October 18, 2012
by Bob Ortega
NOGALES, Ariz. - There was nothing unusual about the call to the Border Patrol and Nogales police on Oct. 10 to report two men climbing the border fence to bring drugs into the United States.
It also was not unusual that once Border Patrol agents arrived at the scene and attempted to arrest the men, who were now fleeing back to Mexico, one or more people began to hurl rocks over the fence at the agents from the Mexico side of the border.
The decision by one or more agents to open fire on the rock throwers, though, is another matter. It is the subject of furious disagreement between the Border Patrol and critics, including the American Civil Liberties Union and human-rights advocates, who say agents resort to deadly force too often. The Mexican government has condemned the shooting and called for a thorough investigation.
At least one Border Patrol agent fired shots through an opening in the fence. Moments later, Mexican police found the body of a 16-year-old boy on the ground in front of a medical office. Jose Antonio Elena Rodriguez had been shot eight times. Police investigators marked 11 bullet holes on the walls of the medical office.
Elena Rodriguez is the 18th person to be killed by Border Patrol agents since January 2010, with all but two of those deaths along the U.S.-Mexico border, says Vicki Gaubeca, director of the ACLU's Regional Center for Border Rights, in Las Cruces, N.M. Eight of those killed allegedly had been throwing rocks at Border Patrol officers.
In the most recent incident, there are discrepancies between the Border Patrol's version of events and accounts of witnesses on the Mexican side of the border. The Border Patrol said its agent fired at someone who was throwing rocks at the agents over the fence. Elena Rodriguez's family has said all the bullets entered the boy's body from behind.
The discrepancies may be resolved: A Border Patrol spokesman says video cameras on the border fence were in operation during the incident. Those recordings have been turned over to FBI investigators. Sonora's attorney general also has requested a copy from the Department of Justice, the attorney general's spokeswoman, Sandra Hurtado, said.
The FBI was on the scene hours after the incident and has collected reports from the agents and Nogales police officers. It is standard for the FBI to investigate deadly incidents involving the Border Patrol.
Use of deadly forceEven before Elena Rodriguez's death, the ACLU, several members of Congress and the Inter-American Commission on Human Rights had this year called for an independent, comprehensive investigation into Customs and Border Protection's policies on use of force.
ACLU attorney Chris Rickerd has criticized agents' actions in several deaths involving border agents, including a March 21, 2011, incident in which a Border Patrol officer in Douglas shot a 19-year-old U.S. citizen, Carlos Lamadrid, three times in the back as Lamadrid fled into Agua Prieta, Mexico. Rickerd said the Border Patrol should explain what disciplinary actions it takes when agents violate use-of-force policies.
The Border Patrol didn't respond by deadline to questions from The Republic about what disciplinary actions, if any, have been taken related to the 18 deaths.
Customs and Border Protection spokesman Michael Friel said the agency's use of force is based on the Department of Justice's policy. "Law-enforcement personnel are trained to use deadly force in circumstances that pose a threat to their lives, the lives of their fellow law-enforcement partners and innocent third parties," he said.
CBP wouldn't provide additional details on its use-of-force policy. But rocks are considered potentially lethal, and the agency typically has not disciplined officers for firing at rock throwers.
The agency doesn't classify rock-throwing incidents separately from other assaults on agents, but Friel said that such incidents are the most common type of assault along the border, numbering in the hundreds over the past three years.
No agents have been killed in rock-throwing incidents. Since early 2010, seven Border Patrol agents have been killed on duty: five in vehicle accidents; one, Brian Terry, was shot by drug smugglers in 2010; and one, Nicholas Ivie, was shot in a friendly-fire incident two weeks ago near Bisbee.
Lt. Carlos Jimenez of the Nogales Police Department said it's common for drug cartels to hire people as border lookouts "and to tell them if something goes bad to throw rocks to distract or deter law-enforcement officers ... They'll pay anybody willing to do it, youths, old people. They don't discriminate by age or gender."
Elena Rodriguez's mother, Araceli Rodriguez, insisted that her son would not have been involved in drug activity and must have been walking in the area when he was shot less than four blocks from his home.
"He wasn't a bad boy," she said tearfully in an interview at her home in Nogales, Sonora. A framed photograph of her son surrounded by flowers stood on a nearby table.
"They killed my little boy, and I want to know why. I want to know why they shot him so many times, why they shot him in the back," she said. "We want justice."
The Border Patrol declined to discuss details of the Elena Rodriguez case, citing the FBI investigation.
Responding to the sceneNogales, Ariz., police Officer Quinardo Garcia was the first of several officers to respond to a report, at 11:16 p.m. on Oct. 10, of two men climbing over the border fence from Mexico.
Garcia said in a report that he saw two men carrying bundles of marijuana on their backs, jumping down from the fence onto the Arizona side and running toward houses on a street facing the fence. He chased them into a driveway and lost sight of them.
Moments later, he said, the first of several Border Patrol agents arrived, along with a police K-9 officer, John Zuniga.
In his report, Zuniga wrote that he spotted the two men, who had dropped their bundles, trying to climb back over the fence into Mexico. After Zuniga and Border Patrol agents yelled at them to get down from the fence, Zuniga reported that he "heard several rocks start hitting the ground, and I looked up and could see the rocks flying through the air."
As he took his dog back to his vehicle, Zuniga heard gunfire. When he looked up, he saw an agent standing by the fence.
Neither Zuniga nor Garcia reported seeing shots fired.
"I then heard an agent say, 'There is one 10-7,' which means out of service or no longer alive," Zuniga wrote in the report.
The Border Patrol initially told the public that an agent had fired and someone "appeared" to have been hit. The agency has not said whether more than one agent fired shots.
Across the fence, in his home and medical office on Calle Internacional, a street that runs along the border, Dr. Luis Contreras Sanchez was surfing the Internet when he heard someone run past his window, followed by at least eight shots, he said in an interview with The Republic.
"I turned out the light, dove down and called the police," he said. "I didn't hear anyone screaming or yelling outside, or I'd have gone out."
Minutes later, police arrived, Contreras Sanchez said. He looked out and saw the boy face down on the sidewalk.
While Border Patrol officials said that the agent fired after rock-throwers ignored repeated orders to stop, Contreras Sanchez said he didn't hear such orders. The Nogales Police Department's reports don't mention orders for the rock-throwers to stop.
Actions criticizedTo some Border Patrol critics, even if Elena Rodriguez was throwing rocks, the agent's response was not justified.
"If you see photos of where he was standing and where he allegedly was throwing rocks, from that distance, how lethal could those rocks be? How defensible is it to shoot someone?" asks the ACLU's Gaubeca.
The fence where the incident occurred was rebuilt a year ago as part of a project to construct more than 650 miles of new barriers mandated by Congress to tighten border security.
The new fence covers a 2.8-mile stretch from one end of Nogales to the other. Built of parallel beams constructed from a triple layer of rebar, concrete and steel, the fence averages 18 to 20 feet in height and has an extra steel barrier on top to make it harder to scale.
When it was completed during the summer of 2011, officials said the fence would better protect border agents from rock-throwers because unlike the old sheet-metal fence, which was 10 to 12 feet high, agents can see through it.
It may have had an impact. Border Patrol officers in the Tucson Sector, which includes Nogales, reported 251 assaults for the fiscal year ending Sept. 30, 2011, a 40 percent drop from the previous fiscal year.
At the main border crossing in Nogales, the fence is at street level. Moving west, toward Contreras Sanchez's office, three blocks away, the fence climbs a steep hill on the U.S. side. Where Elena Rodriguez was shot, the base of the fence is 25 feet above street level; the top of the fence is roughly 45 feet above where the boy was shot.
The angle is such that it would be all but impossible for a rock-thrower to hit someone near the fence on the U.S. side.
Elena Rodriguez's family has hired a U.S. attorney, Luis Parra, to sue the Border Patrol.
Similar cross-border suits in recent years have been dismissed by U.S. courts. For example, 15-year-old Sergio Hernandez-Guereca was shot twice and killed by a Border Patrol officer in El Paso in June 2010, allegedly while throwing rocks as the agent arrested another youth.
The Department of Justice declined to prosecute the agent, saying he hadn't violated CBP's use-of-force policies or training. The department declined an extradition request by the state government of Chihuahua. Federal district courts twice dismissed suits by the family, alleging wrongful death and violation of the boy's rights. In both cases, U.S. District Judge David Briones ruled that U.S. constitutional protections don't apply because Hernandez-Guereca was a Mexican citizen and in Mexico at the time he was killed. An appeal to the 5th Circuit Court is pending.
David Shirk, director of the Trans-Border Institute at the University of San Diego, called the judge's ruling "a legitimate legal interpretation in the absence of any higher court ruling that suggests otherwise . . . It exposes one of the many challenges of the border region that are not well captured in national law."
He said firing a gun on one side of an international border doesn't necessarily create legal responsibility for the impact in the neighboring country.
Gaubeca said that while the Mexican government could ask to extradite the Border Patrol agent, the U.S. government can, as it has before, simply say no.
"How do you wrestle with the issue of causing harm on the other side of an international boundary, and what remedy is there for people who feel this is a wrongful shooting or an inappropriate use of lethal force?" Gaubeca asked.
This, she argues, is why it's particularly important for the Border Patrol to train its agents to defuse confrontations.
Since 2007, when the George W. Bush administration launched a major expansion, the Border Patrol has nearly doubled in size, to more than 21,000 agents. To recruit and quickly hire that many new agents, the Border Patrol reduced requirements, deferred background checks and omitted lie-detector tests that had been standard, and shortened training that officers receive, said John Carlos Frey, a filmmaker who this year produced a documentary on the patrol for the PBS program "Need to Know."
Rickerd, of the ACLU, said in a recent blog post that the Border Patrol should "make clear whether or not it abides by best law enforcement practices," in terms of the training it gives agents, whether it equips them with adequate protective gear that would reduce their need to use deadly force, and what plans it has to install dashboard-mounted and other cameras to record its agents' actions.
On Monday, as she waited to meet with state police for any news on the investigation, Araceli Rodriguez shared one of the many questions to which she'd like an answer: "Why didn't the Border Patrol agents just fire a warning shot in the air?"