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Federal judge holds BP in contempt for failing to preserve video evidence

A federal judge has ruled that Tucson Sector Border Patrol officials violated two court orders requiring the agency to preserve, and submit to advocates, video surveillance records of detention centers at eight stations, as part of a class-action lawsuit filed in 2015 over the treatment of immigrants in its holding cells. 

On Monday, U.S. District Judge David C. Bury found the agency in contempt, writing that Tucson Sector Border Patrol had "violated" his orders, because they had "failed to take all reasonable steps" within their power to "preserve video evidence." 

In January, a coalition of civil rights groups, along with lawyers with Morrison and Forester LLP, filed a motion asking Bury to hold the agency and federal lawyers in civil contempt of court, and appoint a data monitor to oversee the agency's handling of footage from video recorders in eight Tucson Sector stations.

In the motion, Colette Reiner Mayer, a lawyer with Morrison and Forrester, accused the agency of "stonewalling" and "bad faith" surrounding the video footage. 

Mayer said that the agency knew that a computer update to the digital video recorders used in a facility in Tucson had corrupted the video, but "instead of fessing up to their failures" officials with Border Patrol "feigned ignorance."

Border Patrol officials argued that a technical glitch caused the loss of video surveillance at multiple stations, however, Bury rejected this argument, in part because the agency asked not to be forced to release archived video evidence on a rolling schedule and instead to release video footage when advocates requested it. 

"In other words, the Defendants would archive and store the video recordings until Plaintiffs requested them, then copy the archive for the station and time period specified," Bury wrote. Instead, the archiving process was "not being timely completed and instead was generating an error message." 

Bury wrote that agency officials knew they were using their recording system in "a unique way" and that they had trouble initially creating archives of the video recordings. 

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Moreover, he blasted the agency for staying "silent regarding problems they knew exited in archiving the video recordings." 

"Even without the corruption problem, Defendants knew they had gaps in the recordings as early as June. Nevertheless, they failed to provide Plaintiffs with this information and when Plaintiff requested the archived video recordings in August, the Defendants postponed Plaintiffs’ discovery of the gaps in the videos," Bury wrote, adding that the full scope of the problem remains "unknown." 

As a consequence, the agency must provide in the next seven days a "blue line report" to the plaintiffs that shows what's missing, and the agency may not present expert witness opinion regarding the conditions of the detention areas during the missing time periods, Bury ruled.

Bury wrote that the loss of the video would be taken as an "adverse inference" that the video would corroborate with the statements of one class member, Jose Garcia-Garcia. As the case moves forward, the court may either dismiss expert testimony from the agency regarding the missing time periods, or may again, rule that the video corroborates the plaintiffs' claims. 

The agency also has 20 days to provide video footage from the Brian A. Terry Station in Naco and the Casa Grande Station, and the agency must install a digital video recorder at the Ajo Station. 

Lastly, Bury ordered the agency to pay attorney's costs and fees, which in January was approximately $41,000. 

In 2015, the American Civil Liberties Union of Arizona, backed by the American Immigration Council, the Lawyers Committee for Civil Rights, and the National immigration Law Center, filed a class-action lawsuit, arguing that Border Patrol regularly holds people for more than 24 hours in temporary facilities, subjecting immigrants to freezing, overcrowded cells without access to food, water, medical care and legal counsel.

Conditions at Border Patrol stations have become so notorious that cells are regularly called hieleras, or "iceboxes" by both agents and detainees.

In August 2015, Bury ordered the agency to turn over videos showing the conditions of hold room, but a month later, when it became clear that the agency was failing the preserve the footage, the judge lambasted the agency for destroying evidence and ordered officials to turn over all the surveillance video. 

Bury has already issued a preliminary injunction against the agency over the treatment of immigrants in Border Patrol holding facilities.

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In November, he ordered the agency to provide clean bedding for detainees, including a mat and a mylar survival blanket for all detainees held more than 12 hours; allow detainees access to showers if they are in custody for more than 12 hours; and follow its own Medical Screening Form at all stations, and ensure that agents follow their own requirements for the delivery of medical care. 

And, in January, Bury rejected an argument that his orders had created "unexpected consequences" for federal officials, writing that the "facts and circumstances" had not changed, reiterating earlier comments that the agency could not "sidestep reality by relying on the structural limitations of Border Patrol detention facilities."

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Click image to enlarge

Ross Franklin/AP Pool photo

Two young girls watch a soccer match on a television from their holding area at the CBP Nogales Placement Center in 2014. Other detainees sleep under foil blankets.


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