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Agent cleared in 2005 border shooting

Federal probe found insufficient evidence to charge the officer.

February 16, 2008|Richard Marosi | Times Staff Writer

SAN DIEGO — The U.S. Department of Justice has cleared a Border Patrol agent of any wrongdoing in the fatal shooting of a suspected smuggler whose death two years ago focused attention on increasing violence at the California-Mexico border.

The 18-year-old who died, Guillermo Martinez Rodriguez, was allegedly throwing rocks at the agent, who shot him in the upper back on a dangerous stretch of the San Diego-Tijuana border in December 2005.

Prosecutors in the Justice Department's civil rights division, who investigated whether the shooting constituted an excessive use of force, said there was insufficient evidence to bring charges.

The case was closed Feb. 1 and made public after an inquiry by the Los Angeles Times. The Border Patrol did not release the name of the agent. Migrant-rights groups and the lawyer for Martinez's family said the investigation did little to dispel their impression that the agent's actions were unjustified.

The shooting occurred in an area of frequent clashes between agents and rock-throwing youths, and critics contended that some of the Border Patrol's actions there had gone too far.

"The guy shouldn't have been throwing rocks . . . but in this case it seemed the rock throwing was done" before the shooting, said Enrique Morones, president of the Border Angels, a San Diego-based migrant-rights group. "There was no need to shoot and kill him."

Agents rejected accusations that the investigation whitewashed the incident, saying the government has not shown reluctance to charge federal officers on other occasions.

In the most notable example, federal prosecutors in 2006 gained convictions against two Border Patrol agents in Texas for assaulting a smuggler. That case ignited a storm of protests from members of Congress and calls for presidential pardons.

Under the Border Patrol's use-of-force guidelines, agents are permitted to employ lethal force against rock throwers if they pose a threat. Large rocks have seriously injured many agents. Some wear helmets and riot gear when patrolling certain areas.

Federal prosecutors did not disclose details of their investigation. But agents said the fact that Martinez was shot in the back didn't necessarily mean he was running away. He could have just finished throwing the rock, or he could have been reaching for another, they said.

"If you want to go home to your family and friends, you're going to do what you can to protect yourself," said Chris Bauder, president of the San Diego chapter of the National Border Patrol Council, the union that represents Border Patrol agents.

The shooting occurred across from Tijuana's Colonia Libertad neighborhood, where young men regularly pelt agents with rocks to divert their attention from smuggling operations.

The agent, an eight-year veteran at the time, encountered Martinez holding a ladder near the secondary border fence inside the California border. Martinez appeared to throw a rock, prompting the agent to fire a single shot, according to the Border Patrol. Martinez stumbled back into Tijuana, where he died at a hospital.

The shooting prompted protests across Mexico, and the administration of then-President Vicente Fox requested an investigation. Mexican officials this week declined to comment on the dismissal of the case, saying they had not been formally notified by U.S. authorities.

Martinez, the father of two children, was initially portrayed in the Mexican media as a hardworking immigrant crossing the border in search of work. A murkier picture emerged when U.S. agents disclosed that he had been arrested 11 times for illegally entering the country. Residents of the area where the shooting occurred said Martinez was known to work for smuggling groups.

Violence in the area has surged to record highs recently.

Agents have retaliated against rock throwers by using tear gas and pepper spray in densely populated neighborhoods. The measures have dispersed attackers but also forced the evacuations of dozens of residents, prompting protests from the Mexican government.

richard.marosi@latimes.com

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