Border Patrol faces little accountability: Shootings by agents are up, but few are held responsible; families and the public rarely learn the outcome of secret, complex investigations

Just two months after a Border Patrol agent shot her 16-year-old son in Nogales, Sonora, Araceli Rodríguez Salazar sensed silence spreading over the case.

"I'm tired of crying. I'm tired of waiting. I want justice," she said on a recent afternoon, standing outside her humble home on a downtown hillside.

If the pattern holds, she'll be waiting much longer.

Even as the number of shootings by agents increases, the system for holding them accountable remains complicated and opaque, leaving the public in the dark about the status of the cases, an Arizona Daily Star investigation has found. One Arizona case has remained secret and "ongoing" for almost three years.

Questions have sharpened after agents shot people who apparently weren't threatening them at least twice in Arizona over the last two years.

Still, agents get the benefit of the doubt from the public and prosecutors, and are rarely criminally charged. In the few cases when agents have been prosecuted in Arizona, they've won.

That may be because the shootings were justified, but the secrecy of the process means the public may never know.

As questions of accountability grow louder, shootings by Border Patrol agents continue - primarily in Arizona. In the last three years agents have shot at least 22 people nationwide. Nine of those cases have been in Southern Arizona - four in the last two months and two just last week.

Last Sunday, a Border Patrol agent in the Baboquivari Mountains killed an apparent illegal immigrant - 19-year-old Guatemalan Margarito Lopez Morelos - who, the agency said, struggled with an agent. On Tuesday, an agent southwest of Gila Bend shot and wounded a man who, the agency said, brandished a weapon.

Since January 2010, there have been at least six cross-border shootings by agents, including the one that killed Rodríguez-Salazar's son, José Antonio Elena Rodríguez. When killed, he was on a sidewalk across the 36-foot-wide street along the border.

Two people were on the border fence when agents arrived at about 11 p.m. Rocks flew, though police reports leave it unclear who threw them, and at least one agent fired into Mexico.

Elena Rodriguez was hit at least seven times - twice in the head and five times in the back. The walls next to him were pocked with bullet holes.

"What would have happened if a Sonoran police officer had opened fire and shot a 16-year-old walking along the street in Arizona?" asked Kat Rodriguez of the Coalición de Derechos Humanos, a human-rights advocacy group in Tucson. "We all know the response would be very different, and it shouldn't be."

agent ivie's death

Early on Oct. 2, Border Patrol Agent Nicholas Ivie cautiously approached a site east of Bisbee where a ground sensor had gone off. Two fellow agents approached from another direction.

In an apparent accident, Ivie fired at the other agents, striking one, the FBI and Cochise County Sheriff's Department reported. The agent who was struck fired back, killing Ivie.

Amid an outpouring of support for Ivie's family, some found a key aspect of the case troubling: Here was a case where an agent apparently didn't know what he was shooting at.

Border Patrol agents are taught to use deadly force only when they or someone else are threatened with death, agency spokesman Bill Brooks said.. However, officers everywhere must always have "target discrimination" and fire only at the person posing the threat, said Dave Klinger, an associate professor of criminal justice at the University of Missouri-St. Louis.

"If I've got a guy shooting at me, I don't get to send rounds downrange at the general area," said Klinger, who himself shot and killed a man when he was a Los Angeles police officer.

The same rules apply to rock-throwing, Klinger and others said. The closer the thrower, the more likely it poses an imminent threat.

On March 21, 2011, an agent shot and killed 19-year-old Carlos LaMadrid in Douglas. Local police had chased LaMadrid to the border fence, where a Border Patrol vehicle collided with the one LaMadrid was driving, Cochise County sheriff's reports show.

LaMadrid and a passenger began climbing a ladder friends had put against the fence, and at the same time someone atop the fence began throwing rocks at the agent. The agent fired and killed LaMadrid as he climbed the ladder. The rock throwers escaped into Mexico.

Cochise County Attorney Ed Rheinheimer said he has made a decision about whether to prosecute the agent in the LaMadrid case, but he is waiting until federal authorities make their call so as not to influence their decision.

who's in charge?

The FBI, Department of Homeland Security inspector general, the Border Patrol's critical incident team and the Customs and Border Protection Internal Affairs branch all may respond to any shooting by a Border Patrol agent.

The U.S. Attorney's Office oversees the investigation, and local agencies - such as a sheriff's department - may also investigate whether state laws were broken. In Elena Rodriguez's case, the local agency was Sonoran state police, who responded on their side of the border.

Who's in charge, and what happens from there? That's a tougher question. Even Jim Calle, a Tucson attorney whose job is to defend Border Patrol agents involved in shootings or accused of misconduct, can't pinpoint the process.

"I've been doing this for more than a decade, and it's still confusing to me," Calle said. "That's how the federal government operates. They're slow. It's opaque, and they (the investigations) are always difficult."

"There are times when the public never learns about the shooting, never mind the process," he added. "The one thing I am sure of is that every time an agent pulls a trigger, their conduct is critically reviewed, and it is really, really scrubbed hard for all the details to see if they've done anything wrong."

The families of those killed and others find it hard to believe the cases are well-investigated because they can't see it. One of the families stuck in the process is that of Ramses Barron Torres, killed on the Mexican side of the border fence in Nogales, Sonora, by a Border Patrol agent on Jan. 5, 2011.

An FBI spokesman said at the time that Border Patrol agents were trying to arrest drug smugglers when people started throwing rocks at them. Sonoran police said Barron Torres was climbing on the south side of the border fence when shot. It's unclear whether he was a rock thrower.
Now, 23 months later, he FBI says the investigation is ongoing.

Another case has been open even longer: Jorge Solis-Palma was shot on Jan. 4, 2010, after, agents said, he threw rocks at them. The Cochise County Attorney's Office cleared the agent two months later, but the FBI still considers it "an ongoing matter" almost three years later.

In the days after Barron Torres was shot, "there were reporters from here, reporters from over there," his mother, Zelma, said in Spanish. "After a few days, they disappeared. Up till now, I don't know anything."

names are secret

When a Tucson police officer or a Pima County sheriff's deputy shoots and kills somebody, the process is mostly transparent and typically quick.

Both agencies make it a rule to inform the public of the incident quickly and include the officer's name. The Border Patrol keeps the names of agents involved in shootings secret - to the point that LaMadrid's family got a court order to force the federal government to reveal the name of the agent who shot him so they could serve him with legal papers.

On the local level, two investigations of shootings occur.

In one, the local homicide department looks into whether the officer broke the law. Investigators pass their findings to the county attorney's office for a ruling on whether charges should be filed.
In the other investigation, internal affairs decides whether the officer followed department rules and regulations.

Those cases are typically wrapped up in two to six months, attorney Calle said.

The different ways the two levels of government respond is typical, said Klinger, the University of Missouri professor.

"The further away from the populace the seat of power is, the less accountability there is," he said. "For whatever reason, people haven't been making a big stink about federal use of deadly force."
In Border Patrol shooting cases, the investigation may be in an "ongoing" status long after FBI special agents have completed their work, said James Turgal, special agent in charge of the agency's Phoenix division. That may be because prosecutors from the county to the U.S. Attorney's Office to the Justice Department in Washington, D.C., are considering their options.

"Just because the FBI walks down to the U.S. Attorney's Office and presents a case, it doesn't mean we get an answer the next day," he said.

doubtful witnesses

FBI agents enter Border Patrol shooting cases impartially, Turgal said. But the way some cases proceeded left witnesses with doubt.

On June 7, 2010, Border Patrol agents in San Diego killed Anastasio Hernandez-Rojas as they were expelling him from the country into Tijuana. In a press release, San Diego police said agents had uncuffed Hernandez-Rojas and he became violent, causing an agent to use a taser to subdue him.
But witnesses say, and video recordings of the incident show, Hernandez-Rojas's hands were restrained behind his back and he was lying on the ground, screaming for help, as about a dozen agents stood over him, when he was tased and died. The PBS program "Need to Know" revealed the videotapes and some witness accounts in two shows this year.

On June 7, 2010, a Border Patrol agent shot and killed 15-year-old Sergio Hernández-Guereca in a concrete canal that separates Ciudad Juarez, Chihuahua, from El Paso. In a news release, the FBI said the agent fired when a group "surrounded the agent and continued to throw rocks at him."

Witness accounts and videos show that the agent was not surrounded and that apparently no more than one person threw a rock at him. Nevertheless, the FBI labeled the incident as an "assault on a federal officer."

In some cases, the aftermath of the shootings does not inspire witnesses' confidence in investigators. In both the San Diego and El Paso cases, witnesses who were crossing border bridges when the shootings occurred said they were hustled away and not questioned.

One American woman who watched the agent shoot Hernández-Guereca said in a deposition that she refused to leave the bridge despite a security guard shouting at her, and she spoke to investigators only after she insisted on calling 911 and later called the FBI.

"No one approached me and said, 'Listen, can you tell us what happened?'" Bobbie James McDow said in a sworn deposition taken as part of a civil lawsuit. "It was basically, 'Get off the bridge, get off the bridge, get out of here.' "

More recently, a Nogales, Ariz., resident whose 911 call started chain of events that led to the killing of Jose Antonio Elena Rodríguez across the border, said no one has interviewed him.

Marco Gonzalez, a radio announcer who lives along the border, called 911 the night of Oct. 10 to tell police that people had jumped the border fence and were moving through his yard and a neighboring street. Soon after, he saw border agents drive by, then heard gunshots.

Neither Nogales police nor Border Patrol agents nor the FBI contacted him.

Sanctions unlikely

An agent who shoots somebody is unlikely to face prosecution or even internal discipline.
The Border Patrol declined to say whether the agents in any of the six recent Southern Arizona shooting cases were reprimanded. "Administrative and disciplinary actions of our employees are not made public," agency spokesman Brooks said in an email.

Calle, the Border Patrol union's lawyer, said in shootings it's "exceedingly rare that an agent faces disciplinary consequences for their conduct."

That's partly because most shootings are legally justified, agents and attorneys said. They argue there are more shootings now largely because more border jumpers resist arrest.

Also, they say, agents enjoy an assumption that they're in the right, and they face a higher threshold for prosecution than the average citizen.

"Law enforcement officers are given the benefit of the doubt, not only by juries and American citizens, but inside DAs' and U.S. attorneys' offices," said Johnny Sutton, who was U.S. attorney for the western district of Texas from 2001 to 2009. "You're always loath to prosecute a cop because you understand they're putting their lives on the line every day."

As U.S. attorney, Sutton ruled many shootings by agents justified and denied prosecution, he said, but his office also put two Border Patrol agents in prison. In 2005, agents Ignacio Ramos and Jose Compean shot an unarmed drug trafficker who was running away. Their conviction and sentencing prompted a nationwide outcry led by television personalities. President Bush commuted their sentences on his last day in office.

Beyond the benefit of the doubt officers receive, their jobs make them less likely to be charged in the first place. Prosecutors must consider the likelihood of winning a conviction when taking on a case, and it's simply harder to win a case against a cop.

Cochise County Attorney Rheinheimer brought a second-degree murder case against Border Patrol Agent Nicholas Corbett in 2008, arguing Corbett's January 2007 killing of an illegal immigrant was unjustified and a crime. There were two trials, two hung juries and finally Rheinheimer dropped the case.

The Border Patrol agents union lambasted Rheinheimer for prosecuting, saying "he let undue influence from the Mexican government and the radical special-interest groups taint his decision-making ability."

Longtime Tucson civil-rights activist Isabel Garcia, an attorney, laid the blame for the loss on the public's misconception of the border area as a war zone.

"Even when we get what we should get - full prosecution - it's really hard to break that impunity," she said. "The public is very ignorant. They believe all the ugly stuff, so of course they give the agents full immunity."

If there's a next time, Rheinheimer said, he would factor in his failure to convict Corbett when deciding whether it's worth bringing charges against another agent.

That reality, he said, "is balanced against doing whatever is the right thing to do."

http://azstarnet.com/news/local/border/border-patrol-faces-little-accountability/article_7899cf6d-3f17-53bd-80a8-ad214b384221.html

Border Patrol agent suspected of smuggling drugs

PHOENIX (AP) -- A U.S. Border Patrol agent has been arrested after authorities say he used his patrol vehicle to smuggle drugs while on duty in southwest Arizona, according to a federal complaint.

Aaron Anaya was on patrol Sunday evening when he stopped along the international border, then loaded up several bundles of marijuana that had been dropped over the fence from Mexico, according to the complaint filed this week in federal court in Arizona.

Agents assigned to the Southwest Border Corruption Task Force had been conducting aerial surveillance in the area between Yuma and Wellton, about 185 miles southwest of Phoenix, when they spotted Anaya stop along the fence and retrieve the bundles, the complaint states. It does not say whether Anaya was the target of the initial surveillance or merely observed during the overall operation.

Authorities say the task force continued to track Anaya for several hours as he appeared to return to normal patrol duties.

The complaint says the agent was later arrested with nearly 147 pounds of marijuana found in three black duffel bags in his Border Patrol vehicle.

He is charged with possession with intent to distribute marijuana and carrying a firearm - his service weapons - while committing the crime.

Asked if he was willing to speak to investigators, Anaya responded with an expletive, then said, "You guys got me on video," before asking for an attorney, according to the complaint.

Anaya's federal public defender didn't immediately return a telephone message Tuesday. His telephone number wasn't listed. Union representatives for the Border Patrol's Yuma sector didn't respond to emails.

The FBI, which was part of the task force, declined to discuss the case.

Yuma Sector Chief Border Patrol Agent Stephen S. Martin said the agency will fully cooperate with investigators.

"While I am sorely disappointed by the alleged conduct of one of our own, I appreciate the efforts by our law enforcement partners and our own agents to uncover those that violate their oath of office, and hold them accountable for their actions," Martin said in a statement Tuesday.

http://www.azfamily.com/news/Border-Patrol-agent-suspected-of-smuggling-drugs-182057541.html

Border agent wounds man near Gila Bend: 2nd such incident this week, at least 9th since Jan. '10

A U.S. Border Patrol agent shot and injured a man Tuesday evening south of Gila Bend.

It was the latest in a series of shootings by border agents in Arizona - the second this week, the fourth since Oct. 2 and at least the ninth since January 2010.

In this case, U.S. Customs and Border Protection reported, Yuma Sector agents responded to possible bandit activity near a checkpoint on Arizona 85.

The agents came across two armed men about 14 miles southwest of Gila Bend, and at least one of the agents fired, hitting one of the armed men, the agency said in a news release.

That man was flown to a Phoenix hospital and is in stable condition; the other man, a Mexican national illegally in the country, was arrested. Agents found a handgun and an assault rifle at the scene, the news release said.

The FBI is investigating.

On Sunday at midday, an agent working in the southern Baboquivari Mountains on the Tohono O'odham Nation shot and killed a man whom the agency described as getting into an altercation with the agent.

Neither Mexican consular officials nor the Pima County Medical Examiner's Office knew the identities of either man shot in this week's incidents.

http://azstarnet.com/news/local/crime/border-agent-wounds-man-near-gila-bend/article_1da78974-695c-56ea-b1f3-c06f56cd44e3.html

National Guard troops' southwest border mission extended

PHOENIX - National Guard troops will be staying on the Southwest border, at least for a while longer.

Matt Chandler, spokesman for the Department of Homeland Security, said the Department of Defense has agreed to a one-year extension of the agreement to provide - and pay for - soldiers to help. The mission had been scheduled to end at the end of the year.

The soldiers, first deployed in 2010, have been in support roles. Many of those stationed in Arizona have been part of "entry identification teams," posted along the border to report illegal crossings to the Border Patrol.

This extended mission is smaller, involving just 300 soldiers along the border compared with the 1,200 who were first authorized as spotters and to help in Border Patrol and Customs Enforcement offices. But the effort to find border crossers this time continues to shift from the ground to the air.
"The National Guard's aerial support, which includes both rotary and fixed-wing aircraft, significantly enhances our ability to detect and deter illegal activity at the border," Chandler said. He said that is the kind of support needed by Border Patrol agents on the ground.

This shift also means lower costs.

The original deployment cost $140 million. A Department of Defense spokesman said the price tag for the current mission going forward will be $60 million.

Chandler said having soldiers as eyes and ears is paying off. He said that since March this support has resulted in Border Patrol apprehending nearly 20,000 people crossing the Southwest border illegally and seizing more than 100,000 pounds of marijuana.

The move met with approval from Gov. Jan Brewer, who has been openly critical of efforts by the Obama administration to secure the border. Gubernatorial press aide Matthew Benson called it "a step in the right direction."

"Until you get properly staffed up with Border Patrol, it's important that we keep a National Guard presence along the border," he said.

The most recent figures from Customs and Border Protection show there are about 21,400 Border Patrol officers, with close to 18,500 of them on the Southwest border. That compares with fewer than 10,000 nationwide in 2001.

Benson said he cannot say how many agents would be enough. But he said the decision to extend the program a full year, versus in three-month commitments, shows that the administration recognizes the need.

http://azstarnet.com/news/local/border/guard-troops-border-mission-extended/article_b93f65c5-6ed3-5e29-9c69-c6ca5aa84923.html