- The Washington Times - Wednesday, March 9, 2011

Department of Homeland Security Secretary Janet Napolitano told a congressional panel Wednesday that U.S. Border Patrol Agent Brian Terry and his fellow agents were not under orders to refrain from using lethal force in a December gunbattle near the Mexican border that resulted in Mr. Terry’s death.

Testifying to the Senate Judiciary Committee, Miss Napolitano said agents are allowed to use lethal force “if you are under threat of serious injury or death.” She said she herself had asked whether the four agents involved in the Dec. 14 shootout with bandits on the border in Arizona had their hands tied by orders, and she said the answer is “absolutely not.”

“Our lethal force policy is the same as virtually every law enforcement agency in the country — that is, if you are under threat of serious injury or death, you may use lethal force,” Miss Napolitano said.

Court documents say that at least some of the Border Patrol agents shot nonlethal beanbag rounds at the bandits, who returned fire with real bullets. Agents only then fired back with live ammunition, and Mr. Terry was killed in the exchange.

Miss Napolitano declined to talk about reports that some of the agents were only armed with beanbag rounds. She said the ongoing investigation meant she could not comment on such details.

**FILE** Homeland Security Secretary Janet Napolitano (Associated Press)
**FILE** Homeland Security Secretary Janet Napolitano (Associated Press) more >

Sen. Jon Kyl, Arizona Republican, said if some agents were armed only with beanbag rounds, then those agents wouldn’t have had the ability to respond with lethal force.

He pressed for a release of more information to help assuage concerns.

“You can understand the concerns of the family,” Mr. Kyl said.