With little information available about most Border Patrol-involved shootings, civil trials offer a rare glimpse into what happens after an agent fires his weapon — as in the case of a teenager shot to death while trying to climb over the border fence.
The family of 19-year-old Carlos LaMadrid sued the U.S. government in a civil trial that ended last week. LaMadrid was shot by Border Patrol agent Lucas Tidwell on March 21, 2011 as he tried to climb a ladder to flee into Mexico after a high-speed chase by Douglas police. A judge is expected to make a decision in the case in the next few months.
Without a civil trial, the public typically learns little about agent-involved shootings — Tidwell’s name only came out through the lawsuit filed by LaMadrid’s family. But many details emerged during the trial: For example, Tidwell said he fired at a silhouette because he was under attack by a rock thrower. Vehicles and the ladder were moved immediately following the shooting. And after a agent-involved shooting, Border Patrol supervisors typically arrive almost immediately, and among other things, ask agents a series of eight questions.
The government argued that Tidwell, now stationed in New Mexico, feared for his life as three softball-size rocks were hurled at him, one cracking his windshield, and said LaMadrid was unfortunately in the line of fire.
CONVICTIONS, DISCIPLINE RARE
At least 10 people have died in Border Patrol-related shootings in Southern Arizona since 2010 and another five have been injured.
Nationally, there have been more than two dozen deaths. None of the agents involved have been convicted or publicly disciplined.
Locally, three agents have been criminally charged in more than 20 years, but in all three cases the agents were cleared.
- In 1992, then-agent Michael Elmer was charged with the murder of Dario Miranda Valenzuela, who was shot in the back west of Nogales, Arizona. The shooting was not reported until 15 hours later. Elmer was acquitted of second-degree murder in a state trial that year and in 1994 was found not guilty in a civil-rights trial.
- In 2005, agent Denin Hermosillo was charged with negligent homicide in the shooting death of Julio Cesar Yenez Ramirez, who was suspected of smuggling marijuana. The case was dismissed in January 2006.
- In 2007, agent Nicholas Corbett was tried for the death of Javier Dominguez Rivera in the desert between Bisbee and Douglas near the U.S.-Mexico line. After two hung juries, the Cochise County attorney dropped the charges. Corbett said Dominguez Rivera tried to smash his head with a rock, while prosecutors said the young man was kneeling to surrender when killed.
Since then, the county attorney’s offices in Pima and Cochise have declined to prosecute agents in four other cases, saying they couldn’t prove the killings were not justified. The Department of Justice concluded the same.
For families angry about what they see as a lack of justice, a civil suit is one of the few recourses they have.
Suing the government means cases are drawn out for years. LaMadrid’s trial ended more than four years after he died — and a final decision can take even longer if there’s an appeal.
“There is a vast and growing body of evidence that Border Patrol agents are simply not held accountable, even for egregious civil-rights violations,” said James Lyall, an ACLU attorney based in Tucson who is representing the family of Jose Antonio Elena Rodriguez, a Nogales, Sonora, teenager killed by a Border Patrol agent in 2012. “At the same time that an increasing number of Americans are demanding long-overdue police reforms, the federal government has been unwilling to hold Border Patrol agents to the same standards.”
Border Patrol officials and union representatives say agents use force only when necessary and that investigations are thorough.
“No Border Patrol agent goes out into the field looking to get involved in a critical incident or shooting,” said Shawn Moran, vice president of the Border Patrol Council.
But agents must be able to defend themselves, Moran said. They encounter dangerous situations that require split-second decisions “in circumstances that are tense, uncertain and rapidly evolving,” Border Patrol Chief Michael Fisher wrote in a 2014 memo to agents about the use of safe tactics and techniques.
“Border Patrol agents are among the most frequently assaulted law enforcement personnel in the country,” he wrote. Since 2007, there have been more than 6,000 assaults against Border Patrol agents resulting in numerous injuries and the death of three agents.
Agents have been assaulted with rocks 1,713 times since 2010, he said. Agents responded with deadly force 43 times, resulting in 10 deaths.
The Border Patrol and its parent agency, Customs and Border Protection, have come under increasing scrutiny for what many see as excessive use of deadly force and lack of oversight of the nation’s largest law enforcement agency. With 44,000 officers, CBP is larger than the FBI.
In 2013, an independent group of law enforcement experts found agents firing in frustration at rock throwers from across the border and in some cases stepping in front of moving vehicles.
In some cases, the report said, agents put themselves in danger when they could have moved out of range of rock throwers.
The general public underestimates the risk of rock-throwing, said Moran, of the Border Patrol Council. “Some of these rocks can kill you or seriously maim you.”
The Police Executive Research Forum reviewed 67 case files related to Border Patrol agents’ use of deadly force from 2010 to 2012 and concluded that it wasn’t clear whether CBP consistently and thoroughly reviewed every incident.
Moran called the findings of the report “garbage.”
“They come at it from metropolitan perspective,” he said, when “the Border Patrol is a completely different animal.”
James Tomsheck, CBP’s former head of internal affairs, told the Center for Investigative Reporting last year that at least a quarter of the Border Patrol-involved deaths were suspicious and that agency officials consistently tried to change or distort facts to cover up any wrongdoing by agents.
After the Police Executive Research Forum report, an internal investigation of the 67 shootings absolved agents of criminal misconduct in all but three cases, which are still pending, the Los Angeles Times has reported.
One of those cases, the Los Angeles Times reported, is the death of Jose Antonio Elena Rodriguez, the Nogales, Sonora, teen whose family says he was walking home when an agent shot through the border fence and across the street, hitting him in the back at least 10 times.
A Tucson federal judge ruled the family of the 16-year-old could sue the government, even if he was in Mexico when he was killed.
That’s one of several lawsuits filed by families. In 2011, the federal government agreed to pay $850,000 to the family of Dominguez Rivera over his 2007 shooting death, even after two juries couldn’t decide whether to convict the agent who shot him. There was no admission of guilt.
Earlier this year, U.S. District Judge James Soto — who will rule in LaMadrid’s case — awarded more than $500,000 to a man who survived a 2010 Border Patrol shooting. The agent, Abel Canales, had said he had no choice but to shoot because he saw the man make a rock-throwing motion.
But in his ruling Soto said Arizona law did not justify the agent’s use of force: “A rock is not as deadly an object as a gun and requires greater degree of certainty that the object will be used than the threat or perceived threat of a gun.” Soto also said Canales’ conviction for letting a drug load through a checkpoint undermined his credibility.
Families say they want justice, but get frustrated with the lengthy investigations by the Department of Justice.
“We don’t understand why they are taking so long,” said Chris Rickerd, policy counsel with the ACLU in Washington D.C. There should be better communication with the families, he said.
Moran, with the Border Patrol union, agrees.
“CBP is doing itself a disservice by not releasing information in a timely manner,” he said.
AFTER A SHOOTING
When a Border Patrol agent is involved in a shooting, multiple agencies come to the scene: local police, sheriff’s deputies, the Border Patrol’s critical incident team and the FBI.
In the 2007 trial of agent Corbett, his attorney complained about how the Cochise County Sheriff’s Office had conducted its investigation and tried to get the case dismissed because evidence was mishandled.
During LaMadrid’s trial, attorneys for the family said Tidwell and local officers immediately moved the Border Patrol Chevy Tahoe, the Chevy Avalanche LaMadrid was driving and the ladder he was trying to climb. Tidwell said he feared for his safety being so close to the fence and he followed his gut.
After another shooting by a Border Patrol agent last year, Pima County sheriff deputies, who were leading the investigation, wrote in their reports that agents became angry at detectives and that several of them seemed unaware of how an officer-involved shooting was investigated. In that case, an agent had shot at a fleeing man because he said the man made a movement someone would make while holding a gun with two hands.
Another case involved a Border Patrol agent shooting at a fleeing truck in the Tohono O’odham reservation after the agent said the truck rammed him. The driver of the truck, who was injured in the shooting, was charged with assaulting a federal officer with a deadly weapon but was cleared after a second trial.
The Border Patrol is taking steps to prevent future incidents:
- Agents have been reminded that they should seek cover or move back, when possible, from people throwing rocks and to seek alternatives to opening fire.
- The agency is implementing new training scenarios at the academy. During LaMadrid’s trial, an assistant U.S. attorney said the Border Patrol hadn’t taught Tidwell to shoot at elevated targets, which he said helps explain how Tidwell shot at the rock thrower on top of the fence and instead hit LaMadrid, who was lower on the ladder.
- It has made its use-of-force policies public and said it would start letting sector chiefs answer questions from the press and public about shootings.
- It is testing body cameras.
The agency’s use-of-force policies should emphasize agents’ primary responsibility to preserve life, said a recent report from a CBP advisory panel to review allegations of excessive force. It also recommended a focus on de-escalation techniques and quicker release of information to the media and the public.
Any training that makes it safer for agents is good, Moran said. But he said the union will oppose any restriction on Border Patrol agents’ ability to defend themselves.