Ther­mal de­vice used by trooper

Heli­copter shoot­ing on pickup came af­ter heat check was in­con­clu­sive.

Austin American-Statesman - - FRONT PAGE - By Brenda Bell and Jeremy Schwartz bbell@states­man.com jschwartz@states­man.com

A Texas De­part­ment of Pub­lic Safety heli­copter in­volved in the fa­tal Oc­to­ber shoot­ing of two men un­der a blan­ket in a pickup truck in South Texas used a ther­mal­imag­ing de­vice to try to de­ter­mine whether peo­ple were in the back of the truck be­fore shoot­ing, the Amer­i­canS­tates­man has learned.

The de­vice — stan­dard equip­ment on all DPS he­li­copters — can de­tect hu­man bod­ies by the heat they ra­di­ate in con­trast to their sur­round­ings. But this time the im­age was “not dis­tin­guish­able,” said DPS spokesman Tom Vinger.

De­spite the in­con­clu­sive read­ing, a DPS trooper aboard the heli­copter shot any­way in an at­tempt to dis­able the truck. Two Gu­atemalan im­mi­grants hid­ing un­der the tarp were killed and a third was wounded.

Although troop­ers had sus­pected the truck car­ried

drugs, the Gu­atemalan con­sul in McAllen said the men had “no guns, no drugs.”

Asked whether the DPS trooper who fired the shots, Miguel Avila, would have done so had the imag­ing equip­ment clearly shown peo­ple in the truck’s bed, Vin­ter said, “In ev­ery en­force­ment sit­u­a­tion, of­fi­cers on the scene are the only in­di­vid­u­als in a po­si­tion to … make a de­ter­mi­na­tion of whether force is jus­ti­fied and, if so, what level of force.”

The al­leged driver of the pickup, a 14year-old boy who was ar­rested af­ter the chase near La Joya in Hi­dalgo County and in­ad­ver­tently re­leased, was ap­pre­hended last week in McAllen when he was pulled over in a stolen ve­hi­cle, po­lice said.

The DPS has re­fused re­quests by the Amer­i­canS­tates­man for in­for­ma­tion on pre­vi­ous shoot­ing in­ci­dents dur­ing air­borne pur­suits, re­ject­ing mul­ti­ple open-records re­quests. “(T)he de­part­ment be­lieves th­ese records are con­fi­den­tial and must be withheld from pub­lic dis­clo­sure,” DPS lawyers ar­gued in a fil­ing with the Texas At­tor­ney Gen­eral’s of­fice seek­ing to pre­vent the records’ re­lease.

Hi­dalgo County District At­tor­ney Rene Guerra said he ex­pects to re­ceive a report this week from the Texas Rangers, the in­ves­tiga­tive arm of DPS, about the shoot­ings. Guerra has said he will take the case to a grand jury early next year. DPS Di­rec­tor Steven McCraw has also asked the U.S. Jus­tice De­part­ment to con­duct an “in­de­pen­dent in­ves­ti­ga­tion of the events sur­round­ing this mat­ter.”

DPS he­li­copters of­ten use ther­mal im­agers in pur­suits near the Mex­i­can bor­der, ac­cord­ing to in­ter­nal agency re­ports re­leased ear­lier this year by Wik­iLeaks, af­ter the com­puter hacker group Anony­mous ob­tained ac­cess to emails at Strat­for, an Austin com­pany that pub­lishes geopo­lit­i­cal anal­y­sis.

The re­ports said air crews on numer­ous oc­ca­sions had used the tech­nol­ogy to fer­ret out sus­pected il­le­gal im­mi­grants and drug run­ners hid­ing in veg­e­ta­tion along the Rio Grande, run­ning through canals or hid­ing in the woods near U.S. Bor­der Pa­trol check­points. On at least one oc­ca­sion, troop­ers used a ther­mal im­ager to find mul­ti­ple sub­jects hid­ing in the bed of a speed­ing pickup dur­ing a night­time pur­suit, ac­cord­ing to the leaked doc­u­ments.

There is de­bate over how use­ful the de­vices are dur­ing the day. In its pro­mo­tional ma­te­ri­als, aimed at law en­force­ment agen­cies, Wil­sonville, Ore.-based man- ufac­turer FLIR states, “Ther­mal imag­ing cam­eras do not only pro­duce a clear im­age in to­tal dark­ness, they are also ex­tremely use­ful dur­ing day­light. Ther­mal con­trast is ex­tremely dif­fi­cult to mask.”

But ac­cord­ing to Kevin Means, the au­thor of Tac­ti­cal Heli­copter Mis­sions, a guide for law en­force­ment agen­cies, and long­time pi­lot with the San Diego Po­lice De­part­ment, it would have been dif­fi­cult for the DPS crew to pos­i­tively iden­tify the peo­ple hid­den in the truck as it sped along a ru­ral road out­side the town of La Joya in midafter­noon.

On a hot day — the high was 94 de­grees — it’s also harder to dif­fer­en­ti­ate body heat from nearby ob­jects, he said. And while ther­mal im­agers can de­tect im­ages be­hind fab­ric (and metal walls), it can only do so if bod­ies are press­ing against the fab­ric, Means added.

“You would really have to be on your game,” Means said. “It would have taken a very, very ex­pe­ri­enced (op­er­a­tor) to try to in­ter­pret what was un­der a tarp. It’s a bor­der­line-un­rea­son­able ex­pec­ta­tion.”

To law en­force­ment of­fi­cials and ex­perts out­side of Texas, the DPS pol­icy of per­mit­ting troop­ers to fire weapons from he­li­copters dur­ing high-speed pur­suits is so dan­ger­ous that it doesn’t mat­ter if spe­cial­ized imag­ing equip­ment is used.

“What rel­e­vance does ther­mal imag­ing have? What­ever it re­vealed or didn’t re­veal is ir­rele- vant,” said An­drew Scott III, a former po­lice chief in Boca Ra­ton, Fla., who now owns a con­sult­ing firm spe­cial­iz­ing in po­lice prac­tices and pro­ce­dures, in­clud­ing pur­suit poli­cies.

“Never have I heard of law en­force­ment us­ing he­li­copters to dis­able a ve­hi­cle. It’s not a po­lice prac­tice any­where, and I travel all over the coun­try. Ob­vi­ously you have a greater chance of an er­rant bul­let strik­ing an in­no­cent by­stander — or the sub­ject in the ve­hi­cle, who may have com­mit­ted no crime.”

Scott, who said he has pro­vided ex­pert tes­ti­mony on both sides of law­suits in­volv­ing po­lice ac­tions, said a safer course to take when of­fi­cers are in hot pur­suit of a ve­hi­cle is usu­ally to back off.

“Study af­ter study has shown that if pur­suit is dis­con­tin­ued, the ve­hi­cle will slow down within 30 to 45 sec­onds and the oc­cu­pants will bail out,” he said, adding that they can be ap­pre­hended then.

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