Panga driver, not Border Patrol agents, found at fault in deadly collision at sea

Reporting from SAN DIEGO —  A deadly collision between a panga and a U.S. Customs and Border Protection vessel off the Encinitas shore in 2015 was caused by the erratic evasion efforts of the panga driver, not the agents trying to halt the human smuggling operation, a federal judge in San Diego has ruled.

The opinion, filed Friday, by U.S. District Judge Jeffrey Miller clears the three federal agents aboard the M901 vessel of any blame in the crash, which killed a 32-year-old Mexican woman who was attempting to enter the U.S. illegally.

The judge rendered the decision after a two-day bench trial in May.

The parents of the deceased woman, Graciela Lopez Franco, and two brothers who were injured during the interdiction filed a lawsuit against the U.S. on claims of wrongful death and negligence.

The panga, with 20 people aboard, was spotted by U.S. aircraft off the coast of Baja California, Christopher Hunter, a CBP supervisory marine interdiction agent who was commanding the agency’s 38-foot patrol vessel, testified.

Hours later, at about 2 a.m., CBP agents saw the low-profile boat about 12 miles off the coast of Encinitas and tried to stop it.

None of the agents recalled giving verbal warnings over the boat’s loudspeaker, although several people in the panga testified that they heard commands to stop.

The agents activated sirens and flashing lights, and Hunter said the panga driver, wearing a yellow rain slicker, accelerated and turned away. The agents then fired two flare shots, but the panga did not slow down.

The agents fired shotgun blasts to disable the panga’s engine and maneuvered the boat to bring it in close, Hunter said. Within seconds after the shots, the panga made a drastic left turn, colliding with the M901 and was forced under the larger boat while still moving forward.

“It was chaos. People were frantic, clinging to items, even with life jackets on,” Hunter testified. “Life rings and heaving lines were thrown to people farther out, and people were pulled into the M901.”

Hunter and several others noticed a man sitting on top of the capsized panga, but he would not let go.

Agent Craig Jenkins testified that at some point the man on the wreckage told him that a woman was under the boat. Jenkins, who was busy hauling people from the water into the CBP vessel, told the man to get the woman from under the boat but he did not react, according to testimony.

Franco eventually was found after the others had been rescued and pulled aboard. Agents performed CPR on her for 30 minutes but were unable to revive her.

Hector Lopez Garcia, a panga passenger who was injured in the collision and sued the government along with his younger brother, said he tried to take the throttle from the panga driver when the CBP boat flashed its lights and sounded the siren. But the driver instead accelerated and told Lopez to duck as “bullets were flying above.”

Lawyers for the plaintiffs argued that force used by CBP was not appropriate for the situation, putting the panga passengers at unnecessary risk. Additionally, the approximately 94 seconds between the initial lights and siren and the disabling shots did not allow enough time for the panga occupants to surrender.

The judge concluded otherwise.

“The clear intent of the panga driver was to elude the M901 and avoid interdiction,” Miller said. He further determined that the collision “was solely caused by the erratic operation of the panga by the driver.”

The panga driver, Jose Pina Espinoza, was sentenced in 2016 to 30 months in prison, while Salvador Sanchez Garcia — who admitted to helping with fuel duties for a cheaper smuggling fee — received 36 months.

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Davis writes for the San Diego Union-Tribune