Scathing report deems fatal Border Patrol shooting ‘highly predictable’

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U.S. Border Patrol agents had “an astonishing pattern” of shooting people who threw rocks at them under a vague use-of-force policy that led to the “highly predictable” death of a man along the U.S.-Mexico border in California, according to a law enforcement expert witness’ review of a fatal shooting.

In a report completed this week, a former Baltimore police commissioner and Justice Department official found a Border Patrol policy allowing agents to shoot their firearms based on the threat of a thrown object “highly suspect.”

 

“Virtually all thrown objects fail to meet the ‘Imminent Peril’ standard to justify use of deadly force, and in such circumstances, officers are trained to take evasive or defensive action, not escalate the encounter with gunfire,” Thomas Frazier wrote in his report, a copy of which was shared with Reveal. “In my experience I have never heard of, and do not know of, any law enforcement agency that considers a thrown projectile as per se ‘Deadly Force.’ ”

These are among the findings that have come tumbling out in a federal lawsuit brought by the family of José Alfredo Yañez Reyes, who was killed by Border Patrol Agent Dorian Diaz in June 2011 after he and another man tried to flee from agents into Mexico.

In his review, Frazier detailed nearly three dozen shootings involving rock throwers from 2005 through 2011, eight of which were fatal. Since 2010, more than 40 people have been killed in encounters with the Border Patrol.

Frazier’s review, which came at the request of the Yañez family, relied on the depositions of the chief of the Border Patrol, a former top Customs and Border Protection internal affairs official and agents involved in the shooting. It also included an extensive review of internal Border Patrol records, emails and policies; news reports; training documents and other items.

While echoing other reports and assessments about use of force by Customs and Border Protection personnel, some of which have been madepublic, Frazier’s report on the Border Patrol goes further, laying specific blame and offering a stinging critique. Frazier concluded that the agency’s top leader, Michael J. Fisher, failed to act and his “indifference is not explainable.” Fisher abruptly retired in November after serving as Border Patrol chief since 2010.

“A reasonable supervisor in Fisher’s position would have clarified the use of force policy, promoted proper safe tactics and techniques, provided scenario based training, and corrected the culture … all of which Fisher failed to do,” Frazier wrote.

In addition to failing to deal with the more frequent use of deadly force, Fisher also failed to properly address the growing public concern and political interest that followed, Frazier wrote. He took to task Fisher’s handling of the powerful and vocal Border Patrol union, with its “self-serving point of view,” and its efforts to “significantly affect practice.”

Although the agency revised its use-of-force policy in 2014, it did so months after Fisher publicly rejected recommendations issued by the Police Executive Research Forum, a Washington-based police advisory group and think tank, in a report that later became public.

Fisher said he did not agree with the consultant’s observations and countered the perception that Border Patrol agents shoot all the time, according to a transcript of his recent deposition testimony.

“I objected to a recommendation that was written in such a way that by policy it would restrict Border Patrol agents from using deadly force,” Fisher testified. “I would not agree to any recommendation, (by) PERF or anybody else, that would set up strict parameters and prohibitions basically telling agents by policy when they could or could not use deadly force.”

He blamed the news media for spreading inaccurate or false information and his own agency and the Department of Homeland Security for not responding to media requests about use of force.

“As I was reading and listening to the news, there was just a general lack of understanding about the organization, the environment in which the Border Patrol agents operated, and general guidance for use of force,” he said. “So in the absence of the truth, quite frankly, I think they were just making some stuff up or getting information from what I would consider bad sources.”

R. Gil Kerlikowske, commissioner of Customs and Border Protection, the Border Patrol’s parent agency, has pushed for more transparency and accountability since taking over the 60,000-strong agency in 2014. That effort has included new policies, additional training and a developing pilot program for body-worn cameras.

But that also has caused some internal tension. The Border Patrol has struggled with attrition in its ranks, namely due to resistance to reforms from the agents union, the National Border Patrol Council. There’s also been friction over the Obama administration’s policies on immigration and border enforcement, which spurred Kerlikowske this week to say during a House Appropriations Committee hearing that agents who didn’t like it should “look for another job.”

Shawn Moran, vice president of the Border Patrol union, said agents are demoralized because, in their view, the administration isn’t taking border security seriously. He said agents are leaving the agency for various reasons, but it often comes down to feeling under siege.

“They don’t feel the commissioner has their back,” he said. “I hear from guys, ‘Why risk our life and livelihood for doing this job?’ ”

He also called the Yañez lawsuit baseless.

“It’s one of the cleanest shoots I’ve ever seen,” he said. “This could be a textbook example of being in fear for someone else’s life, and you use force to save that person.”

Steve Shadowen, an attorney for the Yañez family, declined to comment.

The lawsuit, filed in U.S. District Court in San Diego, is one of several cases resulting from lethal confrontations with the Border Patrol now wending their way through federal courts. Some have been held up because of a lawsuit involving a fatal 2010 cross-border shooting into Mexico, in which the U.S. Supreme Court has been asked to reviewwhether constitutional protection against excessive use of force extends beyond the U.S. border. The solicitor general filed a response this week.

The argument under consideration by the Supreme Court involves a 15-year-old boy, Sergio Adrian Hernandez Guereca, who was shot in the head in June 2010 while standing in Juarez, Mexico, by Border Patrol Agent Jesus Mesa Jr., who was across the border in El Paso, Texas. The Justice Department declined to prosecute the agent in the shooting.

“If I were in Fisher’s shoes, the Hernandez incident would have given me a significant sense of urgency to reform Border Patrol use of force practices,” Frazier wrote in his recent report.

At least two of the stalled cases, including a federal murder prosecution, stem from allegations of rock throwing. One involves the 2012 shooting death of a 16-year-old Mexican boy, Jose Antonio Elena Rodriguez, who was shot repeatedly by Border Patrol Agent Lonnie Swartz. The other incident, also from 2012, involves Agent Christopher Boatwright firing from a patrol boat on the Rio Grande River in Laredo, Texas, into Mexico, killing 37-year-old Guillermo Arevalo Pedraza.

The revelations in the Yañez case, including Frazier’s report, could have wide-ranging implications that extend to the shootings involving Swartz, Boatwright and others along the Southwest border, some of which previously were covered by Reveal and other media outlets.

For instance, James F. Tomsheck, former chief of internal affairs at Customs and Border Protection, testified in a January deposition that before he was reassigned from his post in June 2014, one of his own agents was suspected of interfering with an investigation into a fatal shooting.

Tomsheck said Luis Valderrama, who joined internal affairs from the Border Patrol, was under investigation for possibly coaching a Border Patrol agent on what to say in an official interview to avoid prosecution for the 2010 death of Juan Mendez Jr., an 18-year-old Eagle Pass, Texas, resident who was shot twice in the back.

Tomsheck’s statement on the internal investigation further confirmed earlier reporting by The Center for Investigative Reporting, which alsoreported on the Mendez shooting and its aftermath in a September 2014 story. A civil lawsuit against the agent, Taylor Poitevent, is now at the U.S. 5th Circuit Court of Appeals, with oral arguments tentatively scheduled for late April.

Tomsheck, who retired from the agency in 2015 and has become an increasingly outspoken critic of Border Patrol officials, described a paramilitary culture in which leaders consistently viewed shootings as appropriate or, in police parlance, a “good shoot.”

Frazier assessed the culture issue as well, concluding that while Fisher’s predecessor as Border Patrol chief may have implemented the paramilitary culture, Fisher “did nothing to undo the culture that he inherited.”

“He merely perpetuated the problem of hyper-aggressive, provocative, and intense policing,” Frazier wrote.

Tomsheck’s testimony mirrors statements he made in a joint investigationby Telemundo and MSNBC in collaboration with Reveal. He said he reviewed videos of the El Paso shooting involving Mesa “that clearly demonstrated Sergio Hernandez was not throwing rocks at the time he was shot.” In his deposition, Tomsheck also referred to comments by Ronald Hosko, a retired top FBI official, who said the Border Patrol should have been under federal receivership. Hosko made similar remarks in an interview with Reveal as part of the Telemundo/MSNBC investigation.

“I think if a small police department had, or a midsized or a large police department had as many questionable use-of-force cases as (Customs and Border Protection) has, that (the Department of Justice) would be all over that,” Hosko said.

In the shooting that Frazier was asked to assess, two agents captured the other man while Yañez, back in Mexico, climbed the primary border fence that separates the countries. From there, agents said he threw at least one rock at them and a nail-studded board. The other man said Yañez only threatened to take video with his cellphone. Agent Dorian Diaz fired his pistol, hitting Yañez in the head.

“It is no surprise that Agent Diaz here justified his use of deadly force by claiming a rock was thrown, when he could and should have employed de-escalation techniques and considered the proper imminent peril standard,” Frazier wrote. “Agent Diaz’s actions were a highly predictable consequence of the lack of proper training and direction that a reasonable chief would have provided in these circumstances.”

 
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