BORDER PATROL ACCOUNT OF DEADLY SHOOTING DISPUTED

Border Patrol account of deadly Nogales shooting is disputed

2013-03-30T00:00:00Z 2013-04-02T10:46:59Z Border Patrol account of deadly Nogales shooting is disputedPerla Trevizo Arizona Daily Star Arizona Daily Star
March 30, 2013 12:00 am  • 

NOGALES, Sonora - A Nogales teenager was simply walking down the street and not throwing rocks at U.S. Border Patrol agents the night he was shot and killed, a new witness says, contradicting the agency's initial statement.

Isidro Alvarado, 36, said he was walking less than 20 feet behind José Antonio Elena Rodríguez when two other young men suddenly ran past him and into a side street. He then heard gunshots come from different directions and he saw José fall to the ground.

Alvarado ran south in the same direction as the two men to take cover and call the police, he said earlier this week as he retraced his steps near the DeConcini Port of Entry.

On Oct. 10, 2012, Nogales, Ariz., police and the Border Patrol responded to a 911 call about 11:30 p.m. Officers reported seeing two people with marijuana bundles wrapped around their body on International Street, according to police reports.

They were trying to climb back into Mexico, the report said, when a group started to throw rocks at the officers over the border fence.

When they refused to stop, a Border Patrol agent who was near it opened fire into Mexico, hitting one of them.

Another witness interviewed by Mexican law enforcement said he saw four people running with rocks but didn't specify if José was one of them. Alvarado said he didn't see anyone else running, besides the two young men who apparently had just jumped the border fence, nor did he see José throwing rocks.

Alvarado was among the first callers to report the shooting to the dispatcher in Nogales, Sonora, but he didn't speak with investigators that night because he said he was was afraid and in shock. "I had never seen anyone get killed." He hasn't been interviewed by investigators on either side of the border.

The FBI's investigation is on-going and no additional information could be provided, bureau spokeswoman Jennifer Giannola wrote in an email. There's no specific timetable for when the investigation will be completed.

"Although we are cognizant of time, it is imperative to conduct a thorough investigation," she wrote.

José's body was found on a sidewalk across Calle Internacional - about 40 feet from the border fence that sits on a descending bluff - with only an orange plastic lighter and a Blackberry in his pockets.

He was shot about eight times: twice to the head, once on his arm and five times on his back. At least five bullet wounds clustered on his upper back had to have struck him after he was down, according to a ballistics report by Sonora state investigators, obtained by the Arizona Daily Star.

Investigators concluded the shots came from the United States because they didn't find any shell casings on the Sonora side. They noted seeing 14 casings through the 20-foot tall fence in two different spots: 11 casings in one area and three about 26 feet east.

But they couldn't confirm if more than one firearm was used due to the polygonal rifling, which they determined had to come from either a Glock, Desert Eagle, Heckler & Koch or Dornaus & Dixon.

Which doesn't surprise Luke Haag, owner of Forensic Science Services Inc. out of Carefree, who reviewed the reports.

"It's very difficult to match bullets fired from a polygonal rifled gun. The interior of the barrel made by polygonal method is extremely smooth and doesn't leave individual characteristics that can be matched bullet to bullet or to a gun," he said.

A laboratory examination of the cartridge casings on the American side can determine if one gun fired all of the cartridge casings, the make and caliber of the gun or guns if more than one was involved, said Haag, who has 46 years of experience in criminalistics and forensic firearms examination.

Investigators also recovered nine .40-caliber bullets-six from the body and three at or near the scene- described as being Starfire bullets. But Haag said from what he can see in the report, they appear to be Federal HST bullets, a similar style of hollow point bullet but from a completely different manufacturer.

Border Patrol agents are trained to use several firearms, including a Heckler & Koch P2000 handgun.

Investigators marked 13 bullet holes with red circles on all three walls of a doctor's office that stretches along the corner of Internacional and Ingenieros streets.

José's family couldn't be reached for comment Friday, but their attorney Luis Parra said, they are seeking justice and transparency from the U.S. Department of Justice.

"They wholeheartedly believe José Antonio was innocently walking home prior to being killed," he said.

Although no single report will bring José back, it at least shows the case is moving along, the boy's grandmother, Taide Elena, said last month when they first read the autopsy report.

The autopsy report from Sonoran medical examiners found most of the shots were fired from the back and described injuries to both of his hands and face indicating he fell forward after being shot. The lead doctor who performed the autopsy hasn't been reached for comment.

"What I can't understand is why they shot him so many times," Elena said. "With one shot they would have killed him."

Officer-involved shootings statistics show they have about a 25 percent hit rate around the country, Haag said.

Given the amount of bullets found inside José, it can mean one of three things, he said: that there was more than one shooter; the shooting was at a much closer distance or the shots were fired by someone really who wanted to shoot that person.

The boy's mother, Araceli Rodríguez, says she doesn't like to talk about what happened. It's still too hard for the mother of four.

In the last several years, at least 20 people have been shot and killed by Border Patrol agents, out of which at least six have been cross-border shootings.

Border Patrol agents are taught to use deadly force only when they or someone else are threatened with death. Rocks are considered to be potentially lethal because of the size and the proximity from where they are thrown.

The Department of Homeland Security said last year it's reviewing the agency's use-of-force policies as a result of these incidents. A spokesman with DHS's Office of the Inspector General said in an email the review is still under way and they don't have an estimated completion or release date.

José is described by his family as a good kid who wanted to be a soldier and who liked to play basketball and wrestle with his cousins.

His toxicology report came back negative and he had no criminal record.

He was about to turn 17 on Jan. 5 and fly in an airplane for the first time, his family said.

"The lawyer says that I need to be patient, that everything is going to be very slow, but when you see time is passing by and you are suffering and missing a loved one, it's exasperating," Elena said recently. "We just want justice so this doesn't happen again."

VIGIL

• The family, together with a coalition of organizations from both sides of the border, will hold a march on April 10 marking the six-month anniversary of José Antonio Elena Rodríguez's death.

• Attendees will meet at 5:30 p.m. in the plaza across the immigration offices in Nogales, Sonora and on the corner of Grand and Crawford in Nogales, Ariz.

Contact reporter Perla Trevizo at ptrevizo@azstarnet.com or at 573-4213. On Twitter: @Perla_Trevizo

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