The fatal shooting of a migrant in a remote canyon in February does not warrant prosecution, the Cochise County Attorney’s Office said after a review of the case.
There is insufficient evidence to contradict the explanation of the events by Agent Kendrek Bybee Staheli in the shooting death of Carmelo Cruz Marcos, the office said.
Staheli’s actions appear to be justified under Arizona law, Cochise County Attorney Brian McIntyre wrote in a May 6 letter to the Cochise County Sheriff’s Department.
Earlier news reports said the incident started after agents approached a group of migrants in Skeleton Canyon, about 30 miles northeast of Douglas, on Feb. 19.
The letter cites a report, saying two agents on horseback — Staheli and another agent, referred to only as Agent Tang — were tracking the group in the dark through a remote, treacherous landscape in a “potential two on ten apprehension scenario.”
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After apprehending three people in the group, Staheli fired shots when Cruz “picked up a large rock and appeared to be ready to strike him,” the letter says, adding there were no witnesses to the interaction between Staheli and Cruz, and no physical evidence at the scene to contradict the account.
The letter, however, goes on to say “two witnesses who have a familial relationship,” said they heard Staheli say something “unusual” before the shooting. Staheli’s reported emotional state after the shooting strongly contradicts this claim, the letter says.
Cruz, a 32-year-old father of three from Puebla, Mexico, was shot several times, according to the Pima County Medical Examiner’s report.
The scene of the shooting was not processed until the next day. Officials cited the lack of aircraft, personnel and the time of the shooting for the delay, the letter says.
McIntyre cited self-defense. In Arizona, the state is required to prove beyond a reasonable doubt that the shooter’s conduct was not justified. He also cited the state statute that says the use of deadly force is justified when the officer fears for his safety.
“Based upon the available evidence, the shooting was legally justified, and there would be no reasonable likelihood of conviction on any criminal charge if pursued,” McIntyre wrote.
The shooting has prompted at least one large vigil, and Cruz’s family is calling for an independent investigation of the incident by the FBI and has retained an attorney.
Border Patrol needs to answer questions about how the agent failed to de-escalate the situation, why the use of force was deadly, and why an investigation was not started until the next day, the family’s attorney said in an April 5 news release.
In the past, Border Patrol has investigated itself in use-of-force incidents, with their controversial Critical Incident Teams.
Earlier this year, the agency announced all such investigations would be overseen by the Office of Professional Responsibility. U.S. Customs and Border Protection announced last week that the teams would be disbanded by Oct. 1.
CBP’s Office of Professional Responsibility responded to 193 incidents involving in-custody and other deaths, vehicle pursuits and use of force resulting in serious injury or death last fiscal year, according to the agency’s 2021 employee accountability report.
Although there have been a few prosecutions sought, no Border Patrol agent has ever been convicted in an on-duty killing incident since the creation of the office in 2003.