U.S. ordered to pay $500,000 in Border Patrol shooting

Bob Ortega | The Arizona Republic

PHOENIX — A federal court ruling in a lawsuit over an Arizona border shooting may add to growing pressure on Border Patrol agents to make sure they can justify any use of deadly force, legal observers say.

U.S. District Court Judge James Soto, in Tucson, ordered the U.S. government on Friday to pay nearly $500,000 to Jesus Castro Romo, an undocumented migrant from Mexico who was shot and wounded by a Border Patrol agent on Nov. 16, 2010.

Government attorneys had argued that the shooting was justified because the former agent, Abel Canales, testified that Castro Romo was about to throw a rock when he shot him. But Canales' credibility was undercut by the fact that he was convicted, in a separate case, of accepting bribes from drug dealers to let them run loads through his checkpoint.

Canales' version of events also changed over time; initially, he'd told officials that he did not see Castro Romo pick up a rock just before he shot him.

Soto found Castro Romo's testimony more credible. The judge found that he "was not in the motion of throwing a rock at Canales," and that Canales' "use of force was not justified" or reasonable.

In his ruling, Soto said that Canales "committed an intentional battery against Castro."

More broadly, Soto ruled that the possibility someone confronting an agent may have a rock in hand, "as opposed to a much more lethal weapon, such as a gun, requires a greater level of certainty before deadly force can be justified as reasonable.

"Put more bluntly," the judge wrote, "a rock is not as deadly an object as a gun and requires a greater degree of certainty that the object will be used than the threat or perceived threat of a gun."

That ruling should have broader significance, said Texas attorney Bob Hilliard, who is representing families in three wrongful-death cases involving Border Patrol agents shooting at alleged rock throwers.

"The court has put some strength into the idea that you can't just say 'he had a rock in his hand so it was justified,' which was their successful default defense for many shooting deaths," Hilliard said. "He's saying you have a professional duty to exercise reasonable care. ... It still gives Border Patrol agents the power to defend themselves, and it gives Mexican nationals under arrest their constitutional protections."

The ruling is consistent with new rules on the use of deadly force that Customs and Border Protection issued last March. Among other changes, those rules require agents to avoid putting themselves in situations in which they have no alternative to using deadly force against rock throwers, and to seek cover or move back, when possible.

Since 2010, Border Patrol agents have killed at least nine people that they alleged were throwing rocks at them. As The Arizona Republic has reported, no agent has been disciplined in any of those cases, which include several incidents in which teenagers were shot in the back, and several shootings across the border.

Castro Romo could not immediately be reached for comment on the ruling.

His attorney, William Risner, said that other than the size of the award — he and his client had requested $13 million — "the judge found pretty much in our favor on virtually every contested issue."

According to medical testimony at the trial, the bullet damaged Castro Romo's spinal ligaments, leaving him in permanent pain, and making it difficult for him to walk or exert himself in any way, or hold a steady job.

At trial, the government had argued that Castro Romo, who had 14 prior encounters with Border Patrol agents, was working as a coyote for a group of undocumented migrants that two agents on horseback intercepted near Walker Canyon, west of Nogales, Ariz.

Canales claimed Castro Romo was aggressive, and twice tried to pick up rocks. Castro Romo denied picking up any rocks and said he'd crouched down just before he was shot because Canales was hitting him on the head with his reins. None of the other migrants witnessed the shooting.

But the day after the shooting, Canales, accompanied by a Border Patrol union attorney, told FBI agents, a Homeland Security inspector and an assistant U.S. attorney that Castro Romo had picked up a rock, dropped it, backed up a few steps and then picked up another rock.

Canales said he fired at Castro Romo from a crouch. But under questioning, he said that he didn't see Castro Romo pick up a rock the second time, and that he couldn't even see his hand.

At a later deposition, Canales revised his story, saying Castro Romo had used threatening language, had moved to his right to pick up the rock, and that Canales had waited until Castro Romo cocked his right arm back to throw before he fired.

Soto said he found Castro Romo's testimony "about the confrontation and shooting more credible."

The judge also said that, "even assuming Canales' testimony was true, his use of force was still not justified under Arizona law," and that despite the fact Castro Romo was in the country illegally "he did not provoke Canales to shoot him."

Assistant U.S. Attorney Mark Pestal, who represented the government, declined to comment on the ruling or on whether the government will appeal.