If the federal officers who patrol the U.S.-Mexico border operated under the same policies as city cops, Oscar Gamiz-Bargas might still be alive. The 22-year-old died May 18, 75 yards north of the Mexico point-of-entry, when a Border Patrol agent and a U.S. Customs officer fired on the SUV he was driving.
Officers had been trailing the vehicle after receiving a tip that Gamiz-Bargas had picked up four men in Otay Mesa who'd entered the country illegally, according to a statement released by the San Diego Police Department. A passenger in the vehicle said Gamiz-Bargas, realizing he was being followed, began heading back toward Mexico on southbound Interstate 5, according to court documents. Officials closed the border, and the SUV became stuck in traffic. Officers surrounded the vehicle and told Gamiz-Bargas to get out; when he didn't respond, a Customs officer smashed the driver's-side window, the police department statement said.
Jose Gonzalez-Fabian, who was sitting in the passenger seat, later told a Border Patrol officer that Gamiz-Bargas had his hands up. Though initial reports said the SUV accelerated, pinning an officer against a car in the next lane, a San Diego police lieutenant charged with investigating the incident said that wasn't the case.
“At some point, the vehicle started moving to the left and all of the lanes of traffic were literally car-to-car,” said SDPD Lt. Kevin Rooney. “[The vehicle] apparently started to wedge the officer-not that he was in contact... it was getting tight between the suspect vehicle and the other cars.”
Gonzalez-Fabian said in his statement that he thought Gamiz-Bargas' foot slipped off the brake. When the vehicle moved forward, both a Border Patrol agent and a Customs officer opened fire, saying they did so to protect officers standing in the SUV's path.
A federal law-enforcement officer is allowed to use deadly force if he believes his life, or the life of another person, is in danger. It's a broad exception compared to policies enacted in the past couple of years by a number of law-enforcement agencies, including the San Diego, Los Angeles, Portland and Cincinnati police departments and the Los Angeles County Sheriff's Office, among others. Under new standards adopted by these departments, the officers involved in the Gamiz-Bargas shooting did two things wrong: they placed themselves in harm's way by standing in front of a suspect-occupied vehicle, and two of those officers fired on the vehicle, an action that's proven not only useless in too many cases, but also dangerous.
The San Diego Police Department's guide to use-of-force states that “officers shall not position themselves in the path of a vehicle... in order to prevent a suspect from fleeing. Such actions create a dangerous situation that may not justify the use of a firearm.”
The Portland Police Department, which revised its use-of-force policies two years ago after hiring an independent auditor, tells its officers that “a moving vehicle itself shall not presumptively constitute a threat that justifies... use of deadly force.” Officers also “shall not discharge a firearm at a person(s) in a moving vehicle” unless there's no other option to prevent death or serious injury to another person-but, the policy re-states, the vehicle itself does not constitute a threat.
“There's a growing trend toward more restrictive policies,” said Allyson Collins, deputy director of the Police Assessment Resource Center in L.A., a law-enforcement oversight organization that helped Portland revise its policies. “More and more policies... highlight the fact that shooting at vehicles is usually ineffective and inherently dangerous and emphasize officers' responsibility not to create a dangerous situation by placing themselves in the paths of vehicles.”
Kurstan Rosberg, a Border Patrol spokesperson, said the agency will conduct an internal investigation of the shooting; if that investigation shows officers could have done things differently, the Border Patrol will revise its policies.
“If there's something that comes out of the event that warrants a training update or new training, then certainly it will be implemented,” Rosberg said. “It just depends on what they find.”
Rosberg couldn't comment on details of the shooting and directed all questions to the San Diego Police Department. Because the shooting took place within the city of San Diego, the police department's homicide unit is conducting its own investigation. Neither the police nor the Border Patrol nor the Office of U.S. Customs and Border Protection-the Department of Homeland Security arm that handles border security-will release the names of the officers who shot at Gamiz-Bargas.
Lt. Rooney said that when the homicide investigation is complete, it will be forwarded to the U.S. Attorney, who'll decide whether charges should be brought against either officer.
Kevin Keenan, head of the San Diego branch of the American Civil Liberties Union, said both this incident and other recent incidents warrant independent outside review. So far this year, there have been five shootings in the U.S. involving border agents; in 2005, there were 21 such incidents.
“With federal law-enforcement agencies,” Keenan said, the investigation “literally disappears into a black hole after it reaches the U.S. Attorney's office. You never know what happens.... You never know what comes of [an investigation] even when it's high profile and involves facts that make any ordinary person think, ‘Gosh, the agents probably did something wrong here.'”
Keenan said that in 1994, the ACLU, along with a broad collation of other organizations, including the National Rifle Association and the Drug Policy Foundation, asked President Bill Clinton to organize a commission to review federal law-enforcement practices, including use-of-force policies. Keenan said that as far as he knows, nothing came of that request. With the May 18 shooting, along with the Dec. 30 shooting of 20-year-old Guillermo Martinez, who was shot in the back as he was climbing the border fence into the U.S., the ACLU is calling for the Department of Homeland Security to hire an external auditor to determine whether use-of-force training is lacking.
“The fact that their agents are putting themselves in front of vehicles shows that they are behind the times,” Keenan said. “They could be more effective and make their rules safer for both the agents and the public.”
He said with more agents being brought in to protect the border, the need for independent review is even more pressing. “At the time of Operation Gatekeeper”-the Clinton-era policy to increase border protection-“you had a large number of rookie agents. We're concerned that if hundreds of thousands of new Border Patrol agents are going to be added, there will be again a further increase in abuses and without any independent oversight, tensions with the community are going to peak.”
Enrique Morones, who heads the immigrant-rights group Border Angels, said the need for better training for border-enforcement officers has diplomatic priority. “These guys should have the highest training, because what they do could spark an international incident,” he said.
The Mexican government has demanded an investigation of the Gamiz-Bargas shooting, which will likely be handled by the U.S. Office of the Inspector General, the federal agency that investigates complaints of officer misconduct. (Calls to the OIG, both locally and in Washington, D.C., revealed that, apparently, there is only one person who could confirm whether the OIG is handling the investigation; that person happened to be out of town at press time and unavailable for comment.)
Keenan said if the OIG investigates, it's still not sufficient.
“It's something, but it's not at all effective; it's not independent.”