The Washington Times - June 13, 2010, 03:29PM



*UPDATED 6/14/10 9:47 am 

Last Monday’s shooting of Mexican 15-year old  Sergio Hernandez on the southern border by a U.S. Border Patrol Agent in El Paso follows the death of an illegal alien, who resisted arrest by authorities and was tasered. Both events have caused further consternation for law enforcement officers involved in handling illegal immigrants. However, the incident in El Paso has sparked questions as to whether Mexican authorities tampered with evidence following the shooting. Mexican authorities told the Associated Press one version of the incident on June 9. However, on June 11 Mexican officials told the AP a very different story.

In a statement, the FBI said the El Paso incident happened at about 6:30 p.m. last Monday. A U.S. Border Patrol agent arrived to help colleagues responding to a report of suspected illegal immigrants being smuggled into the United States.

The statement also says that the agent detained one of the suspects while other individuals ran to Mexico’s side of the border and hurled rocks at the agent.

“This agent … gave verbal commands to the remaining subjects to stop and retreat,” the statement said. “However, the subjects surrounded the agent and continued to throw rocks at him. The agent then fired his service weapon several times, striking one subject who later died.”

A particular question that continues to stay around, though, is why did Mexican authorities initially say a shell casing was found near Mr. Hernandez’s body (on Mexico’s side) and that the autopsy concluded Mr. Hernandez was shot at close range, but they later told the AP that the border patrol agent fired his gun from the U.S. side? Chances are, the existence of a video (edited and full versions posted here) of the incident brought a new dimension to the case that Mexican authorities could not deny:

According to a June 9 AP report last week: (all emphasis in mine)

Hernandez was found 20 feet (six meters) into Mexico, and an autopsy revealed that the fatal shot was fired at a relatively close range, according to Arturo Sandoval, a spokesman for the Chihuahua state attorney general’s office. Mexican authorities said a .40 caliber shell casing was found near the body, suggesting that the Border Patrol agent might have crossed into Mexico to shoot the boy.

That would violate the rules for Border Patrol agents, who are supposed to stay on the U.S. side — and could open the agent to a Mexican homicide prosecution.

A U.S. official close to the investigation told the AP that authorities have a video showing that the Border Patrol agent did not cross into Mexico. In fact, the official said, the video shows what appear to be members of Mexican law enforcement crossing onto the U.S. side, picking something up and returning to Mexico. The official was not cleared to speak about the video and spoke only on condition of anonymity.”

Two days later on June 11, another AP article reported that Alejandro Pariente, Chihuahua state’s regional deputy attorney general, concluded the border patrol agent fired his weapon from the U.S. side, and Mr. Hernandez died on the Mexican side. :

“Prosecutors in the Mexican border state of Chihuahua have concluded Hernandez’s death was an intentional homicide and charges should be filed against the perpetrator, said Alejandro Parientes, the regional state deputy attorney general. However, state authorities have turned the case over to the federal prosecutors for further investigation and a final decision.

The federal Attorney General’s Office said there would be no public comment while the investigation continues.

Parientes said his investigation concluded the agent fired his weapon from the U.S. side of the border, but because Hernandez died on the Mexican side, Mexican courts have jurisdiction.

‘The homicide had its consequences in Mexican territory,” Parientes said. “What I can say is that we have enough evidence to file homicide charges in a Mexican court.’”

If this was the case, the .40 caliber shell casing reported in the previous AP piece would have remained on the U.S. side near the border patrol agent not by Mr. Hernandez’s body on the Mexican side. It should be noted that U.S. Border Patrol agents are issued the HK P-2000 side arm. The weapon shoots .40 caliber ammunition.

It’s my understanding that they [Mexican authorities] picked up the three shell casings from the agent [on the U.S. side] who fired, and they deposited them close to the body of the deceased to make it appear that the border patrol agent was in Mexico and shot the alien at close range,” explained T.J. Bonner, President of the National Border Patrol Council, when I interviewed him this weekend. Mr. Bonner’s union represents about 17,000 agents and support staffers.

While Mr. Bonner remains dubious of the heavily edited cell phone video Spanish language network Univison has distributed, as it jumps from  “time sequence to time sequence,” he points to where his border patrol agent was within the video:

“If you look at that video Univision has, the international boundary runs dead center through that river channel and you can clearly see that the border patrol agent is on the northern apron (the U.S. side) and the assailant is on the other side of the apron. It’s a river channel is what it is, and that apron is slanted at an angle. At the bottom portion of that…dead center to that middle of that is the international boundary,” he said. “Of course, the Mexican cop who tampered with evidence didn’t know at the time that there was a recording or that that it was on candid camera.”

In the meantime, the FBI has opened a civil rights probe against the agent who fired the shot at the Mexican national. U.S. Attorney General Eric Holder said last Thursday that the possibility of excessive force and violation of civil rights “will certainly be a part of what the investigators will look at” in the El Paso case. Mr. Bonner responded to the Attorney General’s investigation saying:

“The Attorney General decided to expand this into a civil rights probe investigation, which is very curious, because when you read the civil rights statute, it talks about any person basically in the United States. It ticks off five things. It says: in any state, territory, commonwealth, possession, or district, which describes every possible part of the United States, but that person was not in the United States.

The person was in Mexico. I think it’s a very interesting legal question whether you could pursue a civil rights law violation against an agent, even if there was a determination he acted improperly. I don’t think he acted improperly, when [he was] being assaulted with a deadly weapon, which a rock is.”

In a statement last Thursday, the Mexican Foreign Ministry said that the use of firearms to “repel attacks with stones represents a disproportionate use of force.”

Mr. Bonner takes issue with this saying:

“Through the history of law enforcement in America, [there are] ten documented incidents where law enforcement officers have died as a result of a rock or a brick. [Law enforcement officers] recognize that if that object hit you in the head, if it doesn’t kill you, at the very least, it will knock you unconscious allowing your assailant to walk over to you disarm you and execute you if they are so inclined.”

He continued saying this incident is not the first time border agents were assaulted by illegal aliens crossing the border from the south, and the use of anything but a firearm as self-defense would be futile:

“They (the border patrol) have responded in exactly the same fashion, and they have been cleared. The authorities have looked at it and said, ‘that’s a reasonable course of action, when you are being assaulted in that type of manner.’ That’s a reasonable course of action, when you are trying to defend yourself with the means you have at your disposal, and the only means you have is deadly force,” he said.

 “To those who say, ‘Well gee, why didn’t you use your pepper spray?’ Pepper spray doesn’t have an effective range that would have discouraged that assault. This assault occurred at a range of about 30 to 35 feet.” 

Last Wednesday, The El Paso Times reported the fifteen-year old had a history of smuggling immigrants across the border. Illegal immigration has heated up again, since Arizona passed a new stricter immigration law back in April, but Mr. Bonner does not believe Arizona’s SB 1070 triggered last Monday’s occurrence in El Paso.

“No, I think it has more to do with the historical one-way relationship between the two countries. Mexico screams bloody murder anytime any of our authorities take any action, and they accept no responsibility for the actions of their authorities, when the tables are turned,” he said.