is critically
reviewed, and it is really, really scrubbed hard for all the details
to see if they've done anything wrong."
The families of those killed and others find it hard to believe the
cases are well-investigated because they can't see it. One of the
families stuck in the process is that of Ramses Barron Torres, killed
on the Mexican side of the border fence in Nogales, Sonora, by a
Border Patrol agent on Jan. 5, 2011.
An FBI spokesman said at the time that Border Patrol agents were
trying to arrest drug smugglers when people started throwing rocks at
them. Sonoran police said Barron Torres was climbing on the south
side of the border fence when shot. It's unclear whether he was a
rock thrower.
Now, 23 months later, he FBI says the investigation is ongoing.
Another case has been open even longer: Jorge Solis-Palma was shot on
Jan. 4, 2010, after, agents said, he threw rocks at them. The Cochise
County Attorney's Office cleared the agent two months later, but the
FBI still considers it "an ongoing matter" almost three years later.
In the days after Barron Torres was shot, "there were reporters from
here, reporters from over there," his mother, Zelma, said in Spanish.
"After a few days, they disappeared. Up till now, I don't know
anything."
names are secret
When a Tucson police officer or a Pima County sheriff's deputy shoots
and kills somebody, the process is mostly transparent and typically
quick.
Both agencies make it a rule to inform the public of the incident
quickly and include the officer's name. The Border Patrol keeps the
names of agents involved in shootings secret - to the point that
LaMadrid's family got a court order to force the federal government
to reveal the name of the agent who shot him so they could serve him
with legal papers.
On the local level, two investigations of shootings occur.
In one, the local homicide department looks into whether the officer
broke the law. Investigators pass their findings to the county
attorney's office for a ruling on whether charges should be filed.
In the other investigation, internal affairs decides whether the
officer followed department rules and regulations.
Those cases are typically wrapped up in two to six months, attorney
Calle said.
The different ways the two levels of government respond is typical,
said Klinger, the University of Missouri professor.
"The further away from the populace the seat of power is, the less
accountability there is," he said. "For whatever reason, people
haven't been making a big stink about federal use of deadly force."
In Border Patrol shooting cases, the investigation may be in an
"ongoing" status long after FBI special agents have completed their
work, said James Turgal, special agent in charge of the agency's
Phoenix division. That may be because prosecutors from the county to
the U.S. Attorney's Office to the Justice Department in Washington,
D.C., are considering their options.
"Just because the FBI walks down to the U.S. Attorney's Office and
presents a case, it doesn't mean we get an answer the next day," he
said.
doubtful witnesses
FBI agents enter Border Patrol shooting cases impartially, Turgal
said. But the way some cases proceeded left witnesses with doubt.
On June 7, 2010, Border Patrol agents in San Diego killed Anastasio
Hernandez-Rojas as they were expelling him from the country into
Tijuana. In a press release, San Diego police said agents had
uncuffed Hernandez-Rojas and he became violent, causing an agent to
use a taser to subdue him.
But witnesses say, and video recordings of the incident show,
Hernandez-Rojas's hands were restrained behind his back and he was
lying on the ground, screaming for help, as about a dozen agents
stood over him, when he was tased and died. The PBS program "Need to
Know" revealed the videotapes and some witness accounts in two shows
this year.
On June 7, 2010, a Border Patrol agent shot and killed 15-year-old
Sergio Hernández-Guereca in a concrete canal that separates Ciudad
Juarez, Chihuahua, from El Paso. In a news release, the FBI said the
agent fired when a group "surrounded the agent and continued to throw
rocks at him."
Witness accounts and videos show that the agent was not surrounded
and that apparently no more than one person threw a rock at him.
Nevertheless, the FBI labeled the incident as an "assault on a
federal officer."
In some cases, the aftermath of the shootings does not inspire
witnesses' confidence in investigators. In both the San Diego and El
Paso cases, witnesses who were crossing border bridges when the
shootings occurred said they were hustled away and not questioned.
One American woman who watched the agent shoot Hernández-Guereca said
in a deposition that she refused to leave the bridge despite a
security guard shouting at her, and she spoke to investigators only
after she insisted on calling 911 and later called the FBI.
"No one approached me and said, 'Listen, can you tell us what
happened?'" Bobbie James McDow said in a sworn deposition taken as
part of a civil lawsuit. "It was basically, 'Get off the bridge, get
off the bridge, get out of here.' "
More recently, a Nogales, Ariz., resident whose 911 call started
chain of events that led to the killing of Jose Antonio Elena
Rodríguez across the border, said no one has interviewed him.
Marco Gonzalez, a radio announcer who lives along the border, called
911 the night of Oct. 10 to tell police that people had jumped the
border fence and were moving through his yard and a neighboring
street. Soon after, he saw border agents drive by, then heard gunshots.
Neither Nogales police nor Border Patrol agents nor the FBI contacted
him.
Sanctions unlikely
An agent who shoots somebody is unlikely to face prosecution or even
internal discipline.
The Border Patrol declined to say whether the agents in any of the
six recent Southern Arizona shooting cases were reprimanded.
"Administrative and disciplinary actions of our employees are not
made public," agency spokesman Brooks said in an email.
Calle, the Border Patrol union's lawyer, said in shootings it's
"exceedingly rare that an agent faces disciplinary consequences for
their conduct."
That's partly because most shootings are legally justified, agents
and attorneys said. They argue there are more shootings now largely
because more border jumpers resist arrest.
Also, they say, agents enjoy an assumption that they're in the right,
and they face a higher threshold for prosecution than the average
citizen.
"Law enforcement officers are given the benefit of the doubt, not
only by juries and American citizens, but inside DAs' and U.S.
attorneys' offices," said Johnny Sutton, who was U.S. attorney for
the western district of Texas from 2001 to 2009. "You're always loath
to prosecute a cop because you understand they're putting their lives
on the line every day."
As U.S. attorney, Sutton ruled many shootings by agents justified and
denied prosecution, he said, but his office also put two Border
Patrol agents in prison. In 2005, agents Ignacio Ramos and Jose
Compean shot an unarmed drug trafficker who was running away. Their
conviction and sentencing prompted a nationwide outcry led by
television personalities. President Bush commuted their sentences on
his last day in office.
Beyond the benefit of the doubt officers receive, their jobs make
them less likely to be charged in the first place. Prosecutors must
consider the likelihood of winning a conviction when taking on a
case, and it's simply harder to win a case against a cop.
Cochise County Attorney Rheinheimer brought a second-degree murder
case against Border Patrol Agent Nicholas Corbett in 2008, arguing
Corbett's January 2007 killing of an illegal immigrant was
unjustified and a crime. There were two trials, two hung juries and
finally Rheinheimer dropped the case.
The Border Patrol agents union lambasted Rheinheimer for prosecuting,
saying "he let undue influence from the Mexican government and the
radical special-interest groups taint his decision-making ability."
Longtime Tucson civil-rights activist Isabel Garcia, an attorney,
laid the blame for the loss on the public's misconception of the
border area as a war zone.
"Even when we get what we should get - full prosecution - it's really
hard to break that impunity," she said. "The public is very ignorant.
They believe all the ugly stuff, so of course they give the agents
full immunity."
If there's a next time, Rheinheimer said, he would factor in his
failure to convict Corbett when deciding whether it's worth bringing
charges against another agent.
That reality, he said, "is balanced against doing whatever is the
right thing to do."
On StarNet: Find extensive coverage of border-related issues at
azstarnet.com/border
the investigation continues inside
Shootings by agents
Map details 20 incidents in the past two years involving Border
Patrol agents. Page A18
Seeking justice by lawsuit
Families, often frustrated by a lack of information after a loved one
is killed, increasingly look to the courts for relief.
Page A19
Contact reporter Tim Steller at 807-8427 or tsteller@azstarnet.com
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