Border Patrol agent accused of excessive force

SAN DIEGO  — For the first time in more than a decade, a U.S. Border Patrol agent will go on trial today on a charge of beating an unauthorized immigrant who was in custody after being caught trying to enter the United States.

Agent Luis E. Fonseca has pleaded not guilty to the single charge handed up in an indictment last year: deprivation of rights under color of law.

Prosecutors say a videotape shows Fonseca kneeing and choking into unconsciousness Adolfo Ceja Escobar just before 8 p.m. on July 26, 2011.

Fonseca was hired by the agency in August 2007 and has been on unpaid administrative suspension since last May, according to a spokesman for the Border Patrol.

While federal prosecutors in San Diego have indicted more than a dozen Border Patrol agents and Customs and Border Protection officers on corruption-related charges in the past few years, it is uncommon to see a case for excessive force filed against an on-duty agent.

In fact, the last time it happened was more than 10 years ago. In November 2002, two Border Patrol agents were charged with beating an unauthorized immigrant in a holding cell, but both were found not guilty by a jury after just an hour of deliberations.

The incident was caught on videotape, but lawyers for the agents successfully argued that the tape did not capture the entire confrontation and that the men were defending themselves.

The case against Fonseca also has at its core a videotape of the incident.

Defense lawyers are expected to argue, in part, that the video, which has no audio component, does not tell the whole story.

In court papers, Assistant U.S. Attorneys Jill Burkhardt and Timothy Coughlin wrote that Ceja was arrested with two other men in an area known as Spooner’s Mesa, about four miles from the San Ysidro border crossing. The trio was taken to the processing area inside the Imperial Beach station.

Video cameras show two of the three men going through routine processing procedures. Then it shows Fonseca, who was working as the desk agent in charge that evening, approaching Ceja. His back is to the camera but he appears to be talking to him.

Fonseca knees Ceja in the right thigh, and has Ceja kneel down and cross his ankles, his hands on a glass wall in front of him. The video shows Fonseca hitting Ceja with his knee two more times. He then appears to grab Ceja by the throat, tilt his head back and choke him until Ceja loses consciousness, prosecutors said.

Ceja’s body sags, and when Fonseca steps away from him he collapses to the floor. For a few seconds Ceja convulses on the station floor “with seizure-like movements,” the prosecutors wrote. He regains consciousness after a few moments, and Fonseca returns to his desk.

Later, Ceja is seen in the video demonstrating a choking movement to another agent. Ceja, who was deported to Mexico, was arrested again a month later at San Ysidro, trying to get into the country. He was interviewed by a Customs and Border Protection officer and gave more details about the incident with Fonseca.

After he regained consciousness, he said he told Fonseca he felt he might be having a heart attack. Ceja claimed in the interview that Fonseca replied, “You’re having a Mexican heart attack.”

One of the men who was with Ceja. Mario Lopez Alaniz, was interviewed by investigators and told them that agents were yelling at the men for not keeping their hands placed on the wall. When Ceja replied to Fonseca that his hands were indeed up, the agent responded with a profanity and then kneed Ceja.

Lopez is expected to testify.

Advocates for immigrants have complained over the past year that Border Patrol agents use excessive force on illegal border crossers but are rarely held accountable.

Kevin Keenan, the executive director of the ACLU of San Diego & Imperial Counties, said Monday that he didn’t know if that campaign had an effect on the charge in this case.

“This agent deserves a fair trial,” he said. “It’s very rare for agents to be prosecuted for conduct that harms individuals. I think videotape evidence can be very powerful, and can force the government to act.”