Judge: Border Patrol destroyed videos of migrant detention centers

Migrants caught by the Border Patrol in southern Arizona have complained for years about being confined in frigid detention rooms. They even have a name for them: Las hieleras, Spanish for the freezers.

Migrants have also complained about dirty and overcrowded cells, being deprived of adequate food and water, and not receiving adequate medical care.

So in June, the American Civil Liberties Union and other groups filed a class-action lawsuit accusing the Border Patrol's Tucson sector of holding migrants in inhumane conditions in violation of the U.S. Constitution.

A federal judge then ordered the Border Patrol to save all video surveillance tapes dating back to June 10 at the eight holding facilities in the Tucson sector, one of the nation's busiest, in response to a request from the ACLU seeking evidence to prove its case.

But it turns out the Border Patrol has since "willfully" destroyed video recordings in direct violation of U.S. District Court Judge David C. Bury's order.

On Monday, Bury filed formal sanctions against the Border Patrol, ordering the agency to turn over to the court within 15 days all existing video recordings as well as database records going back to June .

He also admonished the Border Patrol for misleading ACLU lawyers by indicating the agency had "taken all required preservation steps" to save video recordings and for failing to tell the judge the agency was unable to comply with the order, apparently because video equipment at some stations doesn't have the storage capacity to save footage before it is recorded over.

"Instead," Bury wrote in his order, the Border Patrol "acted unilaterally to modify their responsibilities to preserve evidence required by law, rule and direct order of this Court."

What's more, Bury could not discern the extent of the destruction because he wasn't certain the Border Patrol had stopped destroying videos.

John Lawson, a Border Patrol spokesman, declined to comment on the order, citing the agency's policy of not commenting on pending lawsuits.

In June, the Border Patrol denied allegations that migrants are being mistreated. The agency said that on a daily basis agents "make every effort to ensure that those in our custody are given food, water, and medical attention as needed" while migrants are held in short-term facilities.

After migrants are processed, they are turned over to another agency or repatriated.

In court filings, Border Patrol attorneys say the agency currently doesn't have the storage or video capacity to comply with the judge's order, and Manuel Padilla, Jr., the sector chief, has instructed his staff to do "everything that needs to be done" to comply.

"The Tucson Sector Border Patrol personnel take their obligation to comply with the Court's order extremely seriously as well as their duty to protect officers, staff, and individuals detained at the facilities," Border Patrol attorneys wrote.

As of Aug. 26, according to court documents, the agency had spent $10,000 on new servers to store video footage at each of the eight Border Patrol stations in the Tucson sector -- but video footage was still only being stored at four of the eight stations.

That's because at two of the stations, Ajo and Sonoita, video feeds do not have recording capabilities and therefore there was no footage to store, according to court documents.

Technical difficulties had also prevented the Border Patrol from saving video at the Willcox and Casa Grande stations, which attorneys said the Border Patrol was working to overcome, according to court documents.

In the meantime, video footage at the Casa Grande station continued to be recorded over, court documents said.

The ACLU estimates the Border Patrol has destroyed "at least hundreds of hours" of surveillance video "and possibly more," said James Duff Lyall, one of the lawyers who filed the lawsuit.

"We believe this video tape evidence would have shown Border Patrol failing to follow its own policies and subjecting thousands of people including or clients to unconstitutional conditions," he said.

Bury wouldn't go that far. He noted that it was impossible to know whether the destroyed video recordings included any damning evidence, which is why he refused to grant the ACLU's request to order sanctions inferring that the missing videos had an adverse effect on the case.

But the judge warned that he will consider ordering more severe sanctions if the Border Patrol tries to use the lack of video-tape footage to it's legal advantage and the ACLU is forced to rely on "incomplete and spotty evidence."