It didn’t take long for James A. Soto of Nogales to make his mark as a federal judge.
In a finding issued Feb. 5 subsequent to the first civil trial heard by the new judge at U.S. District Court in Tucson, Soto ruled that former Border Patrol Agent Abel Canales committed an “intentional battery” when he shot and seriously wounded an undocumented border-crosser west of Nogales in 2010. He awarded the victim, Jesus Castro Romo of Nogales, Sonora, nearly $500,000 in damages.
Soto wrote that after hearing testimony from Castro and Canales, and upon reviewing other evidence in the case, he found Castro’s testimony about the incident more credible.
Canales’ description of the event, in which he claimed that he shot Castro in self-defense after Castro threatened him with a rock, “has evolved,” the judge wrote.
What’s more, the fact that Canales was subsequently charged and convicted for taking a bribe to allow contraband to pass through the Interstate 19 checkpoint “seriously undermines his credibility,” Soto wrote.
“The Court finds that Castro was not in the motion of throwing a rock at Canales” when Canales shot him, Soto wrote, adding that therefore, “Canales’ firing of his weapon was not based on a reasonable fear for his immediate safety.”
But Soto went further, adding that that even if Canales’ testimony had been true, his use of deadly force was still not justified under Arizona law.
“Put more bluntly, 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,” he wrote.
Soto’s findings come as the Border Patrol’s use of lethal force, especially in response to alleged rock-throwing, faces increased criticism from civil rights advocates. James Duff Lyall, a lawyer for the ACLU in Arizona, applauded the judge’s conclusions in the Castro case.
“Judge Soto's opinion is significant for its willingness to question an agent's inconsistent and implausible account of events, something that is all too rare when it comes to Border Patrol and law enforcement generally,” Lyall wrote in an email to the NI.
“It also recognizes the obvious point that rocks are not the same as guns, something most law enforcement experts accept as common sense, but which Border Patrol has continually ignored while trying to justify agents' excessive use of force.”
Soto’s statement that a rock is not as deadly as a gun provoked outrage among some Border Patrol agents and their supporters, who took to the NI’s Facebook page to blast the judge’s ruling and insult him personally.
“I can understand why some agents would take offense to the debate about deadly force,” said Ron Coburn, a retired Border Patrol agent who once served as the agency’s deputy chief, as well as the acting patrol agent in charge at the Nogales Station. “The old adage is, ‘Go talk to Goliath about that.’”
Coburn pointed to cases in which agents have been badly injured with rocks, including a Dec. 6 assault on the Tohono O'odham Reservation in which an Ajo-based agent suffered a fractured orbital bone.
“Bringing in that kind of editorializing by a judge is probably uncalled for,” he said of Soto’s statement. “Although (agents) may support the decision of the judge and the lack of credibility of the defendant in the case, it’s when he goes off path with debating about what is force, what is not force.”
Soto, who joined the federal bench in June 2014 after serving more than 12 years as presiding judge at Santa Cruz County Superior Court, added a footnote to his finding that Canales’ use of force was not justified.
“The Court notes that Border Patrol agents regularly interact with dangerous individuals, and many of these interactions take place in remote locations, hours away from other agents,” he wrote. “The Court recognizes that in some of these interactions, use of deadly force will be entirely proper.”
‘It’s a win’
Canales shot Castro once in the left backside on Nov. 16, 2010 while detaining a group of undocumented border-crossers near Walker Canyon. Canales was on horseback at the time.
The day after the shooting, Canales told federal investigators that while he and another horseback patrol agent were trying to detain Castro and the rest of his group, Castro disobeyed orders and picked up a rock. Then he dropped it. When Castro backed up a few steps and bent down, Canales said, he thought he was picking up another rock and so he shot him as he started to stand back up.
Evidence presented at the civil trial showed that the U.S. Attorney’s Office in Arizona, relying on that statement, decided that Castro had not presented a clear enough threat to Canales to pursue charges against Castro.
As Soto noted in his finding, Canales told a different story at trial, this time saying that he did, in fact, see Castro pick up a second rock and cock his arm back as if he were ready to throw it. He also claimed Castro told him, “Now you’re going to get it, (expletive).”
Castro, who had been caught crossing the border illegally 14 times before the day of his shooting, said Canales assaulted him verbally and with the reins to his horse. When the abuse continued, he said, he ran away before eventually returning to the spot where Canales had first caught him. He crouched down to avoid being hit by the reins and that’s when Canales shot him, he said.
Upon finding in Castro’s favor, Soto concluded that $553,270 would fairly and reasonably compensate him for the injuries, emotional harm and economic loss he sustained as a result of the shooting. He also found that Castro was 10 percent responsible for his own injuries and reduced the award by that amount to $497,943.
“It’s a win,” said William Risner, the Tucson-based lawyer who sued the government on Castro’s behalf, in response to Soto’s findings.
“I feel good that he found my client credible and ruled for us on all the issues,” Risner said, though he added that he wasn’t satisfied with the amount awarded. In a proposed finding of fact filed in September, Risner had argued that the government was liable for more than $13 million in damages.
“Nonetheless, this puts my client in a position where he knows what he’s dealing with and can get an operation he needs,” he said.
Mark Pestal, a U.S. attorney from Colorado who represented the government in the case, declined to comment on the judge’s finding. “At this point we’re just reviewing it,” he said.
Soto’s office issued a final judgment and order to close the case on Tuesday, and the parties now have 60 days to appeal. Asked if the government would appeal. Pestal said: “At this point, the decision’s under review.”
Risner said he was glad that Soto, a judge who is familiar with border issues, heard the case.
“I was pleased to have someone who would really understand who the people were and what was going on – that he could much better evaluate it than someone else,” he said.
Soto is also the judge in another civil suit Risner is pursuing as a result of a Border Patrol shooting. In that case, he represents the family of Carlos Lamadrid, a U.S. citizen who was shot and killed by Border Patrol Agent Lucas Tidwell as he tried to climb a ladder over the border fence in Douglas on March 21, 2011.
While another man atop the fence was throwing rocks at agents at the time, the family alleges that Tidwell used excessive force when he shot Lamadrid three times – including twice in the back. That case is still pending trial.
As for Canales, the agent in the Castro civil suit, he was indicted in October 2011 on charges that he took cash from drug smugglers after allowing a load to pass through the checkpoint in October 2008. He pleaded guilty to one count of bribe-taking by a public official on Aug. 20, 2012 – the same day he resigned from the Border Patrol – and was later sentenced to eight months in prison.
The government had alleged during the civil trial that Castro was acting as the “coyote,” or guide, for his group, which would have given him greater motivation to avoid arrest. Soto addressed the allegation in his findings, saying the evidence was “inconclusive.”
“In any event, the fact that Castro may have been a guide does not change the fact that it was unreasonable for Canales to use deadly force under the facts and circumstances of this case,” he wrote.