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

Comatose Border Patrol Victim Spared Deportation, Removal from St. Joseph's (For Now)

by Stephen Lemons

Univision

Jose Gutierrez, who is in a vegetative state, with part of his skull removed

Saint Joseph is traditionally the patron saint of workers and immigrants. The latter is because the father of Jesus was forced to flee to Egypt to save the Christ child from Herod the Great's wrath. Once King Herod was dead, Joseph moved his family back to Israel, settling in Nazareth.

There is a large statue of St. Joseph outside of his namesake hospital in Phoenix, which was founded in 1895 by the Catholic Sisters of Mercy, but St. Joseph's Hospital and Medical Center does not always pity the poor immigrant as it should.

This morning, Shena Wilson, the wife of Jose Gutierrez Guzman, kept watch over her husband in the hospital's intensive care unit, under the guard of two U.S. Customs and Border Patrol officers. Not that Gutierrez was in any condition to escape their clutches.

At that time, Gutierrez was, for reasons unknown, not listed as a patient in St. Joseph's directory. Nevertheless, he lay comatose with part of his skull removed. He sustained Taser marks, a broken tooth, and a severe head injury after his run in with the Border Patrol near the San Luis, Arizona port of entry. He also has two black eyes.

No wonder CBP wanted to boot him from the country, stat.

According to New Times' sister paper LA Weekly, the CBP has stated that "the man struck his head on the ground during the incident." That's a lot of damage from a trip and fall. Unless, gravity received a little help.

Gutierrez had lived in the United States since he was nine, Wilson told me.

He was deported this past March 21, although he was a resident of Los Angeles, held a steady job as a film engineer, and fronted for LZ10, which the LA Weekly describes as a "popular Spanish-rock band." Wilson told me Gutierrez was desperate to get back to the United States, as Mexico is not his home and as his daughter was in the hospital.

But Gutierrez did not make it back to Los Angeles. After receiving substantial injuries while in CBP custody, he was hospitalized. Wilson's lawyer, Brian Lerner, told me the Border Patrol and the U.S. Department of Homeland Security wanted to again deport Gutierrez. But Lerner obtained a stay from the Ninth Circuit Court of Appeals, blocking this.

When I spoke with him, Lerner informed me that St. Joseph's wanted to remove Gutierrez in his vegetative state to Mexico, and that he was seeking further relief from the Ninth Circuit to prevent such action.

"Their words were that they were going to `transfer' him back to Mexico," Lerner said of his discussions with the hospital.

St. Joseph's spokeswoman Carmelle Malkovich e-mailed me the following statement after I called her for comment:

The situation related to our patient Jose Gutierrez continues to be very fluid. Earlier today we learned that the federal government will not be prosecuting Mr. Gutierrez, and he is no longer in their custody. Homeland Security personnel have left the hospital and he is now here as a regular patient.

This means that the federal authorities are no longer directing his location and gives us very different options for transitioning the patient to serve his long term care needs.

Because of this change, any plans to transfer the patient anywhere today have been cancelled.

We will continue to focus on the safety of the patient as he recovers. St. Joseph's is not licensed to administer long term medical care. We will work with his family to transition him to the next level of care. Mr. Gutierrez's condition has improved and he no longer needs acute care, which is the only type of care we are licensed to provide.

No other details have been confirmed at this time.

Suzanne Pfister, VP of External Affairs with St. Joe's, denied that the hospital wanted to remove Gutierrez on its own, and that it had just been following the lead of the CBP.

Lerner disputed this, stating that St. Joe's "backed down." He found Pfister's characterization "a little disingenuous."

He said that he'd been preparing to ask the Ninth Circuit to step in once more and halt any action by the hospital when he received word that St. Joe's had relented.

Lerner related that Gutierrez would likely be transferred to a California facility next week sometime.

He warned that if St. Joe's attempted to remove Gutierrez to Mexico, "I can get to the Ninth Circuit very quickly."

St. Joseph's is a not-for-profit facility. Malkovich at one point described it to me as "private." It's exempt from corporate taxes, and it receives untold millions in federal grants and Medicaid and Medicare reimbursements.

Nevertheless, St. Joe's has been known to remove from the U.S. severely ill folks who happen to be undocumented. Back in 2007, I wrote about the death of Joe Arvisu, a North High School student with leukemia who suffered a head injury, became a patient at St. Joe's and was ultimately shipped back to a hospital in Mexico, where he died.

Lerner believes St. Joe's would have put Gutierrez in an ambulance headed for Mexico, despite Gutierrez being in a coma, had he and Wilson not put up a fight.

He promised that "a lawsuit will go forward" on the matter once Gutierrez is back in California and his condition is stable.

CBP did not return repeated calls for comment. Can't say that I blame them. This was turning into a public relations disaster for both CBP and St. Joe's.

Local pro-immigrant advocacy group Puente deserves credit for alerting the local media and for protesting St. Joe's last night and this morning. Such activism and media scrutiny doesn't hurt. In this case, it likely helped, particularly in regard to St. Joe's actions.

http://blogs.phoenixnewtimes.com/bastard/2011/04/saint_josephs_wants_to_remove.php