BP to pay $500k to Mexican man shot in the back

A federal judge has ordered the federal government to pay nearly half a million dollars to a Mexican man who was shot by a U.S. Border Patrol agent near Nogales in November 2010. 

On Thursday, U.S. District Court Judge James Soto ruled in favor of Jesus Castro Romo, a Mexican national from Nogales, Sonora, who was shot in the back by Abel Canales, a Border Patrol agent during an incident on Nov. 26, 2010.

Canales and another agent were patrolling on horseback when they intercepted 12 men, including Castro. Canales claimed that Castro was defiant, refused to listen to orders, and that Castro threatened the agent with a rock and then attempted to throw it at the agent. 

Canales fired one round and hit Castro in the left flank, throwing shrapnel into his spine and leaving him with debilitating pain.

Castro testified that the agent was abusive, yelling at him and whipping him with the reins of his horse. Castro said he tried to get out of reach of the reins, crouching down to the ground and then the agent shot him. 

During an interview with Castro at the two-year anniversary of another shooting involving Border Patrol in Nogales, Castro said that he needed an expensive prescription for morphine to control his pain and that he could not work.

Finding that Canales "committed an intentional battery" and that the shooting was not justified, the judge sided with Castro.

The judge questioned the agent's credibility, in part due to the agent's 2010 guilty plea that he had accepted a bribe and allowed a U-haul truck loading with drugs to pass through the I-19 checkpoint in 2008. 

Judge Soto also noted that Canales' testimony had shifted over time.

As the Nogales International reported, in his original statement to investigators Canales said that that Castro picked up a rock, but immediately dropped it. However, during the civil trial, Canales said that he saw Castro pick up a rock and cock his arm back to throw it.

"The Court finds that Castro was not in the motion of throwing a rock at Canales" when the agent shot him, Soto wrote. Thus, the "firing of his weapon was not based on a reasonable fear for his immediate safety."

Moreover, Soto said that even if Canales testimony was accurate, "the use of force was not justified because there was no situation that reasonably provoked such use."

"Put more bluntly, a rock is not as deadly an object as a gun and requires a greater degree of certainty that the object will be used than the threat or perceived threat of a gun," Soto wrote.

The ruling brings into question the agency's response to rock-throwing in at least six incidents along the U.S-Mexico border.

The most recent incident took the life of 16-year old Jose Antonio Elena Rodriguez, when Rodriguez was killed by Border Patrol agent Lonnie Swartz on Oct. 10, 2012.

Swartz fired through the border fence and shot Rodriguez approximately 10 times. Most of the bullet struck him in the back, and the boy died on the sidewalk just four blocks from his home.

In July 2014, the 5th Circuit Court of Appeals ruled that people in Mexico can sue Border Patrol agents for cross-border shootings.

That decision found that the family of Sergio Adrian Hernandez Guereca had the right to sue Border Patrol agent Jesus Mesa Jr., who fired across the border and killed the 15-year-old in Juarez, Mexico, in 2010.

Mesa claimed he was surrounded when he fired the shot across the border, hitting Hernandez Guereca in the face after he peeked around the pillar of a train trestle. However, cellphone videos made during the incident showed that Mesa's claims were largely untrue.

In a 2-1 decision, the court harshly criticized the actions of the agent.

"If ever a case could be said to present an official abuse of power so arbitrary as to shock the conscience, the Appellants have alleged it here," stated the court's ruling.

In May 2014, Border Patrol responded by releasing a report the agency had commissioned in 2013, which was highly critical of the use of force by agents.

The 21-page report by the Police Executive Research Forum, a nonprofit research and policy organization, cited a "lack of diligence" with regard to investigations, and a "no-harm, no-foul" approach that lead to "tacit approval of bad practices."

The report also questioned the agency's seriousness with regard to deadly force incidents, writing: "It is not clear that CBP consistently and thoroughly reviews all use of deadly force incidents."

"Too many cases do not appear to meet the test of objective reasonableness with regard to the use of deadly force," the report said.

Judge Soto found that "Castro's physical and emotional symptoms were caused by the gunshot fired by Canales" and that further treatment was necessary because of complications rising from the gunshot.

Soto awarded more than $265,000 to pay for the cost of a surgery that will implant a titanium rod to stabilize Castro's spine, as well as further physical rehabilitation, psychiatric treatment, and pain medication.

The judge did rule that Castro was partly responsible for his own injuries and so he reduced to the total award by 10 percent to $497,943. 

As Canales was working as a Border Patrol agent at the time, the federal government must pay the restitution ordered by the judge.