Family of man killed by BP agent near Douglas demands probe, may pursue lawsuit

The family of a Mexican migrant shot and killed by a Border Patrol agent in rugged terrain near Douglas wants an independent investigation of the violent February incident and will likely pursue a lawsuit against the agency.

The Los Angeles-based law firm Karns & Karns, LLP said in a press release last week they will represent the family of 32-year-old Carmelo Cruz-Marcos, adding that his "brutal shooting" should be probed by the FBI and an outside agency, and they criticized the involvement of Border Patrol agents in the early hours of the investigation.

They also said they are moving to file a federal tort claim in the next two weeks — a precursor to a lawsuit against the federal government.

While the Cochise County Sheriff's Office has been tasked with the investigation into Cruz-Marcos' death, the family's attorney Bill Karns questioned their ability to review the February shooting without interference because of the involvement of Border Patrol's increasingly controversial Critical Incident Teams.

In recent weeks, Critical Incident Teams — agents trained in forensic science who routinely arrive at major scenes and gather evidence —have faced withering criticism over their involvement in fatal incidents. However, federal officials have defended the teams.

In a statement, the head of Border Patrol's parent agency — U.S. Customs and Border Protection — Chris Magnus said the agents are "vitally important as many critical incidents involving CBP operations occur in remote locations where other agencies may be unwilling or unable to respond."

Magnus, the former chief of the Tucson Police Department, said that "in the case of serious incidents involving CBP personnel, the evidence collection teams are sometimes called upon to assist CBP’s Office of Professional Responsibility or other local, state, and federal law enforcement agencies as they conduct investigations.

 "These teams do not lead investigations, they collect evidence. Without CIT teams, specialized expertise such as accident recreation and analysis would be absent, hindering the oversight process," Magnus said.

However, Karns & Karns said the involvement of a Critical Incident Team presents a "glaring conflict of interest," adding that "the Border Patrol fosters an environment of vile and racist behavior towards migrants and should not be allowed to police themselves."

Among their arguments, the law firm said that Border Patrol agents "prevented" Cochise County officials from "immediately accessing the scene to conduct their own investigation," citing a long delay between the shooting and the recovery of the man's body the next morning.

Cruz-Marcos was shot and killed on Feb. 19 when Border Patrol agents tracked down a group of suspected migrants in a rugged mountain range about 30 miles northeast of Douglas, Ariz.

Cruz-Marcos, originally from Puebla, Mexico ,was part of a group attempting to skirt through rugged terrain when they were located by two Border Patrol agents mounted on horses.

The BP agent—who has not been publicly named—told the Sheriff's Office that he fired his weapon an "unknown number of times" when he shot and killed Cruz-Marcos, said Carol Capas, a CCSO spokeswoman. The agent said that he attempted to apprehend Cruz-Marcos, but that the 32-year-old man threw a punch, and then attempted to run down into a canyon. The two men scuffled, and then Cruz-Marcos threatened the agent with a rock, officials said.

An autopsy from the Pima County Office of the Medical Examiner showed Cruz-Marcos was shot four times—twice in the face and twice more in the chest.

While the shooting occurred late Saturday evening, Cruz-Marcos' remains were not retrieved until the next morning.

Capas said Cochise Sheriff's deputies and detectives responded to the incident, but delayed recovering Cruz-Marcos' body until the next morning to "allow for the safety of detectives" and other law enforcement personnel. Along with CCSO, a helicopter from the Arizona Department of Public Safety was brought in to help officials access the rugged terrain, and "process the scene."

Cruz-Marcos' remains were later transported to the Pima County Medical Examiner as part of the investigation, Capas said. PCOME conducts autopsies in Cochise County cases under a contract.

Incident draws criticism

The Mexican Consulate decried the shooting, writing in a statement that they condemned "any act of unjustified violence against migrants." They added that consulate staffers interviewed the migrants who were taken into custody, and would be monitoring the situation.

"Witnesses to the shooting say Carmelo was never a threat to any Border Patrol agent," wrote Karns & Karns in a news release. "The family is demanding an independent investigation of the incident by the FBI and an outside agency that can verify the evidence and facts."

The shooting is being reviewed by the Cochise County Sheriff's Office, as well as Border Patrol's own Critical Incident Team and CBP's Office of Professional Responsibility. Officials also said that incident will be reviewed by the Office of the Inspector General with the Department of Homeland Security.

"As it stands, the investigation also involves them, and that doesn't sound like an independent investigation to me."

Karns said while the sheriff's department is investigating the shooting, the involvement of OPR and Border Patrol's own investigators means that the sheriff's office investigation is not "truly independent."

"As it stands, the investigation also involves them," Karns said, "and that doesn't sound like an independent investigation to me."

"I'm also not convinced that Cochise County is truly independent—sheriff's departments, God bless them; they're still police and they tend to look out for each other," he added.

Investigators referred their conclusions to Cochise County Attorney's Office on Thursday, Capas said, leaving the decision to Cochise County Attorney Brian McIntyre. 

The Tucson Sentinel sent repeated requests for comment from McIntyre and his office, but never received a response.

Karns & Karns argued that Border Patrol and CBP "have a history and culture of violence and secrecy,"adding that federal officials "must answer questions about how Border Patrol agents failed to deescalate the situation" and "why the use of force was deadly."

In March, U.S. Rep. Raúl Grijalva sent a letter to Joseph V. Cuffari, the inspector general for the Department of Homeland Security, and pushed for the watchdog to  further review of what he called "unjust killings."

"It is reprehensible and unacceptable that these incidents have occurred," Grijalva wrote on March 18. "The agents responsible must be held accountable and these migrants and their families deserve justice."

Grijalva also complained that CBP has not informed Congress of fatal incidents.

CBP is required to notify the chair and ranking members of nine separate congressional committees, including five in the Senate and four in the House of Representatives. The agency has also said that it would inform the House and Senate members, who represent the district and state where the death occurred. CBP is also required to inform foreign embassies, as well as the media following the notification to Congress, according to an internal memo.

Agent told investigators Cruz-Marcos 'struck' him during scuffle, threatened to throw rock

According to details released following the shooting by CCSO and CBP, the agent was working as a member of a BP horse patrol with a partner, and the two were responding to sensors tripped by a group of about 16 people attempting to skirt through the rugged Peloncillo Mountains, about 30 miles northeast of Douglas, Ariz.

Around 9 p.m., the agents dismounted from their horses because of the rough terrain, and spotted a group of people who immediately scattered, CBP officials said.

One BP agent chased two men uphill, while the other agent chased a man downhill. The agents were able to apprehend the men, and then spotted a fourth man under a tree. That man, Cruz-Marcos, broke into a run, attempted to escape by "running downhill into a canyon," CBP said, and the agent chased him. Both the agent and Cruz-Marcos tripped and fell several times until the agent grabbed him, Capas wrote.

The agent told investigators that Cruz-Marcos turned and "struck him in the left shoulder" and his fist glanced the agent’s cheek. The agent tackled Cruz-Marcos, who went face down in a crouch with his hands under his body, and he refused to "changed his position," Capas wrote. "The scuffle reportedly continued" and the man "threw his elbow backwards into the agent" and managed to get up, she said.

The autopsy showed that Cruz-Marcos had a bruise on his right check and neck, as well as a cut on his scalp.

Cruz-Marcos, Capas wrote," then ran approximately six feet away before picking up a large rock and turning back towards the agent making a throwing motion with the hand that held the rock."

The agent told investigators that he "fired his weapon an unknown number of times as he was in fear for his life and safety," Capas wrote.

The Pima Medical Examiner's Office confirmed last week that Cruz-Marcos died as a result of "multiple gunshot wounds."

The second agent ran to his partner, and found the man on the ground. The agents requested medical assistance, but determined that Cruz-Marcos was dead. As they waited, additional agents, including members of Border Patrol’s Search, Trauma, and Rescue Team and a Border Patrol paramedic, arrived at the scene, CBP said. While searching the surrounding area, Border Patrol agents apprehended two additional undocumented migrants who were part of the same group, the agency said.

By 10 p.m., Border Patrol officials alerted the Cochise County Sheriff's Office to the incident, officials said.

previous shootings

The incident echoes several shootings in Cochise County involving Border Patrol agents.

In November 1999, David Maldonado Quijada, 29, was shot and killed by Border Patrol supervisor Daniel Hann.  Hann said he fired his weapon in order to protect his partner Ronald Bellavia after Quijada threw rocks at the agents, and threatened them with a rock the size of small cantaloupe.

In January 2007, Border Patrol Agent Nicholas Corbett shot and killed 22-year-old Francisco Javier Dominguez-Rivera during an incident near Douglas, Ariz. Unlike Hann, Corbett faced prosecution by the Cochise County Attorney's Office, which argued that the agent's account of the shooting didn't match witness testimony or forensic evidence. Corbett was twice charged with murder by Cochise County officials, but both cases ended with hung juries.

Three years later, Border Patrol Agent Miguel Torres-Vasquez shot and killed Jorge Alfredo Solís Palma, 28, when he hid under a tree and allegedly threw rocks at the agent. In this case, the Cochise County Attorney announced they would not pursue charges.

In March 2011, Border Patrol Agent Lucas Tidwell shot and killed 19-year-old Carlos LaMadrid while the boy was straddling the border fence in Douglas. Two years later, federal officials said they would not pursue charges against the agent, arguing that he acted in self-defense when he shot the boy four times. LaMadrid's mother, Guadalupe Guerrero, filed a federal lawsuit against Tidwell in Tucson.

However, five years after the boy's death, U.S. District Judge James A. Soto ruled the agent's actions were justifiable.

Since 2010, there have been over 200 fatal encounters involving CBP officials, according to the Southern Border Communities Coalition, an advocacy group. This includes what the group called a lack of medical attention for people in the agency's custody, as well as dozens of use-of-force incidents involving both on-duty and off-duty officials, and vehicle collisions that directly or indirectly involved CBP agents.

According to SBCC, there have been 58 use-of-force incidents by Border Patrol agents and officers with the Office of Field Operations, which manages the nation's border crossings and airports. Another 72 incidents involve fatal vehicle collisions that directly or indirectly involved CBP agents, and there are more than a dozen killings involving off-duty CBP officials, according to SBCC.

Overall, only a handful of incidents have resulted in prosecution, and juries have refused to convict the handful of agents who faced charges. This includes the case against Lonnie Swartz, a Border Patrol agent accused of shooting and killing 16-year-old Jose Antonio Elena Rodriguez during a cross-border incident in Nogales in October 2012. Swartz fired 16 rounds in 34 seconds in three separate salvos, hitting the boy 10 times in the back and head.

Prosecutors argued that Swartz use of force was "unreasonable and unnecessary" and that the agent fired on Elena Rodriguez as he was prone on the ground. Swartz's defense attorneys said the agent reacted in "dangerous, scary, deadly-force situation," and in the darkness and confusion of the scene, thought he was shooting at a second rock thrower when he fired his .40-caliber H&K P2000 pistol, emptying one magazine, and then three rounds from another.

Federal prosecutors pursued Swartz twice, but failed to convince two separate juries that Swartz violated the law when he killed the teenager.

In 2022, there have been seven fatal incidents, including the death of Cruz-Marcos, the death of a Haitian man in custody in Yuma, Ariz., and a car crash that killed two people after the driver fled from agents near Amado, Ariz.

Karns complaints echoed those of the SBCC, which sharply criticized the early days of the investigation into Cruz-Marcos' death, writing on Feb. 23 that "there are multiple red flags in this investigation." The group argued that CBP "wasted no time in undermining the investigation, underscoring ongoing concerns about the integrity of misconduct investigations at the nation’s largest law enforcement agency."

"This is another horrific tragedy at the hands of Border Patrol agents," said Vicki B. Gaubeca, director for SBCC. "We urge our congressional members in Arizona to demand a full and transparent investigation into this matter. So far, we have only seen problematic and questionable actions taken by officials who are investigating this incident."

Gaubeca wrote that it is "important for the public to know" that Cochise County Sheriff's Department is "conducting a separate, independent and full investigation, and that the FBI also conducts an independent, comprehensive and public investigation."

Beginning during the Obama administration, CBP instituted the National Use of Force Review Board. Since 2014, a board—made up of senior leaders from CBP, the Justice Department, DHS,  and U.S. Immigration and Customs Enforcement—reviews use-of-force incidents that resulted in serious injuries or deaths, including every incident involving firing a weapon.

The board reviews cases that were investigated but were not prosecuted by a U.S. Attorney, or state or local prosecutors.

These often take years. In December 2021, the board released its most recent investigation involving a Feb. 2018 incident involving an agent in Florida.