Officer Not Charged in Shooting at Border : D.A.’s Decision Not to Prosecute Brings Waves of Protest From Latino Community

A U.S. Border Patrol agent who shot and wounded a 12-year-old Mexican boy through the border fence during an alleged rock-throwing incident will not be prosecuted, the San Diego County district attorney said Wednesday.

Dist. Atty. Edwin Miller’s decision not to prosecute brought a wave of protest from the San Diego Latino community and the demand by one state legislator that the California attorney general investigate the shooting.

“The determination is that there is no prosecutable case,” said Steve Casey, a spokesman for Miller. “But this is not a judgment that this is a ‘good’ shooting, nor does he (Miller) endorse it.”

On April 18, Humberto Carrillo-Estrada was shot by Agent Edward D. (Ned) Cole, who had been trying to apprehend the boy’s 15-year-old brother, Eduardo, on the U.S. side of the international border. The chase ended at the border fence, about a quarter of a mile east of the San Ysidro port of entry. There, Cole fired at Humberto, who was in a crowd that officials said had been throwing rocks and bottles at Cole and two other agents.

At the time of the shooting, San Diego police officials said Cole fired two warning shots into the air, then fired at least one shot through the fence, hitting Humberto. The district attorney’s report released Wednesday said Cole told police he fired no warning shots but fired three shots at the boy, hitting him once in the back.

Miller’s report also contradicts public statements by the boy that he never threw any rocks. The report says that Humberto admitted throwing rocks. San Diego Police Homicide Lt. Paul Ybarrondo said at the time that the boy had a rock in each hand when the shooting occurred.

On Wednesday, Miller released a five-page letter he sent to William Kolender, San Diego chief of police, outlining why no charges would be pressed against Cole. According to the letter, the federal government has no jurisdiction to prosecute the shooting case. Although the shot was fired in the United States, Humberto was in Mexico when the bullet hit him in the back. The boy was then carried across the border and treated at Mercy Hospital.

The letter also said that the state could only prosecute Cole in a very limited way under very strict circumstances.

“Under federal law, if the person involved in an incident of this sort is an inhabitant of the United States--which includes all people who are physically within the United States--the most serious offense you could charge a federal officer with is a misdemeanor,” Miller said in an interview.

“But in this instance--which is essentially not only a federal matter, but an international matter where the person (victim) is outside of the boundaries of the United States--there is no federal statute that applies at all,” he said.

As a result, the case is dropped back into the district attorney’s jurisdiction, with one major restriction. “The only area that is possible for investigation is under California law regarding (the use of) deadly force,” Miller said.

California law states that people may use as much force as they think is necessary if they feel that their lives are in danger or that they are in danger of great bodily harm.

According to the letter, the crowd on the Mexican side of the border was hurling a fusillade of rocks “the size of small boulders and capable of causing serious injury” over the top of a nine-foot fence at the officers who were trying to arrest Eduardo.

“In the process of making a lawful arrest, these agents were assaulted by a group of persons and were fearful of great bodily injury or death as expressed by Agent Cole,” the letter said. “It is well settled in California law that an assault by rocks can constitute assault with a deadly weapon . . .

“Indeed, even had the incident been tragic and the victim had died as a result of the officer’s shot, California law would present him with a complete defense. Consequently, we decline to prosecute.”

Ever since the April 18 incident, the Immigration and Naturalization Service has contended that Cole was merely carrying out his duty as a federal agent when he shot the boy.

“This decision (not to prosecute) supports our previous statement that Agent Cole’s actions were justified to protect his fellow agents from grave bodily harm during a rock and bottle attack from the Mexican side of the border,” said John Belluardo, director of congressional and public affairs for the INS western region.

Cole was placed on office duty immediately after the shooting, Belluardo said, but he will return to the field once an office replacement for him is found.

“Now that the D.A.’s office has made it’s determination, the INS Office of Professional Responsibility will review the matter as it does in similar cases,” he said. The Office of Professional Responsibility is the INS internal affairs unit, and it will decide if an INS investigation is necessary. Belluardo said he did not know when that decision will be made.

On April 23, the Mexican government demanded that Cole be punished for the shooting. Mexican Consul General Javier Escobar could not be reached for comment Wednesday afternoon.

A State Department official late Wednesday said that the D.A.’s investigation had no bearing on a response to the Mexican government. He said the State Department is awaiting the internal investigation by the INS.

Marco Lopez, Humberto’s attorney, said Wednesday that Miller has “totally abused his discretionary powers as district attorney” by not filing charges against Cole.

“In this particular case, given the facts of it, I think there are elements sufficient to charge Mr. Cole with at least four crimes: attempted murder, assault with a deadly weapon, battery and assault,” Lopez said.

Lopez filed a $3-million claim with the INS last Thursday. If that claim is denied, he said, he will file suit against the INS on Humberto’s behalf. “A civil case is being prepared now,” he said.

Assemblyman Richard Alatorre (D-Los Angeles) told the Associated Press Wednesday that “I will probably tomorrow request that the state attorney general open up an investigation into the shooting of the young man. I can’t prejudge what information the district attorney was working with, but I think it at least warranted a full investigation.”

Herman Baca, chairman of the Committee on Chicano Rights, a San Diego activist group, called the decision not to press charges against Cole “another whitewash, a cover-up by Ed Miller.”

“This, in our opinion, supports our contention that the Border Patrol has a license to beat, rape, shoot and murder children, women and men of Mexican ancestry with impunity,” Baca said in an interview. “The shooting of a 12-year-old child is but the latest incident of violence against persons of Mexican ancestry resulting from the militarization of the U.S.-Mexican border as a policy to resolve the immigration issue.”

Leaders of two other local Latino organizations railed against Miller’s decision in a press conference Wednesday evening, calling it “yet another in a series of injustices perpetrated against Chicanos.”

During the press conference, Jess Haro, chairman of the Chicano Federation, and Roberto Martinez, chairman for the Coalition for Law and Justice, demanded that the San Diego County Grand Jury investigate the shooting. They also said they would call for an independent counsel to assist the district attorney in further investigations “to alleviate any appearance of conflict of interest.”

The two also said they would petition Rep. Jim Bates (D-San Diego) to work toward legislation that would make it illegal for any police officer to shoot across an international border.

“It is ridiculous that you can say someone can shoot a 12-year-old boy and there’s nothing we can do about it. It’s as if they’re saying it’s open season on Mexicans,” Haro said from the Chicano Federation’s headquarters. “It is a serious act when anyone can fire a gun across an international border, injuring a boy, and nothing is done about it. It justifies lawlessness.

“The truth is that Officer Cole shot to kill with a .357 magnum. Undocumented people don’t pose a threat to anyone, let alone armed men with helicopters.”

Times staff writer Kathy Cooley contributed to this report.