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.
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.
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
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
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.
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.
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
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.
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
"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.
same rules apply to rock-throwing, Klinger and others said. The closer
the thrower, the more likely it poses an imminent threat.
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?
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
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
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.
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.
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
a Tucson police officer or a Pima County sheriff's deputy shoots and
kills somebody, the process is mostly transparent and typically quick.
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
On the local level, two investigations of shootings occur.
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.
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."
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
"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.
agents enter Border Patrol shooting cases impartially, Turgal said. But
the way some cases proceeded left witnesses with doubt.
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
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
"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
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
Neither Nogales police nor Border Patrol agents nor the FBI contacted him.
An agent who shoots somebody is unlikely to face prosecution or even internal discipline.
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."
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."
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.
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.
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."
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
"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."