Questions Remain in Border Agent’s Shooting at Van

Six days after a U. S. Border Patrol agent fired his service revolver into a van packed with illegal immigrants, striking two of them, neither federal nor local authorities have explained what deadly threat, if any, prompted the officer to discharge his weapon.

The agent, approaching the stopped vehicle on foot from behind on Friday, fired three shots into the right rear of the van as it accelerated forward from a dead stop, authorities said. The driver was apparently attempting to drive off from a pre-dawn immigration check.

Investigators have yet to discover any direct threat to the officer, said Lt. Dean Girdner of the Chula Vista Police Department, which is handling the case. No weapon was found in the van and there is no evidence that the vehicle lurched backward toward the agent, he said.

But Girdner added that authorities have not ruled out the possibility that the officer--whose name is being withheld, in accordance with Border Patrol policy--may have thought the van was going to reverse toward him, perhaps endangering his life.

The agent had just gotten out of the passenger side of his marked patrol car, which had stopped a few feet behind the van on the right-hand shoulder of northbound Interstate 5, about six miles north of the international border. The van had pulled over after unsuccessfully attempting to elude the two Border Patrol agents, according to the agency’s account.

The agent began shooting almost simultaneously with the revving of the van’s engine, Girdner said. The officer may not have known whether the vehicle would go forward or backward when he fired his .357 Magnum service revolver, he added. The driver and two others in the van then fled on foot.

The agent and his partner, who was driving their vehicle, had already determined that the van had been stolen an hour earlier from a San Diego street.

“He anticipated the van moving,� Girdner said.

Border Patrol policy calls for agents to shoot only when necessary to protect their lives or those of other innocent people--not to stop a suspect from fleeing.

“Patrol agents should be reminded that service weapons are to be used for defensive purposes only,� the Border Patrol Handbook says. “Patrol agents must be able to demonstrate that weapons are used only in defense of their own lives, the lives of other patrol agents or the lives of innocent third parties. . . . When firearms must be used, the patrol agent’s action must be legally justified and the gunfire directed only against the appropriate target.�

Although the officers suspected that the back of the van was filled with illegal immigrants, the agent shot into the passenger cabin rather than at the driver’s seat, authorities said, hitting a 16-year-old Mexican boy and a 25-year-old Salvadoran woman, but not the alleged smugglers.

Critics have charged that the agent’s action was unjustified and that only luck prevented someone from being killed inside the van, which held at least 11 occupants. The two victims are recuperating at UC San Diego Medical Center.

“This is a case of an agent shooting wildly and indiscriminately into a van that he knows has people in it,� said Roberto Martinez, border representative for the American Friends Service Committee, the social action arm of the Quaker Church.

Border Patrol officials have declined to characterize the shooting as justified or unjustified, saying they are awaiting results of the Chula Vista police inquiry and a parallel investigation by the Office of the Inspector General, an internal affairs bureau of the Justice Department, the federal umbrella agency that includes the Border Patrol.

Chula Vista police, who are handling the case because it occurred within the city limits, say they hope to complete their investigation by Friday; results will be forwarded to the U.S. attorney’s office, which reviews shooting cases involving federal officers.

The officer involved, described as a six-year veteran of the force who is in his 30s, has been placed on paid administrative leave. That is considered a significant departure from recent policy. In recent years, agents involved in gunfire have typically been temporarily reassigned, usually after a quick preliminary finding that the individual shootings appeared justified.

In fact, this marks the first time an agent has been placed on such leave after a shooting during the tenure of Dale W. Cozart, who became the San Diego sector’s chief patrol agent more than three years ago. The sector includes 750 agents--the nation’s largest force of border guards.

Asked why the agent was not arrested, Girdner said authorities presumed the officer believed there was some kind of threat as he approached the stolen van in the darkness.

“He’s in uniform, he’s performing his job . . . and he got into a situation where he thought it was necessary to fire his gun,� Girdner said. “I don’t see any criminal complaint; there may be some procedural problems.�

The Border Patrol Handbook warns agents that their federal badges do not completely shield them from legal action arising from wrongful shootings. “A mis-aimed bullet may mean manslaughter,� it says. “The mere fact patrol agents are on duty when they resort to the use of firearms does not protect them from prosecution and/or civil action should they mishandle their weapons.�