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Family of slain agent weighing legal action

How weapons got in border bandits' hands 'important,' lawyer says

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Single shot killed border agent
Border Patrol Agent Brian Terry, 40, was shot and killed in Arizona just north of the Mexican border after encountering what authorities said was a group of bandits known for robbing illegal immigrants as soon as they crossed the border. (Photo courtesy U.S. Customs and Border Protection/Detroit Free Press/MCT)

The family of slain Border Patrol agent Brian Terry has retained former Arizona U.S. Attorney Paul Charlton to determine if there is any legal action to take in connection with his slaying.

Charlton, Arizona U.S. Attorney from 2001 to 2007, said the Terry family asked him to review the facts surrounding the events that led to Brian Terry being killed on Dec. 14 in a shootout with suspected border bandits near Rio Rico.

Two Romanian-made assault rifles were recovered at the scene that are believed to have been sold to straw buyers in Phoenix and tracked into Mexico under a Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) Mexican gun-smuggling investigation, according to U.S. Sen. Charles Grassley, R-Iowa.

Grassley and Rep. Darrell Issa, R-Calif., have led an inquiry into the ATF operation, called "Fast and Furious," leading to a June 15 hearing of the House Committee on Oversight and Government Reform.

At that hearing, ATF special agent John Dodson told members of Congress on Wednesday that ATF agents in Arizona regularly allowed guns to be bought that they knew would be delivered to Mexican cartel members.

Charlton said he will be reviewing all the facts surrounding the events of Terry's death, including which weapons were used in the shootout and where they came from.

"How those weapons got there are obviously going to be very important to us," said Charlton, who is now a lawyer with the Gallagher & Kennedy law firm in Phoenix.

Charlton also will be following investigations being conducted in the House and Senate about the ATF operation, he said.

In written testimony submitted for the June 15 House hearing, Terry's mother, Josephine Terry, said the family hopes that ATF is forthcoming with all the information the panel is seeking.

"We ask that if a government official made a wrong decision that they admit their error and take responsibility for his or her actions," Josephine Terry wrote. "We hope that all individuals involved in Brian's murder and those that played a role in putting the assault weapons in their hands are found and prosecuted to the full extent of the law."

It's too early to know if there is cause for legal action - and if so, against whom it would be, Charlton said.

"Certainly, the Terry family would like things to move quickly," Charlton said, "but we have to exercise some amount of patience.

"We want to be careful about how we talk about this because we don't have all the facts. Once we have the facts, then we'll make a decision."

Asked if he'll be reviewing why Border Patrol agents shot beanbags first at the suspected bandits in the shootout, Charlton said, "We're looking at all the facts, and we'll use all of those to make our decision."

FBI search warrant requests filed in the U.S. District Court in Tucson show that two Border Patrol agents fired beanbags after the armed men refused commands to drop their weapons. The men returned with gunfire, mortally wounding Terry.

The documents say the group of illegal border entrants ignored the commands after agents confronted them at about 11:15 p.m. When the two agents fired beanbags, the migrants began shooting. Two agents returned fire, one with a long gun and one with a pistol, but Terry was killed in the gunfight.

The agents' initial use of the beanbags was not mandated by agency policy, which allows agents to determine whether to use deadly or non-deadly force based on the threat, Customs and Border Protection Commissioner Alan Bersin later said.

Terry and the other agents involved in the gunfight had M4 rifles and were authorized to use them, Bersin said.

One person has been charged in connection with the murder, and there are charges pending against other suspects whom officials are trying to locate, according to an indictment from the U.S. Attorney's Office unsealed in May.

Manuel Osorio-Arellanes, 34, of Sinaloa, Mexico, is facing second-degree murder charges, the indictment says. He is not believed to be the person who shot Terry.

Terry was buried in his hometown near Detroit on Dec. 22, and hundreds attended a January memorial service in Tucson.

Contact reporter Brady McCombs at or 573-4213.

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