Bob Ortega and Rob O'Dell

The Arizona Republic

There have been no publicly disclosed repercussions

Rock-throwing incidents accounted for 8 of the 24 instances in which agents killed people

In vast majority of cases%2C agents responded to conflict with restraint

PHOENIX — A ghost is haunting Nogales.

His face stares out from shop windows. It is plastered on handbills and painted on walls under the shadow of the U.S.-Mexican border fence here. Candles and doves are stenciled onto steel posts of the fence itself in his memory, each a promise not to forget the night, 14 months ago, when teenager Jose Antonio Elena Rodriguez was shot 10 times in the back and head by one or more Border Patrol agents firing through the fence into Mexico.

Similar specters haunt other border towns in Arizona, Texas and California, with the families of the dead charging that Border Patrol agents time and again have killed Mexicans and U.S. citizens with impunity.

An Arizona Republic investigation has found Border Patrol agents who use deadly force face few, if any, public repercussions, even in cases in which the justification for the shooting seems dubious.

Since 2005, on-duty Border Patrol agents and Customs and Border Protection officers have killed at least 42 people, including at least 13 Americans.

These deaths, all but four of which occurred along or near the southwestern border, vary from strongly justifiable to highly questionable. CBP officials say agents who use excessive force are disciplined. But they won't say who, when, or what discipline, with the exception of a short administrative leave. In none of the 42 deaths is any agent or officer publicly known to have been disciplined or to have faced serious consequences.

Internal discipline is a black hole. There have been no publicly disclosed repercussions — even when, as has happened at least three times, agents shot unarmed teenagers in the back.

CBP leaders won't disclose the names of agents who use deadly force. They won't say, in any instance, whether deadly force was justified. The lack of transparency goes against the "best practices" that national police organizations recommend for dealing with deadly-force incidents.

The Republic found that the vast majority of Border Patrol agents and CPB officers respond to conflict with restraint. Even when facing potentially deadly force, most agents and officers don't turn to their firearms. But agents who killed mostly did so under circumstances virtually identical to hundreds of encounters that other agents resolved without lethal force and without serious injuries to either side.

In the past four years, rock-throwing incidents accounted for eight of the 24 instances in which agents killed people. The Border Patrol considers rocks deadly weapons that justify lethal force.

Border Patrol agents do face dangers. Of the 22 who died in the line of duty in the past nine years, most died in vehicle or training accidents. Four died in direct conflicts with aggressors — including one case in which Border Patrol agents fired on one another.

Of the 42 use-of-force fatalities, some — such as the five cases in which agents shot and killed people who fired at them first — provoked little dispute.

But in nine of the 24 use-of-force deaths since 2010, agents' accounts were contradicted by other witnesses or by other law-enforcement officers. In three cases, widely distributed videos conflicted with agents' reports of what happened.

Homeland Security's Office of Inspector General, in a recent report requested by members of Congress, found that many agents don't understand their use-of-force policy. Before the report was publicly released, DHS and CBP officials blacked out recommendations that agents being assaulted with rocks should respond with less-lethal alternatives.

Border Patrol Chief Michael Fisher insisted agents will continue to use deadly force against rock-throwers because rocks are potentially deadly weapons.

CBP, Homeland Security and Border Patrol officials declined repeated interview requests, agreeing only to a limited, off-the-record discussions from which the agency would approve a few statements. CBP officials declined to discuss the agency's lack of transparency on the record.

But acting Deputy CBP Commissioner Kevin McAleenan said the CBP doesn't control the release of information or pace of investigations, pointing to the FBI and Homeland Security.

Rocks across the border

On the night he died, Oct. 10, 2012, Jose Antonio Elena Rodriguez told his grandmother, Taide Elena, that he was going to walk to the nearby convenience store where his brother Diego worked, off Calle Internacional. That street runs below the border fence between Nogales, Sonora, and Nogales, Ariz.

"It's our neighborhood," Elena said. "He was a good boy. He'd come and go. I didn't think much about it."

As the boy neared Calle Internacional, police and Border Patrol agents across the border responded to a 911 call about men hoisting bundles of marijuana over the fence.

Nogales police K-9 Officer John Zuniga spotted two men trying to climb back into Mexico. Agents yelled at the men to come down, Zuniga wrote in his report. 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 car, Zuniga heard gunfire. He looked up and saw an agent at the fence. Based on ballistics reports from Sonora state police, at least one agent fired 14 bullets through the fence, killing Elena Rodriguez.

The Border Patrol hasn't released the incident report. It hasn't identified the agent or agents involved. In an initial statement, officials said agents were assaulted with rocks.

"After verbal commands from agents to cease were ignored, one agent then discharged his service firearm. One of the subjects appeared to have been hit," the statement said.

Butneither Zuniga nor another Nogales police officer there reported hearing any shouted orders. Three witnesses on the Mexican side said they heard no shouts before the gunfire.

Isidro Alvarado, a security guard, said Elena Rodriguez was walking about 20 feet ahead of him when two youths ran past them away from the fence. Then, he heard gunshots and saw Elena Rodriguez fall.

The CBP won't make public its use-of-force policy. Officials have said agents are authorized to fire when they face potentially deadly force, including rocks. However, if they can do so safely, agents must issue a verbal warning before firing, a Homeland Security memo states.

CBP officials declined to discuss the case, citing an ongoing FBI investigation.

Use of deadly force

Whether Elena Rodriguez was simply walking by or was throwing rocks, the circumstances were similar to those in scores of other alleged "rocking" incidents that agents resolved without firearms.

Incident reports suggest that lookouts in Mexico often throw rocks at agents to try to help drug mules or undocumented migrants get away. In 2012, rockings accounted for nearly half of the 555 assaults on agents reported by the CBP.

But agents rarely turn to deadly force. In the nearly 1,600 use-of-force incident reports reviewed by The Republic, agents resorted to gunfire about 4 percent of the time and killed people less than 1 percent of the time from 2010 through May 2012.

Eight times since 2010, Border Patrol agents killed people whom they said were throwing rocks at them, including six across the border. But in at least 160 other reported cases, agents resolved cross-border rock-throwing with less-lethal weapons that can fire, for example, balls filled with pepper spray. In those cases, no one died, and almost no one was seriously hurt — including the agents.

No agent has died of being hit with a rock. Agents reported injuries in three of those 160 cross-border rockings.

Agents who used those less-lethal weapons reported they were usually highly effective at stopping rock-throwers.

On Sept. 10, 2010, an agent being assaulted with rocks from the same street where Elena Rodriguez would be killed wrote that he used his pepper-spray ball launcher to saturate the area, firing "volleys of four to six rounds each near where the assailants were throwing the rocks. The rock throwers retreated from the area without further incident."

On April 5, 2011, another agent in the same area was trying to catch someone, "when I felt a rock strike me on my right shoulder blade. I immediately turned and started saturating the area with my pepper ball launching system as several more rocks were thrown at me. … (The) situation was put under control. There were no injuries."

The Border Patrol doesn't require agents to be trained in, to carry or to use any of the long-range less-lethal devices. They are strictly optional. CBP official McAleenan said the CBP is looking at giving agents more "less-lethal options in high-risk areas," among other possible changes.

In deadly use-of-force investigations, the CBP and the Border Patrol decline to identify the agents involved, often fighting in court to block the release of names even of agents being sued by the families of those killed. The FBI also redacts agents' names from any documents it releases. It can be difficult for the families to find out what happened or why.

Officials at the CBP and at the agents' union said agents have been disciplined for using excessive force. But they won't say who, how many or when.

"Agents are subjected to incredible scrutiny," union attorney Jim Calle said. "But the process is exceedingly opaque."

Versions and videos

Juarez, which borders El Paso, for several years was among the deadliest cities in the world, as drug cartels battled for control of a key smuggling route.

But Maria Guadalupe Guereca never worried about letting her son Sergio, 15, accompany his older brother Omar to the Paso del Norte border crossing. It seemed a safe place for Sergio to play or hang out with friends while his brother worked in maintenance on the bridge connecting the border towns.

Then, on June 7, 2010, Sergio was shot to death by Border Patrol Agent Jesus Mesa Jr.

Sergio and other youths had been running back and forth across the dry bed of the Rio Grande to the metal fence on the U.S. side. The FBI and CBP, without naming Mesa, said an agent fired in self-defense after he was surrounded by rock- throwers.

But several cellphone videos taken from the nearby bridge later surfaced. They appear to show a different story.

Mesa wasn't surrounded. He had tried to intercept four youths running back to Mexico across the riverbed, grabbing one as the others fled. In one video, some youths can clearly be seen making throwing motions. But Guereca isn't among them. He's visible, peeping out from behind a pillar beneath a train trestle. He sticks his head out; Mesa fires; and the boy falls to the ground, dead.

"Why kill him? What had he done?" asked Maria Guadalupe Guereca, looking down at the spot where her son died.

The Department of Justice said last year that there was insufficient evidence to prosecute Mesa on criminal or civil charges.

Attorney Cristobal Galindo, who represents Guareca's family, said he believes three separate videos show that the agent wasn't surrounded and that a Department of Justice inquiry indicated Sergio Guereca didn't throw any rocks. The family's suit was dismissed by a federal District Court judge in Texas, who said the court lacked jurisdiction because the victim wasn't a U.S. citizen and his death took place on foreign soil. The case is now on appeal.

To date, the fiercest criticism for the disconnect between agents' versions of what happened came after the May 28, 2010, death of Anastasio Hernandez Rojas at the San Ysidro border crossing south of San Diego. Officers said he was aggressive, even after being shocked with a Taser. But cellphone videos showed him begging for help, face-down on the ground, as a dozen agents shocked and struck him.

Sixteen members of Congress demanded that Homeland Security's Office of the Inspector General investigate excessive force by the CBP and Border Patrol in this and other cases.

Hernandez's widow, Maria Pugo, filed a wrongful-death suit. Her attorney, Eugene Iredale, demanded to see the videos from the CBP's cameras.

"San Ysidro is the busiest land crossing in the world. They have millions of crossings a year, and there are video cameras throughout the facility," Iredale said. "But, somehow, the video cameras weren't turned on, or they were facing the other way. I could say something cynical, but I don't need to. We have no video from any of the government cameras at the border."

The FBI's investigation remains open. The family's lawsuit is moving toward trial.

Inertia and change

There is limited pressure for change.

Mexico delivers a diplomatic complaint each time a Mexican citizen is killed by border agents. Mexico notes cross-border shootings violate an agreement between the countries.

But Mexico's complaints have had no apparent impact. In the U.S., a coalition of border and human-rights groups took family members of some of those killed to Capitol Hill in late November to push lawmakers for reforms.

"Authorities need to understand that this is not a case of a bad apple or two, it's a systemic problem," said Andrea Guerrero, co-chair of the Southern Border Communities Coalition. "This agency has a problem with accountability and transparency, and they don't see it."

Historically, the Border Patrol and CBP have come under less public pressure over use of force than local police forces, said Geoffrey Alpert, a professor of criminology at USC, "because you don't have the same kind of local constituency, the layer of citizen response, that local police forces have."

But that's changing, Alpert said. With the growing use of technology, it will be harder for questionable incidents to slip through, he said."But the numbers I've seen, even more than it protects the suspect, it protects the officer from false complaints."

On Nov. 25, 20 members of Congress asked to meet with acting CBP Commissioner Thomas Winkowski to discuss how to make the agency more transparent and accountable. That meeting is pending.

In Nogales, Araceli Rodriguez's job takes her downtown, near the border fence, every morning. Each time she sees a Border Patrol car or an agent on the U.S. side, she says, she asks herself if that might be the one who killed her son.

"If my son had been the shooter, if he had been the one who killed them, would they have waited a year in demanding justice against him? Would he still be free?" Rodriguez asked on the first anniversary of her son's death. "Of course not. ... The Mexican government would have ... extradited him immediately.

"They killed a child," she said, her voice trembling. "And they've done nothing about it. ... I don't want excuses. I want to know who killed my son. I want justice."

Contributing: Nick Oza of The Republic