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Police reports describe hail of rocks prior to fatal border shooting

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Posted: Tuesday, October 16, 2012 8:30 am | Updated: 9:30 am, Tue Jul 29, 2014.

Two Nogales Police Department officers who were at the scene last Wednesday when a Border Patrol agent fired into Mexico, killing a Sonoran teenager, described being bombarded with rocks in the moments before shots were fired.

And while the officers reported no injuries to them or the Border Patrol agents at the scene, a Nogales police dog was apparently struck by a thrown rock, though not seriously hurt.

The incident reports filed by NPD officers Quinardo Garcia and John Zuniga, obtained by the Nogales International through a public records request, offer the first detailed account from law enforcement on either side of the border of the fatal episode that has drawn condemnation from the Mexican government.

Still, while the NPD reports support a Border Patrol statement that the agents were assaulted with rocks, neither Garcia nor Zuniga witnessed the gunfire that left 16-year-old Jose Antonio Elena Rodriguez dead. And while they described seeing two suspects climbing the border fence at the time of the confrontation, the officers did not report seeing the individual or individuals who were throwing rocks.

Suspects with bundles

According to Garcia’s report, he responded to West International Street at 11:16 p.m. on Oct. 10 in response to a report of suspicious people in the area who were described as wearing camouflage pants and sweatshirts.

As he arrived at the scene, Garcia saw two men jump over the border fence into the United States and run across the street toward a home on the 400 block of West International.

“The subjects both matched the description provided by the reporting party and were also carrying large taped bundle(s) strapped to their backs,” Garcia wrote. “Based on my training and experience, I identified the bundles as marijuana and immediately called out the incident to assisting graveyard units.”

According to the report, Garcia then jumped out of his vehicle and began to pursue the suspects on foot, yelling at them to stop and identifying himself as a police officer.

“I lost sight of the suspects in the dark, heavy brush surrounding the residence, and asked for units to respond to my location to assist me in searching the area, and avoid being possibly ambushed, should there be more suspects hiding in the area,” he wrote. “During this time, I could still hear noises in the brush, as possibly being the suspects running in the area.”

A Border Patrol agent soon arrived to help Garcia in his search, and Zuniga announced via radio that he had arrived as well, and that he would use his police dog Tesko to aid in the effort.

On the fence

In his report, Zuniga wrote that as he drove up to the scene, he saw two men climbing the border fence, apparently trying to get back into Mexico.

“I could see that the male subjects were struggling to hold on to the metal fence and I gave them numerous commands to climb down,” he wrote, adding that a suspect in a white shirt appeared to lose his balance and began climbing down on the U.S. side of the barrier.

“I then decided to deploy my assigned canine, Tesko, and hold him on leash and secure the area in case the male subjects climbed down,” Zuniga wrote.

At that point, several Border Patrol agents arrived and also began telling the suspects to come down from the fence.

“The male in the white shirt stated he was going to come down but asked us not to hurt him,” Zuniga wrote.

However, the other suspect, described as a male wearing a blue shirt, told his companion in the white shirt not to surrender and to keep climbing. Zuniga wrote that he heard him say: “Don’t worry they can't hurt us up here.”

In the meantime, Zuniga said, he could hear people yelling obscenities at the officers from the Mexican side of the fence. He asked NPD dispatch to contact the Nogales, Sonora police to have them respond on that side.

At that point, the blue-shirted suspect began helping his friend in white scramble to the top of the fence.

“I then heard several rocks start hitting the ground and I looked up and I could see the rocks flying through the air,” Zuniga wrote.

After advising dispatch that he was being rocked and warning other units to stay clear of the area, Zuniga took Tesko and ran for cover.

“As I tried to get cover between a brick wall and small dirt hill, I heard an agent (say), ‘Hey your canine’s been hit! Your canine’s been hit!” he wrote.

“As I tried to check my canine for injuries, I continued to hear rocks strike vehicles and others hit the ground. I then heard several gunshots go off and I saw an agent standing near the fence. I advised communications that gunshots were being fired, and I was unsure where the gunshots were coming from and who was firing them.”

Zuniga asked a Border Patrol agent to provide cover as he put Tesko in his patrol vehicle.

“I then took cover between a brick wall and a dirt hill along with other Border Patrol agents until the scene was safe,” Zuniga wrote.

“I then heard an agent say, ‘There is one 10-7,’ which means out of service or no longer alive.”

As more Border Patrol agents arrived on scene, Zuniga heard sirens coming from the Nogales, Sonora side of the fence. Then he went to check on his dog.

“I was unable to see any injuries, and the Border Patrol agent told me that when we were running for cover, my canine had been hit on the lower left side of his body,” he wrote.

Zuniga photographed the area and noted “several rocks laying on (the) street and the ground around my patrol vehicle.” Border Patrol agents then asked him to clear the area since there were spent cartridges on the ground and the area constituted a crime scene.

FBI arrives

Garcia was searching for the suspects in the brush when he heard Zuniga’s radio report that rocks were being thrown over the fence from Mexico.

“Shortly after, I heard a noise, which I identified immediately as a gunshot, and following after, several more gunshots,” he wrote. “During this time, I continued to search the area and heard Officer Zuniga advise of shots fired and that it was possibly coming from Mexico.

“I immediately got behind cover, and remained in the area during the gunfire,” Garcia wrote.

When the firing stopped, Garcia walked into the open and met with Zuniga and several Border Patrol agents, who told him that a male suspect had been throwing rocks at the agents from Mexico. “The male subject had been shot by one of the U.S. Border Patrol agents,” Garcia wrote.

“I saw that around the immediate area of the scene where the units were stopped at, there were many medium sized rocks scattered on the street and sidewalk,” he wrote.

Garcia said he provided an account of what he saw to an FBI investigator at the scene, and later to investigators from U.S. Customs and Border Protection’s Internal Affairs division. Zuniga was also interviewed by an FBI investigator at the scene, he wrote.

Garcia's and Zuniga's reports for NPD were written Oct. 11 and reviewed by a supervisor the next day.

Video recording

The shooting happened near the junction of West International Street and Hereford Drive, below a camera tower which CBP operates from a spot on the south side of the intersection, approximately 100 feet from the sidewalk in Nogales, Sonora where Rodriguez’ body was found.

U.S. Customs and Border Protection spokesman Victor Brabble told the Nogales International on Saturday that the camera had recorded the incident.

“There was camera footage and it was turned over to the FBI. It’s now considered evidence, so it was turned over to the FBI,” he said.

However, FBI spokesman Manuel Johnson told the NI on Monday that he “can’t confirm or deny the receipt of the video or the content. Our investigation remains ongoing.”

According to a statement released by the Border Patrol the morning after the shooting, agents saw smugglers drop a drug load over the fence into the United States and flee back into Mexico. At that point, suspects on the Sonora side of the fence reportedly began throwing rocks at the agents.

“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.

Luis Parra, a Nogales, Ariz.-based attorney who is representing Rodriguez’s family in the United States, was dubious of the statement that only one agent had fired and said Rodriguez may have been walking down the street to meet his brother at a convenience store when he was shot. He said the video would help clarify the circumstances of the shooting.

“All we need to see is the video. And to that end, it’s up to the U.S. Attorney for the District of Arizona to inform the public as to what’s contained in that video and hand it over,” Parra said.

Brabble, the CBP spokesman, declined to comment on the content of the video. He also declined to say whether more than one agent had fired, or if any gunshots had been fired from Mexico.

“Because the incident is still under investigation, I cannot answer those questions,” he said. “I have to defer to the FBI who is the lead.”

For its part, the FBI won’t say what information it has gathered during the investigation.

Rocks and guns

Photos taken by Sonoran media following the shooting showed Rodriguez lying face down on a sidewalk on the south side of Calle Internacional, near the intersection of Calle Ingenieros, a pool of blood coming from his head.

He was wearing a grey T-shirt and blue jeans.

There were no rocks visible in any of the photos seen by the NI, though it was unclear if police investigators may have collected some as evidence.

The official death certificate showed that Rodriguez died of gunshots to the head and lungs. Parra said prosecutors in Sonora had given him a glimpse of the auropsy report and it suggested Rodriguez had been shot at least six times: twice through the head and four times through the lungs. He said he was not aware that any rocks had been collected near the body.

The area from where the agent reportedly fired is on a hill, approximately 10-15 feet above Calle Internacional. The border fence rises another 25 feet above, but its bollard-style design leaves 4-inch gaps between interconnected steel posts.

The medical office behind the body was pockmarked with bullet holes, and Nogales, Sonora Mayor Ramon Guzman told The Associated Press on Friday that Rodriguez was killed in “a hail of bullets.”

Citing the potential for serious injury or death, the Border Patrol allows its agents to use lethal force in response to rock assaults. There have been at least four reported incidents in Nogales since 2010 in which agents fired at alleged rock-throwers with lethal weapons. In the only other case involving a fatality, a Border Patrol agent fired into Mexico and killed 17-year-old Ramses Barron Torres of Nogales, Sonora on Jan. 5, 2011.

In early 2011, the Border Patrol reported that its Nogales-based agents had suffered 300 assaults during the previous fiscal year – most of them from rock-throwings. According to agency statistics, that number dropped by nearly 63 percent in the year after the Border Patrol completed its taller, stronger border fence through town in August 2011.

For their part, Mexican authorities have condemned the use of firearms to repel rock attacks. In a statement issued in response to Wednesday’s shooting, Mexico’s Foreign Relations Secretariat, or SRE, said the death of Rodriguez was another example of excessive force by U.S. border agents.

“The disproportionate use of lethal force while performing immigration control is unacceptable under any circumstances,” it said.

“Cases of this type, especially due to their regular occurrence, have been rejected by Mexican society and all the political powers and forces of the country.”

‘Very good young man’

Parra described Rodriguez as a “very good young man” with no juvenile criminal record. He said he was in the process of completing his secondary education in hopes of joining the Mexican military.

“He had no tattoos because of the fact that he wanted to join the military,” Parra said.

Part of Rodriguez’s motivation to enlist and get out of Nogales stemmed from recent personal difficulties, Parra said. Rodriguez’s father was killed by gunfire approximately two years ago, he said, though he was not certain of the circumstances of that shooting.

Following his father’s death, Parra said, Rodriguez’s mother moved to the Guaymas area for a job. Rodriguez stayed in Nogales with his grandparents, who lived in the barrio known as La Capilla a few blocks from the site of the shooting.

His older brother worked at a local Oxxo convenience store, and Rodriguez would often walk to the store to meet his brother who would be ending his shift at midnight, Parra said.

“At this point, what we’re hearing is that the young man could quite possibly have been walking toward that Oxxo to help out his 19-year-old brother as he was closing his shift” on Wednesday when he was shot, Parra said.