Prosecutions rare in Border Patrol shootings
Political climate, trust and evidence contribute to lack of accountability
Take a map of Arizona, draw a square in the bottom right hand corner — the one closest to New Mexico and the international border — and you get Cochise County. Fewer people live here than in many cities, and it's part of the nation's most active illegal immigration corridor.
With a history of public art controversies and two coffee roasters, Bisbee seems more Bezerkeley than border town. But over at the courthouse, there's no mistaking its place on the line between Mexico and the United States.
County Attorney Edward Rheinheimer, who's practiced here for 20 years, has seen more than half a dozen cases involving Border Patrol agents fatally shooting people. He's taken only one of them to trial. Twice it ended in a hung jury.
These cases are tough to prove, for reasons ranging from contested facts to politics, he and other legal experts said. But as the number of civilian deaths involving border agents rises — from one four years ago to five last year — it's not just human rights activists who believe there should be more accountability and oversight.
George McCubbin, president of the National Border Patrol Council, the union representing 17,000 Border Patrol agents and support staff, believes reforms leading to fewer fatal shootings by the Border Patrol are in order.
"If our employees are being put in positions where this is going to be a semi-normal action then we need to rethink as an agency how we're doing business out there," he said.
A months-long investigation by nonprofit journalism organizations from California, Texas and New York has found that deaths at the hand of border agents are increasing despite decreases in illegal immigration and assaults against agents. The media collaboration identified at least 14 men and boys who have died since Oct. 1, 2009 after confrontations with Border Patrol officers.
The investigation illuminated serious questions about follow up and accountability.
No one has been criminally charged in these deaths, but last week, a grand jury was called to examine the death of Anastasio Hernandez Rojas, beaten and tased by more than a dozen agents in 2010 in San Diego. U.S. lawmakers called for an investigation after the PBS national newsmagazine, Need to Know, aired the video and detailed the death in April.
Human rights advocates argue that fatalities are a part of a much larger landscape of abuse. A humanitarian aid group based called No More Deaths issued a report in 2011 based on interviews with almost 13,000 migrants. The researchers found that 10 percent of those interviewed reported physical or sexual abuse by Border Patrol agents.
"This is an issue that's a systemic issue," said Danielle Alvarado, one of the authors. "It's not about a couple bad agents that aren't following their training or have an ax to grind. The reality is that Border Patrol is part of the largest federal law enforcement agency in the country, and so as a result these systemic patterns of abuse have a huge impact."
She said the lack of external accountability, beyond Customs and Border Protection or the Department of Homeland Security (DHS), is a problem.
"It's not sufficient for there to be enforceable standards … it's not enough that Border Patrol have a complaint process, it's not enough that there be an internal DHS process, because it's clear that none of those mechanisms are sufficient," she said.
Customs and Border Protection declined to be interviewed for this project. A spokesperson shared this statement:
"All CBP employees are expected to conduct themselves in a professional manner at all times. CBP stresses honor and integrity in every aspect of our mission, and the overwhelming majority of CBP employees and officers perform their duties with honor and distinction, working tirelessly every day to keep our country safe. CBP takes every allegation of misconduct seriously and fully cooperates in the investigation of such allegations."
Shawn Moran, vice president of the National Border Patrol Council, noted that agents are up against tremendous dangers and have every right to defend themselves.
"Border Patrol agents are not trained, nor paid to withstand violent assaults without the ability to defend themselves. Rocks are weapons and constitute deadly force. If an agent is confronted with deadly force they will respond in kind. No agent wants to have to shoot another human being, but when an agent is assaulted and fears for his life then his hand is forced….
"While the loss of life and injuries are regrettable, it is due solely to the decision to attempt to inflict harm upon a United States Border Patrol Agent. The National Border Patrol Council stands behind the actions of the agents who do their duty every day, under extreme circumstances, along the southwest border," he wrote in an email yesterday.
Border Patrol agents have been prosecuted for crimes in recent years including corruption, bribery, and improper arrests, but rarely for situations involving lethal force. Those cases often balance the word of agents against the silence of the dead, and invoke self-defense protections in ways that are hard to challenge legally.
"Most of their encounters occurred out in the wilderness, if you will," said Peter Nunez, former U.S. Attorney in San Diego. "There's no camera, there's no citizens roaming around, you have almost no way to verify anybody's story."
"It can be done. It should be done," Nunez said of investigating and prosecuting agents who commit crimes. "These cases are difficult. You probably need more evidence than you would in a normal case, just because you don't know how juries are going to react."
Rheinheimer said inevitably politics play a part.
"When we have an officer involved shooting … we evaluate it the same way we do every other case we evaluate," he said. "If you then introduce the element of Border Patrol agent and illegal immigration into the equation, then a whole new set of dynamics comes into the case …. because I think it's inevitable, especially in a border community or a border state, that the whole political aspect of the immigration issue is then introduced."
Rheinheimer had a personal experience with politics when he prosecuted an agent named Nicholas Corbett, the case that ended with two hung juries.
He says the Department of Justice did not support his decision to bring that case to trial, and the prosecution depleted the special fund intended for these cases. If there ever is another case like Corbett's the county couldn't afford to prosecute, he said.
"For me, the Corbett case was never about the politics of illegal immigration, or border security. It was about nothing more, and nothing less, than law and evidence. It was about nothing more, and nothing less, than fundamental constitutional principles of equal protection and due process," he said.
"For DOJ, on the other hand, it had everything to do with politics. Their entire position on the prosecution was governed by politics. In the end, what it boils down to is that once you introduce politics into the criminal justice system, you no longer have a criminal justice system.
"And it doesn't matter which side of the immigration issue you come down on. When politics replace justice at the Department of Justice, everybody loses."
A spokesperson for the department declined to comment.
Research shows a handful of cases in which Border Patrol agents were prosecuted for injuring or killing people while on the job. They include:
An agent was convicted in 2010 of assaulting a Mexican man. The agent "kicked the victim, struck him in the stomach with a baton, threw him down to ground, and punched him without any legitimate law enforcement reason to use force," an FBI statement said.
Another agent was convicted in 2007 of sexually assaulting a woman he stopped at a checkpoint in Texas four years earlier.
Agents Ignacio Ramos and Jose Alonso Compean were convicted in 2006 of shooting a drug smuggler in the buttocks. President George W. Bush commuted their highly unpopular sentences in 2009.
Alvarado, with No More Deaths, said the accumulation of deaths and other abuses should prompt some soul searching.
"Are we at a point as a country where the enforcement of our laws by necessity comes with that sort of treatment of people? Because if it is, I think that that is really a question for us. how have we arrived at this point where we can justify the mistreatment of people on such a huge scale, and go to bed at night as a country saying that's the best we can do and that's consistent with our shared values?"
Through interviews, court records, police reports, eyewitness videos and photographs, the reporting collaboration pieced together the stories of several deaths. It bore out what legal experts warned: there is a steadfast divergence between the versions of events as reported by the Border Patrol and what others claim occurred.
In one such incident, Sergio Hernandez Guereca, 15, died in Texas in 2010, shot by an agent for allegedly throwing rocks. A government source previously told the El Paso times Hernandez was sought for human smuggling.
His death was filmed. The Department of Justice decided not to prosecute, calling the killing "an act of self defense."
In April it issued a statement describing an extensive, multi-agency investigation based on 25 witnesses and evidence not shared with the public, including: "civilian and surveillance video; law enforcement radio traffic; 911 recordings; volumes of CBP agent training and use of force materials; and the shooting agent's training, disciplinary records, and personal history."
Hernandez's family disagrees with the findings. So does the Mexican government. The family filed a wrongful death suit (after a prior lawsuit was dismissed), and the government of Chihuahua issued a warrant for the agent's arrest. A symbolic move, some might say, as chances of extradition are slim.
Moran, with the agents' union, said the Mexican government is not above reproach.
"The government of Mexico has done their usual grandstanding where they hurled baseless accusations at the Border Patrol agents, fed criminals concocted stories, and meddled in the affairs of the United States. Mexico bears quite a bit of responsibility whenever one of its citizens dies or is injured along the border due to its allowing criminal organizations free-reign and its refusal to police its northern border," he wrote.
In another case, the official version of events contradicts what a dead man had to say. The case of Roberto Perez Perez was not included by reporters among the 14 Border Patrol-involved deaths because the cause of death was not clear.
Perez died in detention in January 2011. He was arrested while trying to reenter the U.S. at San Ysidro with a fake ID, half a year earlier.
Two documents provide insights into what he allegedly suffered. A few months before his death, Perez Perez wrote a letter to a Mexican newspaper. He described how agents beat him until he started vomiting blood and blacked out, and then he was mistreated while in detention. He concluded his account with these words:
"Please publish everything that happened with respect to all these injustices and the humiliating way I have been treated since my arrest. It's like a veiled concentration camp, but the truth is that I was subjected to most blatant cruel and unusual punishment."
In a complaint filed with the DHS his partner decried his treatment and described how his condition following the alleged beating deteriorated over the course of several months. After one hospital visit, a wound caused by a syringe became infected, leading to his death, her complaint states.
An autopsy report found that the syringe contributed to his death, but was not the only cause.
"The cause of death is certified as cellulitis of right upper extremity with cirrhosis, hypertension, diabetes mellitus, and chronic substance abuse listed as contributing conditions. The manner is natural."
A DHS spokesperson said her complaint has been denied and the government did provide proper medical care.
Border Patrol agents often say they are targeted by rock-throwers, who are harboring illegal immigrants or stashes of drugs. Their statistics show incidents of rock-throwing increased in most years since late 2005 but they dramatically dropped off in the last two fiscal years.
The overall number of assaults against border agents is declining, according to CBP data. But several agents have lost their lives in recent years. In July 2009 an agent was shot dead by drug traffickers near Campo. Agent Brian Terry was killed in Arizona in 2010. And last year, a drug trafficker was sentenced to life in prison for running over agent Luis Aguilar in 2008 with his Hummer in California, near the Arizona border.
McCubbin, the Border Patrol council president, says agents are being ordered to patrol closer to the border with Mexico, where there's more potential for violent conflict such as rock assaults. Rock-throwing was cited as a factor in several of the 14 fatal shootings reporters investigated.
The falling number of apprehensions show border enforcement is working, McCubbin said, so drug traffickers and human smugglers are getting more desperate. He said he would never presume to question an agent's use of force.
"Unless you've been involved in a rocking incident there is almost no other recourse left for agents caught in the middle of this," he said in a phone interview.
When an agent fatally shoots someone, a clause in the union contract allows the agent to meet with a union representative before the investigation starts. From there, first local and then federal agencies can investigate and prosecute, culminating with the Justice Department.
"The crime determines the jurisdiction," said Mario Conte, former federal defender in San Diego. "There is no clear path … Sometimes it becomes a turf war."
Because they work with prosecutors to build cases, law enforcement officers get more trust, experts said.
"We as prosecutors we take the word of law enforcement officers all the time. It comes with the territory," Rheinheimer said, "and we take them at their word unless or until we have reason to believe we can't take them at their word."
A 2010 case he considered prosecuting is a case in point. It involved the death of Mexican man named Jorge Alfredo Solis Palma. Solis illegally entered the U.S. with two other men. Border Patrol agents tried to arrest him, but he became combative, according to the Cochise County Sheriff's incident report. In the report, Border Patrol agents said Solis threw rocks at an agent and his service dog. He also wrestled with that agent and allegedly "grabbed a rock and struck himself with it" in the forehead before escaping and running away, the report states.
A second agent, Miguel Torres Vasquez, followed Solis behind a hill where he shot him. The report says the area was out of sight of surveillance cameras and there were no witnesses. So there's only one version of that fatal moment — that of the agent, who said he fired his weapon in self defense.
"Not being able to disprove what the agent said, we're in a position where we can't charge a crime," Rheinheimer explained.
That trust also extends between officers and the public. Even with a thorough investigation and sufficient evidence, convincing a jury is another hurdle. Conte, the former federal defender, said the public's "slant slash bias" that a migrant "broke the law, they had it coming" and that agents "are out preserving our freedom" poses a significant challenge for prosecutors.
"It's going to be a little easier if you're defending law enforcement and it's going to be a little harder if you're plaintiff or the victim to get a result in your favor," he said. "The situation is simply imbued with an inordinate amount of publicity that looks at it from primarily one point of view. With juries, the public, the way the media presents the cases – it's going to be tough."
Roxana Popescu is a San Diego reporter whose work has appeared in the New York Times, Associated Press, Forbes, Newsweek, San Diego Union-Tribune, Voice of San Diego, Investigative Newsource, and other outlets.