Abel Canales

In February 2011, after investigating an incident the previous November in which Border Patrol Agent Abel Canales shot and seriously injured an illegal border-crosser named Jesus Castro Romo, presumably to prevent Romo from assaulting him with a rock, the U.S. Attorney’s Office determined that it could not prosecute Castro for an assault on a federal agent.

“It would be difficult, if not impossible to prove that Castro-Romo had the requisite intent to commit a forcible assault,” says a letter to FBI investigators dated Feb. 11, 2011 and signed by then-U.S. Attorney Dennis Burke.

Yet while the U.S. Attorney in Arizona determined at that time that there was insufficient evidence to prove that Castro’s behavior during the Nov. 16, 2010 incident west of Nogales rose to the level of an assault or intended assault, three-and-a-half years later, members of the U.S. Attorney’s Office in Colorado told a judge that Castro’s actions had been so threatening that they justified Canales’ use of lethal force against him.

“Agent Canales’ use of deadly physical force was justified,” wrote Mark Pestal and Johanna Hamburger, special attorneys to the Attorney General, in a document filed this week at U.S. District Court in Tucson. In support of that assertion, they cited an Arizona statute that justifies use of deadly force when a “reasonable person would believe that deadly physical force is immediately necessary to protect himself against the other’s use or attempted use of unlawful deadly physical force.”

The document was one of several filed this week as the government attorneys and the lawyer for Castro wrapped up their arguments in a civil lawsuit in which Castro hopes to convince U.S. District Judge James A. Soto that Canales was negligent in using deadly physical force against him, and that the U.S. government is therefore liable for more than $13 million in damages. Soto, who will ultimately determine liability and any monetary reward, asked both sides to prepare memos and proposed findings of fact after the end of a five-day trial on July 25.

The government’s shifting position as to whether Castro attempted to assault Canales with deadly force corresponds with Canales’ evolving account of the shooting, the newly filed court documents show.

Canales’ first account came on Nov. 17, 2010, the day after the shooting, when he and his lawyer met with FBI investigators and representatives from the U.S. Attorney’s Office in Arizona and the Border Patrol’s Office of Investigation. During that interview, Canales said that while he and another horseback patrol agent were trying to detain Castro and the rest of his group of illegal border-crossers, Castro disobeyed orders and picked up a rock. Then he dropped it.

Canales said that while he was “moving with his horse” and unholstering his gun, he saw Castro back up a few steps and bend down. Thinking that Castro was picking up another rock, Canales shot him as he started to stand back up.

“I wasn’t giving – I wasn’t going to give him that chance for me to see, oh, how there is the rock or does he really have it in his hand when I already seen him the first time with the rock in the hand,” he told the investigators, according to a transcript cited in a memo from Castro’s lawyer William Risner.

The fact that Canales didn’t report seeing a rock and said he shot Castro only because he thought he had picked one up discouraged the U.S. Attorney’s Office in Arizona from pursuing assault charges against Castro.

“It is clear that he never threw a rock at (Canales),” the prosecutor’s Feb. 11, 2011 letter states. “He may have initially picked up a rock, but he dropped it again upon the command of Canales.

“He didn’t appear to have picked up a second rock, but rather the (Border Patrol agent) thought he was making a motion indicating he would do so,” it continues. “Even by the agent’s own statements, it is ambiguous whether Castro-Romo was reaching for another rock, and whether he was going to make a motion to throw the rock in a forcible assault of the agent.”

Despite these concerns, Burke's office never filed criminal charges against Canales over the shooting.

The government lawyers in the civil trial initially resisted disclosing the 2011 letter. At trial, however, they entered it into evidence as part of a larger report.

Canales told a different story when he testified at the civil trial in July, 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. Canales also confirmed a statement he had made during a deposition in January 2013 that as Castro wound up to throw the rock, he told the agent: “Now you’re going to get it, (expletive).”

“And he went back and I had the gun in my hand and that’s when I shot him,” Canales said, according to a transcript cited in Pestal and Hamburger’s proposed findings of fact.

Canales shot Castro in the left backside, medical experts testified at trial. In Risner’s recap of that testimony, he wrote that Canales was shot with a hollow-point bullet that fragmented upon entering his body, causing abdominal damage and leaving shrapnel in his spine.

The government attorneys argued that the judge should believe the description of the shooting that Canales provided at trial in July 2014 more than the one he gave the investigators after the shooting in 2010.

“The transcribed interview (from 2010) should not be accorded as much weight as Agent Canales’ in-court testimony given he was not under oath during the interview, had limited time to consult with an attorney before the interview, and was potentially experiencing the side effects of physical and mental stress from the incident the day before,” they wrote in their post-trial memorandum.

“The interview was mainly focused on establishing whether sufficient evidence existed to prove the elements of assault on a federal officer,” they wrote. “The focus was not on determining whether Agent Canales was justified in his use of deadly force in self-defense under Arizona state law.”

Risner, Castro’s lawyer, disagreed, writing: “It is well accepted that statements made closer to the date of the event are more reliable than statements made years after, especially where the person making the statement years later has reasons to either consciously or unconsciously make (their) actions appear more acceptable.”

Credibility

In addition to Canales’ changing accounts of the shooting, Judge Soto has another reason to doubt Canales’ testimony, Risner wrote: He pleaded guilty in 2012 to accepting a bribe to allow a U-Haul loaded with contraband to pass through the Border Patrol’s checkpoint on Interstate 19 in October 2008. (As a result of that conviction, the U.S. Attorney’s Office in Arizona, which prosecuted Canales, declared a conflict of interest after Castro filed suit against the government in January 2012. The case was then picked up by Pestal and Hamburger of the U.S. Attorney’s Office in Colorado.)

Canales testified at trial that he couldn’t recall if he had committed other acts of corruption.

“His proven and admitted corruption for a small amount of money is clear evidence of a seriously deficient moral character,” Risner wrote. “His testimony that he ‘couldn’t recall’ if he had previously let other loads through the checkpoint is not credible. Either he lacks the capacity for truthfulness or his corruption is so thorough that serious anti-social behavior makes no mark on his memory.”

For their part, the government lawyers cast doubt on Castro’s credibility, saying his trial testimony differed from allegations made in the complaint he filed in 2012. For example, they said, his complaint alleged that he was walking back toward the rest of his group with his hands on his head before he was shot, while at trial he “only testified that at one point he raised his hands over his head in a gesture of surrender.” In addition, Castro “did not testify at trial that a bump from (Canales’) horse knocked him to the ground as he alleged in his complaint,” they wrote.

The lawyers also alleged that Castro was the guide of his group and he attempted to throw a rock at Canales to avoid apprehension and a criminal prosecution for alien smuggling. Not only did he fit the characteristics of a guide, they said, but one of the members of his group told investigators after the shooting that he was the guide.

Castro denied being the guide, but reportedly testified that he did not have to pay anyone to help him cross the border because he had agreed to help the guide keep the group together.

According to the court documents, Castro had been caught crossing the border illegally 14 times before the day he was shot.

Use-of-force policy

Pestal and Hamburger wrote that Canales followed the Border Patrol’s use-of-force policy when he shot Castro, citing testimony at trial from another agent that agents are permitted to use deadly force “in response to an immediate threat of serious bodily injury or death.” But Risner argued that this training is contrary to Arizona law, which allows deadly force to stop another person’s use or attempted use of deadly physical force, not the threat of such force.

The government attorneys argued that even if Soto finds that Canales was negligent in shooting Castro, the law allows him to reduce damages if he finds Castro also to be negligent.

Castro had crossed the border illegally, resisted apprehension and attempted to assault Canales, they said. “Plaintiff’s precipitating conduct was not only grossly negligent but intentionally criminal in nature,” they wrote. “These wrongful actions preclude a finding that any negligence on the part of Agent Canales was the cause of plaintiff’s injuries or losses.”

Canales is no longer a member of the Border Patrol. He resigned in August 2012 at the time of his guilty plea in the corruption case.

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