Lethal force, no charges on bor­der

An in­ter­nal in­quiry ab­solves Bor­der Pa­trol agents in dozens of shoot­ing in­ci­dents, in­clud­ing 19 fa­tal­i­ties.

Los Angeles Times - - FRONT PAGE - By Brian Bennett

WASH­ING­TON — A U.S. Bor­der Pa­trol agent who killed an un­armed 15-yearold Mex­i­can boy by shoot­ing him in the face af­ter a rock­throw­ing in­ci­dent on a bor­der bridge to El Paso in 2010 was re­cently cleared of wrong­do­ing by the agency’s in­ter­nal af­fairs of­fice.

So was a Bor­der Pa­trol agent who shot and killed a 17-year-old Mex­i­can who threw rocks from the Mex­i­can side of the bor­der fence near No­gales, Ariz., in 2011.

In­ter­nal af­fairs also cleared an agent who shot and killed a 19-year-old U.S. cit­i­zen as he climbed over a bor­der fence into Mex­ico near Dou­glas, Ariz., in 2011. Agents said the man was seek­ing to flee af­ter driv­ing a nar­cotics-laden truck into a Bor­der Pa­trol ve­hi­cle.

In all, an in­ter­nal in­ves­ti­ga­tion of 67 shoot­ing in­ci­dents, which left 19 peo­ple dead, ab­solved agents of crim­i­nal mis­con­duct in all but three cases, which are still pending. The re­view was com­pleted last month.

None of the agents in­volved has been charged with a crime, said An­thony Triplett, who helped di­rect the re­view at the of­fice of in­ter­nal af­fairs for U.S. Cus­toms and Bor­der Pro­tec­tion, the par­ent agency of the Bor­der Pa­trol.

Only two agents faced dis­ci­plinary ac­tion. Both re­ceived oral rep­ri­mands.

Crim­i­nal charges are still pos­si­ble in the three pending cases, of­fi­cials said. Pros­e­cu­tors in the Jus­tice Depart­ment’s civil rights di­vi­sion have been in­ves­ti­gat­ing those lethal shoot­ings, all from 2012, since they oc­curred.

The agents in those three cases are still con­duct­ing armed pa­trols on the bor­der, of­fi­cials said.

Crit­ics along the South­west bor­der and in Mex­ico long have ar­gued that the Bor­der Pa­trol, the fed­eral gov­ern­ment’s largest law en­force­ment force, op­er­ates with lit­tle trans­parency or ac­count­abil­ity in cases in­volv­ing pur­ported abuses.

The agency’s broad ap­proval of its own record in scores of shoot­ing cases, de­spite vows by the Obama ad­min­is­tra­tion to crack down on agents who use ex­ces­sive force, is un­likely to change that per­cep­tion.

“We are deeply dis­ap­pointed” with the lack of ac­tion, said Juanita Molina, ex­ec­u­tive direc­tor of Bor­der Ac­tion Net­work, a hu­man rights or­ga­ni­za­tion based in Tucson. “When you have some­one throw­ing rocks and some­one re­spond­ing with lethal force, it is just not pro­por­tional.”

“Turn­ing the page doesn’t mean bury­ing the past,” said Chris Rick­erd, a bor­der se­cu­rity ex­pert at the Amer­i­can Civil Lib­er­ties Union in Wash­ing­ton. “There is no as­sur­ance to bor­der res­i­dents that agents who have used ex­ces­sive, im­proper lethal force aren’t on the job in their com­mu­ni­ties.”

Ad­min­is­tra­tion of­fi­cials

say they are determined to re­store public trust in the Bor­der Pa­trol de­spite its tra­di­tion of closing ranks around its para­mil­i­tary cul­ture.

Last month, Cus­toms and Bor­der Pro­tec­tion made it pos­si­ble for peo­ple to file writ­ten com­plaints against of­fi­cers in Span­ish for the first time. The move came af­ter pres­sure from ac­tivists who said the Bor­der Pa­trol de­lib­er­ately made it dif­fi­cult to file com­plaints.

Un­like do­mes­tic po­lice de­part­ments, the 21,000mem­ber Bor­der Pa­trol re­leased al­most no public in­for­ma­tion about shoot­ings, in­clud­ing the out­come of its in­ves­ti­ga­tions, un­til re­cently. That prac­tice has started to ease slightly as su­per­vi­sors have been granted more lat­i­tude from head­quar­ters to de­scribe in­di­vid­ual in­ci­dents.

The in­ter­nal af­fairs re­view was started in July af­ter an ear­lier study of the same 67 shoot­ing cases by an in­de­pen­dent group of law en­force­ment ex­perts found a pat­tern of agents fir­ing in frus­tra­tion at peo­ple throw­ing rocks from across the bor­der, as well as agents de­lib­er­ately step­ping in front of cars ap­par­ently to jus­tify shoot­ing at the driv­ers.

That study by the Po­lice Ex­ec­u­tive Re­search Fo­rum, a non­profit re­search and pol­icy or­ga­ni­za­tion in Wash­ing­ton, crit­i­cized the Bor­der Pa­trol for a “lack of dili­gence” in in­ves­ti­gat­ing its deadly in­ci­dents.

The Bor­der Pa­trol did not give a copy to Congress un­til the Los An­ge­les Times Wash­ing­ton Bureau dis­closed its con­tents in Fe­bru­ary 2014.

In re­sponse, R. Gil Ker­likowske, com­mis­sioner of Cus­toms and Bor­der Pro­tec­tion, or­dered new lim­its on when Bor­der Pa­trol agents were per­mit­ted to fire their weapons and re­vamped weapons train­ing. He also re­moved the long­time head of in­ter­nal af­fairs and cre­ated an in­ter­nal panel to re­view in­ci­dents of deadly force.

He also tapped an FBI agent, Mark Mor­gan, to tem­po­rar­ily lead the of­fice of in­ter­nal af­fairs and to re­view the 67 cases, which date from Jan­uary 2010 to Oc­to­ber 2012. Be­fore he re­turned to the FBI in De­cem­ber, Mor­gan had helped iden­tify cases with gaps, a lack of wit­ness state­ments or other dis­crep­an­cies.

Sixty-three cases were sub­se­quently cleared. Three oth­ers are with the Jus­tice Depart­ment. Dis­ci­plinary ac­tion is still pos­si­ble in the fi­nal case.

Last Mon­day, Ker­likowske named a new head of in­ter­nal af­fairs. Matthew Klein spent 26 years in the po­lice depart­ment that serves Wash­ing­ton, D.C., and he over­saw deadly force in­ves­ti­ga­tions when the depart­ment was fol­low­ing a fed­eral man­date to im­prove its treat­ment of cit­i­zens.

In an in­ter­view, Klein said he wanted the Jus­tice Depart­ment to de­cide more quickly whether to bring charges in bor­der shoot­ings.

“We would pre­fer a faster res­o­lu­tion,” Klein said.

He said he would bring up the three pending cases with Jus­tice Depart­ment lawyers.

Un­til re­cently, in­ter­nal af­fairs of­fi­cers were not per­mit­ted to begin crim­i­nal in­ves­ti­ga­tions of Cus­toms and Bor­der Pro­tec­tion of­fi­cers and agents. Jeh John­son, sec­re­tary of Home­land Se­cu­rity, ex­panded their author­ity last year, and Klein said the new pow­ers should al­low them to in­ves­ti­gate “more com­pletely.”

Janet Napoli­tano, who headed Home­land Se­cu­rity from 2009 to 2013, said Fri­day that she sought to take on the spate of bor­der shoot­ings dur­ing her ten­ure. She ex­pressed frus­tra­tion that some of the cases were still pending.

“I think part of it was just the civil rights di­vi­sion is only so big and it can take that long,” said Napoli­tano, who now heads the Uni­ver­sity of Cal­i­for­nia sys­tem. “I would say that ide­ally, yes, those cases would move more quickly.”

Napoli­tano would not dis­cuss spe­cific lethal-force cases be­cause she is a de­fen­dant in mul­ti­ple law­suits brought by fam­i­lies of peo­ple killed by Bor­der Pa­trol agents.

The three cases still un­der in­ves­ti­ga­tion at the Jus­tice Depart­ment in­volve three Mex­i­can men who were shot and killed from across the bor­der.

In one, Bor­der Pa­trol agents re­peat­edly shot at Juan Pablo Perez San­til­lan, 30, as he stood watch for a group of mi­grants cross­ing the Rio Grande il­le­gally near Brownsville, Texas, in July 2012.

Ac­cord­ing to a law­suit his fam­ily filed in U.S. Dis­trict Court in Texas, an agent used a high-power scope on his ri­fle to aim at Perez San­til­lan and fired at least five times, hit­ting him in the chest.

Af­ter Perez San­til­lan’s brother Damien pleaded for help, one agent shouted back, “Que se muera el perro,” mean­ing “Let the dog die,” the law­suit states. He died at a hos­pi­tal.

Two months later, a Bor­der Pa­trol agent in an air­boat shot and killed Guillermo Arevalo Pe­draza, 37, in a park across the Rio Grande from Laredo, Texas. The agent later said he had been pelted with rocks from shore.

Wit­nesses told the Los An­ge­les Times last year that Arevalo was at a fam­ily bar­be­cue.

That Oc­to­ber, an agent in No­gales, Ariz., shot through a bor­der fence af­ter a rock­throw­ing in­ci­dent and killed Jose An­to­nio Elena Ro­driguez, 16.

The of­fi­cial in­ci­dent re­port says the agent fired 15 times.

The of­fi­cial au­topsy says Ro­driguez was hit eight times in the back.

Brian Bennett

CROSSES MARK the spot where two chil­dren drowned in the Rio Grande near where Guillermo Arevalo Pe­draza, 37, was shot and killed in 2012 by a Bor­der Pa­trol agent in an air­boat. Wit­nesses said Arevalo was at a fam­ily bar­be­cue when he was shot.

Va­le­ria Fer­nan­dez As­so­ci­ated Press

AT A CHURCH in No­gales, Mex­ico, a poster of Jose An­to­nio Elena Ro­driguez, who was shot through a bor­der fence and killed by a Bor­der Pa­trol agent.

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