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County attorney: No charges against BP agent in May shooting death

A Border Patrol agent who shot and killed an unarmed suspected drug smuggler near a Green Valley golf course won't face criminal charges. "A jury in a criminal trial would most likely find that Agent (Daniel) Marquez' actions were justified," the Pima County Attorney's Office determined.

Jose Luis Arambula was shot in the back of the head as he was fleeing Border Patrol agents on foot on May 30.

Arambula, 31, had led a group of agents on a 15-mile high-speed chase that ended when he drove his Jeep off-road across a golf course, over a 15-foot embankment and became stuck in sand in a dry river bed. He then ran on foot into a nearby pecan orchard, where he was shot.

In an Aug. 14 letter released Tuesday after a public records request by the Green Valley News, Chief Criminal Deputy Kellie Johnson told the Pima County Sheriff's Department that no charges would be filed against Agent Marquez in the shooting.

Arambula, who refused to stop for border agents after his vehicle triggered a sensor in the desert, was shot behind the left ear after he twice turned toward Marquez during a foot chase and "punch(ed) his hand out as if he were about to shoot a weapon," Johnson wrote.

Arambula, a Tucson-area resident and U.S. citizen, died at the scene, at around 2:30 p.m. He was unarmed; a cell phone was found under his body.

"Given Mr. Arambula's actions, a jury would likely conclude that Agent Marquez reasonably believed that deadly physical force was immediately necessary to protect himself from Mr. Arambula's apparent attempt to use deadly physical force," Johnson wrote.

Invoking his 5th Amendment rights, Marquez did not speak with investigators.

The results of the investigation were largely based on interviews with another BP agent, Todd Palmer, who was about 30 yards away when the shooting occurred.

Marquez fired nine times, striking Arambula once, a report released earlier by the Sheriff's Department said.

Palmer saw Arambula turn around twice during the chase through the pecan orchard and motion as if he were preparing to fire a gun, according to Johnson's letter.

When the suspected smuggler turned the second time, “Agent Palmer heard shots immediately thereafter," the letter said. Marquez was about 30 yards away from Arambula when he fired, the letter said.

Before leaving his vehicle, which was found to carry 21 bales of marijuana weighing 504 pounds, Arambula had led agents on a chase on Interstate 19 at speeds of up to 100 mph.

During the vehicle pursuit, Palmer and Marquez were informed over the radio that "someone associated with the Jeep had a history of aggravated assault on a peace officer with a deadly weapon," the letter said.

Arambula had earlier been arrested, on April 4, after a chase in Tucson. He told investigators that he had been paid $1,000 to drive a load of 11 marijuana bales to Phoenix.

Arambula shot same day force report released

The suspected drug smuggler was killed the same day that the Border Patrol released an internal report that 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."

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

The report cited "lack of diligence" with regard to the investigation of use of force incidents, 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." 

The group evaluated 67 incidents of deadly force by border agents from January 2010 to October 2012, noting several concerns including when agents fired at vehicles or shots were fired at people throwing rocks and other objects. The report included reviews of 19 incidents in which someone was killed.

The report recommended that agents should be prohibited from shooting at vehicles and should focus on getting out of the way of moving vehicles. It also recommended limiting deadly use of force against rock throwers and asked for changes to training which emphasizes cover and concealment or using protective equipment like screens to protect agents.

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