The Justice Department is turning the border fence into a shield from prosecution for federal agents.
The department announced a pair of decisions on Friday afternoon — the timing was no accident — declining to prosecute two U.S. Border Patrol agents who killed people along the Arizona-Mexico line.
Neither decision was surprising: In both cases the agents said they were being attacked by rock throwers, and there was video evidence and witness accounts to back them up. Prosecutions of the agents who killed Carlos LaMadrid or Ramses Barron-Torres would probably have failed, because the agents had decent arguments, and history shows that juries want to believe them.
But the reasoning in the decision not to prosecute the agent in the Barron-Torres case is troubling, more for what it means for other cases than for this particular one. The 17-year-old was with a group of people on the Mexican side of the border fence in eastern Nogales, Sonora, when a U.S. agent shot and killed him about 3 a.m. on Jan. 5, 2011.
The department decided not to prosecute the agent — his name has not been released — for murder or manslaughter because it said he seemed to be legitimately defending himself. Video shows that Barron-Torres himself appeared to be throwing a rock just before he was shot and killed, the Justice Department said in its press release.
But the department’s explanation as to why it couldn’t pursue a case for civil-rights violations worries me: “The Department of Justice lacks jurisdiction to prosecute the agent who fired at Barron-Torres under the federal criminal civil-rights statute pertaining to use of force under the color of law, because the statute requires that the victim be in the United States when he was injured.”
That means U.S. agents who shoot across the border and kill people in Mexico must essentially be charged with murder or nothing at all.
“It is a very high burden,” Southern Arizona attorney Luis Parra said.
Cross-border shootings by Border Patrol agents used to be rare or non-existent. But along the entire U.S.-Mexico line, there was one in 2010, two in 2011 and three in 2012. This year, none so far.
The last one was a Southern Arizona case where the facts are much more damning for the agent — the October 2012 killing of Jose Antonio Elena-Rodriguez in downtown Nogales, Sonora. Parra represents Elena-Rodriguez’s family in a possible civil action over the killing.
In that case, too, the Border Patrol said people were throwing rocks when one or more agents fired shots. But the agent (or agents) who fired at Elena-Rodriguez were on a steep slope at least 20 feet above the teen, who was standing across a street.
The agent also was standing at the base of a 20-foot metal fence and would have had to shoot through its poles to hit him, meaning he deliberately fired through the poles, downhill and across the street. Elena Rodriguez was struck 10 times.
It’s hard to see how Elena-Rodriguez posed any danger to the agent or others from where he stood, but the agents clearly targeted him.
The Justice Department is investigating the case, and so is Parra, who shakes his head that agents can be prosecuted if they shoot someone within U.S. territory but not if they fire across the border.
“It seems to me that it’s a different standard on the border, and they can act aggressively,” Parra told me Tuesday.
Attorney Sean Chapman, who represents the agent who shot and killed Elena-Rodriguez, said the case is being heavily scrutinized.
“It’s clear the DOJ is looking much more closely than they may have 10 years ago,” said Chapman, who is a former federal prosecutor.
He also defends agents who have shot rock throwers: “What are they supposed to do? At some point, you have to defend yourself.”
But even if the feds are looking more closely, they’ve limited their options for prosecution. That opens the door — and raises the responsibility — for other agencies to pursue cases against agents.
The local county attorneys along the border may have to stop deferring to the federal prosecutors and investigate shootings by agents themselves. And so may the Mexican authorities, who perhaps have the greatest reason to pursue a case — the deaths happened on their soil.