7-Year Delay In Border Patrol Use-Of-Force Case Is Emblematic Of A Larger Problem

  • September 19, 2019

September 6, 20194:23 PM ET

Heard on All Things Considered

A seven-year delay in the investigation of a controversial shooting by a Border Patrol agent of a Mexican national is emblematic of a larger problem when federal officials investigate these cases.

ARI SHAPIRO, HOST: It's been seven years since a Border Patrol agent shot and killed a Mexican national standing on the southern bank of the Rio Grande. The shooting death led to changes in the Border Patrol's use-of-force policy, but the investigation of the incident is still incomplete. As NPR's John Burnett reports, the delay is emblematic of a larger problem when the federal government investigates a death on the border.

JOHN BURNETT, BYLINE: This is the first time Priscila Arevalo has come to the riverside since her father was killed here by a Border Patrol agent seven years ago this week.

PRISCILA AREVALO: (Speaking Spanish).

BURNETT: On September 3, 2012, federal agents were patrolling the Rio Grande in an airboat between Laredo, Texas, and Nuevo Laredo, Mexico. They say a group of men was in this park on the Mexican side of the river throwing rocks at agents.

AREVALO: (Through interpreter) I just remember the boat. They started to shoot, and they hit him in the heart, and then he fell to the ground. We ran away. And when we came back, my papa, he was already dead.

BURNETT: Guillermo Arevalo, a bricklayer who was picnicking with his family, lay on the gravelly bank beside the sluggish river, bleeding profusely. The airboat roared away. The family insists no one was throwing rocks. Priscila is now 16, and the investigation remains unresolved.

AREVALO: (Through interpreter) The only thing we want is justice. They killed him, and we haven't gotten a call. We don't even know the face of the killer. They just fled, and that was that.

BURNETT: An immigrant rights group called the Southern Border Communities Coalition keeps a running tally of shootings by agents of Customs and Border Protection. By this count, there've been at least 35 fatal shootings by on-duty officers since 2010. Most of them involve immigrants killed near the U.S.-Mexico border after they allegedly attacked or threatened agents.

For its part, CBP pledges to publicly release the results of internal investigations into these use-of-force incidents. But the agency has done so in just eight of those deadly shootings. They found no agent misconduct in each of the incidents. The latest completed case is 3 1/2 years old.

When an investigation drags on for years, justice is suspended. The community is left wondering if the agent was right or wrong to fire his weapon and if the agent is still on the force. And victims' families are denied closure. The 2012 river shooting is an extreme example of this.

STEVE SHADOWEN: This is just beyond absurd at this point.

BURNETT: Steve Shadowen is the Austin attorney who's representing the Arevalo family in a lawsuit against the U.S. government.

SHADOWEN: Something has clearly gone off the rails. People used to get upset if there's not a result in six months or a year, two years at the outside. And here we are at seven years and not a peep.

BURNETT: The Arevalo shooting was one of several rock-throwing incidents that led to sweeping reforms inside CBP in 2014. Under new rules, rather than shoot to kill, agents are trained to move out of the way of flying rocks and speeding vehicles. CBP stresses alternatives to deadly force such as tasers and pepper ball launchers.

As a result, all shootings, whether fatal or not, fell from a high of 55 in 2012 to 15 in 2018, according to the agency's figures. The reforms included the creation of a national use-of-force review board. Its charge - to thoroughly vet shooting incidents and then publish their findings on a timely basis.

GIL KERLIKOWSKE: They've made a lot of progress on the suite of reforms.

BURNETT: The author of the reforms is Gil Kerlikowske, who was commissioner of CBP at the end of the Obama presidency.

KERLIKOWSKE: But I think they've let some things go, and I think that certainly there is more that can be done.

BURNETT: Kerlikowske was brought in to improve CBP's transparency and accountability. He says the reforms are unfinished.

KERLIKOWSKE: I'm very concerned about the timeliness of the process. What is the outcome of an investigation into the use of force, was that use of force justified? And explain it.

BURNETT: CBP counters that if justice is slow, it's because these things take time. When there's an agent-involved shooting, first of all, prosecutors have to decide whether to file charges. Only then does CBP begin its own lengthy investigation. Those results then have to be approved by the agency's lawyer, the chief of the Border Patrol, and finally, the commissioner. All this before the results can be posted publicly.

JOSEPH WESTMORELAND: We do have the charge of making sure that the investigation is done in a purposeful manner, not being rushed.

BURNETT: Joseph Westmoreland is a director with CBP's his office of professional responsibility. He points out there were three interim commissioners in the course of 12 weeks earlier this year, and that slowed things down. Westmoreland says the agency should be releasing the results of at least six more shooting investigations in the coming weeks.

WESTMORELAND: Recently the issue has been there's been a change in leadership, Executive leadership within CBP. So kind of in that transitional phase there, some of these cases got held up at the commissioner's level and the review process.

BURNETT: But after seven years, the Guillermo Arevalo shooting hasn't even made it to CBP's internal affairs office. It's been sitting on a desk at the Civil Rights Division of the U.S. Department of Justice. Prosecutors there still haven't decided whether to bring charges or decline the case. NPR asked the Justice Department spokeswoman, why the delay? 

Her response - DOJ declines to comment.

Ed Chung used to work at DOJ's Civil Rights Division as a prosecutor. He's now at the Center for American Progress. Chung understands these kinds of cases are complex.

ED CHUNG: But certainly, seven years from the time a particular case comes to the attention of an investigating agency to the time where a decision is made is just way too long.

BURNETT: CBP's opaqueness in following up on agent-involved shootings is troubling, says Vicki Gaubeca. She's president of the Southern Border Communities Coalition, the group that tracks CBP shootings. Gaubeca believes the agency is dragging its feet. She says the urgency for reform under Obama has transitioned into the Trump era of cheerleading for border security.

VICKI GAUBECA: And now that he's president of the United States, then they feel sort of emboldened to just basically do whatever they want to do.

BURNETT: There's a pattern to these highly controversial border shootings. First comes the CBP statement, often followed by community outrage. Then the investigation gets underway. And finally, a deafening silence as the years roll by and people move on and forget. Critics say we shouldn't let that happen, not with Guillermo Arevalo and not with the more recent case of Claudia Patricia Gomez.

Just last year, the 20-year-old Guatemalan was shot in the head by a border patrol agent on the outskirts of Laredo, Texas, not far from the river she'd just crossed illegally. A neighbor filmed the aftermath, screaming at agents, you killed that girl.

(SOUNDBITE OF ARCHIVED RECORDING)

UNIDENTIFIED PERSON: (Speaking Spanish).

BURNETT: The first CBP press release called the young Maya woman an assailant who was with a group of immigrants wielding blunt objects and threatening the agent. A second statement corrected that she didn't wield a weapon, but the group she was with rushed the officer and ignored orders to get on the ground. Her parents are suing the federal government for wrongful death. Sixteen months after her death - not a word from CBP.

GILBERTO GOMEZ: (Speaking Spanish).

BURNETT: "Look. I don't think every agent is bad," says her father, Gilberto Gomez, from his house in the Guatemalan highlands. "There's only one person who did this. We don't want impunity. We want justice."

A CBP spokesman says their investigation is on hold because the fatal shooting of Claudia Patricia Gomez remains with the Civil Rights Division of the Justice Department, just like the case of Guillermo Arevalo.

John Burnett, NPR News.

https://www.npr.org/2019/09/06/758426661/7-year-delay-in-border-patrol-use-of-force-case-is-emblematic-of-a-larger-proble