Judge rebukes Border Patrol for destroying video evidence

A federal judge in Tucson issued sanctions Monday against the U.S. Border Patrol over the destruction of evidence related to an ongoing federal class-action lawsuit. 

U.S. District Judge David C. Bury lambasted the agency for its handling of evidence, including destroying digital video recordings that a coalition of immigration rights groups said show that the agency regularly breaks its own policies regarding the treatment of immigrants held in Southern Arizona BP stations. 

That includes regularly holding people for more than 24 hours in temporary facilities, and subjecting immigrants to freezing, overcrowded cells without access to food, water, medical care and legal counsel, activists said.

Bury ordered the agency to turn over all of the surveillance video from Southern Arizona detention facilities from the last four months, and warned attorneys for the agency that there could be "an adverse presumption" in favor of the plaintiffs because the videos were destroyed.

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

Bury wrote that the destruction of the video recordings was "at best, negligent and was certainly willful." 

"Defendants provide no explanation why, in response to Plaintiffs' notifications regarding litigation, the Defendants did not undertake the efforts initiated in response to the Court's August 14 Order," the judge wrote.

"The court's order affirms basic and fundamental rules of litigation, that parties cannot destroy potentially relevant evidence or ignore court orders. Those rules apply to the federal government just as they would to any other organization or litigant," said James Lyall, an attorney for the ACLU, which joined the case along with the American Immigration Council and the National immigration Law Center.

"Border Patrol is not above the law," Lyall said.

At the center of Bury's disapproval was the handling of digital video at eight Border Patrol stations after Bury ordered their retention as part of the civil lawsuit filed on behalf of three immigrants. 

On June 10, the Department of Homeland Security was sent a letter requiring Border Patrol to retain evidence related to the lawsuit. However, during an August hearing it became clear that the agency failed to keep video footage from Tucson sector stations from July 8 to Aug. 14. 

"The only video evidence has been destroyed of the conditions of confinement for two Jane Doe plaintiffs named in the action, who were detained at Tucson and Casa Grande stations," Bury said. 

Bury gave the agency two weeks to produce all existing video recordings from the last four months, along with electronic records. 

Border Patrol said that a raft of problems at stations kept the agency from keeping the video. 

Two stations could not retain video because their stations had "inoperable storage devices," and cameras at the Ajo Station do not record video. 

Border Patrol said that it had spent $10,000 to add temporary storage to keep video, and this would "require the additional expense of $5,000 every 90 to 120 days continuing until the video footage requirement is lifted." 

Despite this spending, the agency said that some upgrades were limited by system failures. 

At the Tucson Station, digital video recorders were "failing and constantly rebooting," while the Ajo Station backups simply didn't work. However, digital backups were possible at the Nogales Station, where DVRs still had more than five months of video, and the Brian A. Terry station in Naco had video going back to June 11. 

The agency defended itself in legal filings, writing, "Border Patrol has made, and continues to make, significant progress in implementing the emergency upgrade. Nonetheless, despite these efforts, technical issues and the limitations of the existing digital infrastructure in Tucson Sector have presented challenges that Border Patrol continues to work to overcome." 

Bury said he would not allow the agency to "take advantage of the missing evidence," however, he stopped short of granting that the videotapes would have demonstrated claims made by advocates. He noted that some facts in the case, including the temperature of holding cells, would not have been demonstrated by the video. 

Bury also issued a warning to the agency, saying that the court could reconsider the issue if the agency's lawyers tried to use the lack of video evidence to make their case.

"Plaintiffs would be severely impaired if forced to rely on incomplete and spotty evidence, and clearly an adverse presumption would then be appropriate," the judge said. "If at any point in time, Defendants seek to obtain such an advantage from the lack of video tape evidence, the Court will entertain applying an adverse inference and will allow Plaintiffs to reurge this sanction."

DHS and Customs and Border Protection have not responded to requests for comment regarding the decision, however, previously CBP has said that it does not comment on pending litigation.