Now that no federal charges will be filed in the cases of two Border Patrol-related shootings from 2011, the family and lawyer of a Nogales, Sonora teenager shot and killed by Border Patrol agents in October are left wondering if they should expect the same.
The U.S. Department of Justice announced last week that the investigations into the shooting deaths of 17-year-old Nogales, Sonora resident Ramses Barron Torres in January 2011 and Carlos Lamadrid, 19, in Douglas, Ariz. two months later were closed and that no charges would be filed.
The investigation into the death of Jose Antonio Elena Rodriguez -- a 16-year-old resident of Nogales, Sonora, who was shot and killed on Oct. 10 after at least one Border Patrol agent fired into Mexico through a gap in the border fence-- remains ongoing, a spokesperson for the Federal Bureau of Investigation said on Monday.
The Rodriguez family reacted with indignation to the news that the cases had been closed without any charges filed.
Araceli Rodriguez, mother of Jose Antonio, said by phone on Saturday that she has not lost hope that charges will be filed in the case of her son’s death. “We aren’t going to shut up. As I’ve said before, this was a murder. We can’t just leave it like that,” she said. “What would have been done if my son would have killed one of their agents?”
In the Barron Torres and Lamadrid cases, federal homicide charges will not be filed because both incidents included allegations of rock-throwing from the Mexican side of the border and investigators found insufficient evidence to disprove the agents’ claims that they were acting in self-defense, according to a pair of DOJ press releases issued on the afternoon of Friday, Aug. 9.
In the Barron Torres case, the DOJ said that no federal civil rights charges would be filed due to a lack of jurisdiction. The civil rights statute, according to the press release, “requires that the victim be in the United States when he was injured. Here, Barron-Torres was on the Mexico side of the border fence when he was shot.”
For Taide Elena, grandmother of Jose Antonio, the lack of jurisdiction cited by the DOJ has dangerous implications for Mexicans living on the border. “The U.S. says that they can’t make any criminal charges because he was in Mexico, so how should we understand that? That they can kill us with impunity because we are in Mexico?” she said at her daughter’s house in Nogales, Sonora on Sunday.
Investigators with the FBI spoke with the Rodriguez family in Nogales, Ariz. in June and they offered an apology for the death of her son, Rodriguez said. “It didn’t feel sincere to me, it wasn’t clear to me, and I didn’t believe anything they said,” she said.
Instead, the meeting’s purpose was to find contradictions between her story, that of her other son, Diego, and witnesses to the shooting, she said.
Elena criticized the Mexican government for not taking action to make sure charges would be filed. “Where is Mexico’s sovereignty, that the Mexican government is supposed to defend?” she said. “The Mexican government has to help us. We’re not just talking about us, but about all the dead people.”
On Tuesday, the Mexican government issued a press release through its consulate in Nogales, Ariz., expressing its disagreement with the DOJ’s decision. It condemns “cross-border gunfire and reiterates its emphatic rejection of the use of lethal force in migration control operations.”
For one of the lawyers representing the Elena family, the reasons given for not filing charges do not bode well for his case, particularly the finding that criminal civil rights charges cannot be filed if the victim is not physically inside the United States.
“It’s a concern because if that’s the basis for the decision on whether to prosecute, then that very well could be how they decide on the Jose Antonio case,” Luis Parra, attorney for the Elena family, said by phone on Saturday.
“This sets a delicate precedent for cross-border shootings,” he said. “These decisions should be evaluated in order to avoid future cross-border shootings in which Mexican families have no recourse to seek justice.”
Parra also noted that precluding civil rights charges from being filed could stress cross-border ties “for border cities like Nogales that have a good relationship with their sister-city.”
No info, no local charges
Although the DOJ said it will not file charges in the shootings, local prosecutors still have the option to file charges, as was done in Cochise County in 2007.
Cochise County Attorney Ed Rheinheimer filed second-degree murder, manslaughter, and negligent homicide charges against Border Patrol Agent Nicholas Corbett stemming from the shooting death of Mexican national Francisco Javier Dominguez-Rivera, 22, on Jan. 12, 2007. That case resulted in two trials and two hung juries. Rheinheimer was unavailable for comment for this story.
However, times have changed since then, said Santa Cruz County Attorney George Silva, and his office now finds itself shut out of federal investigations of shootings that involve Border Patrol agents.
In 2007, local prosecutors routinely shadowed their federal counterparts during investigations so that both agencies would have the option of filing charges, Silva said. However, in the past few years “things have changed dramatically” and prosecutors from his office no longer shadow federal investigators on high-profile cases, such as Border Patrol shootings, he said.
In the Barron Torres case, “it was all handled by the federal government so we didn’t receive any reports or investigation to review for charging. To this point, I have not gotten anything. I haven’t received anything,” he said.
“There is concurrent jurisdiction, but I don’t have anything to look at to determine if the shooting was justified,” he said.
In the Elena case, the only report he has seen is one filed immediately after the shooting by the Nogales Police Department, he said.
In order for his office to file charges in the Barron Torres or Elena cases, he would have to be presented with some indication that federal investigators did not practice due diligence, he said, adding, “I have no reason to believe that they didn’t do everything that they should have.”
The changed relationship extends beyond cross-border shootings, he said. In the 2010 shooting of Border Patrol Agent Brian Terry near Arivaca, he requested a briefing from federal investigators so that he could determine whether his office would file charges, but the briefing never happened, he said.
Silva said he would “most definitely” like to be more involved in these cases. “I think that there should be protocols in place where both the feds and the locals do concurrent investigations and help each other out,” he said, adding “you never know where a prosecution is going to end up.”
At the same time as his office has been shut out of high-profile cases, Santa Cruz County prosecutors pick up “tons of cases,” in particular drug smuggling cases, that are initiated by federal officers, but the U.S. Attorney’s Office declines to prosecute, he said.
“It can’t work two ways,” he said. “If they want us to pick up prosecutions I think they need to bring us into these investigations so that we can do our own shadowing, cooperate with them, share information and vice versa so that at the end of the day both agencies can determine if they want to proceed with a prosecution.”
The DOJ has not received any requests from the Santa Cruz County Attorney’s Office, a DOJ spokesperson said in a brief statement. An FBI spokesperson said in a statement the agency “makes every effort to share information with our law enforcement partners.” However, “any issues between the FBI and our law enforcement partners will be discussed in private.”
Nogales International reporter Murphy Woodhouse contributed reporting