A U.S. Border Patrol agent who shot across the border through a fence and wounded a 12-year-old Mexican boy during an alleged rock-throwing incident will not be prosecuted, the district attorney said Wednesday.
The decision brought a wave of protest from the San Diego Latino community and the demand by one state legislator that the state attorney general investigate the April 18 shooting.
"The determination is that there is no prosecutable case," said Steve Casey, a spokesman for Dist . Atty . Edwin L. Miller. "But this is not a judgment that this is a 'good' shooting, nor does he (Miller) endorse it."
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 at San Ysidro. Cole fired at Humberto, who was in a crowd that officials said had been throwing rocks and bottles at Cole and two other agents.
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 report released by the district attorney Wednesday said Cole told police that 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 anything at agents. The report says Humberto admitted throwing rocks.
On Wednesday, Miller released a letter he sent to San Diego Police Chief William B. Kolender, outlining why no charges would be pressed against Cole. Miller wrote that the federal government has no jurisdiction and 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.
California law states that people may use as much force as they think is necessary if they feel that their lives are in danger.
"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," Miller's 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. . . , California law would present him with a complete defense. . . . Consequently, we decline to prosecute."
"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. . . ," said John Belluardo, director of congressional and public affairs for the INS western region.
Cole was placed on office duty after the shooting, Belluardo said, but he will now return to the field and " . . . the INS Office of Professional Responsibility will review the matter. . . ." The investigation will determine if a full INS investigation is necessary.
The Mexican government has demanded that Cole be punished. Mexican Consul General Javier Escobar could not be reached for comment Wednesday.
Marco Lopez, Humberto's attorney, said Miller had "totally abused his discretionary powers as district attorney. . . ."
Facts of Case
"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," the lawyer said.
Lopez filed a $3-million claim with the INS. If the claim is denied, he said, he will file suit.
Assemblyman Richard Alatorre (D-Los Angeles) told the Associated Press on Wednesday that "I will probably tomorrow request that the state attorney general open up an investigation. . . . 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 San Diego activist group, Committee on Chicano Rights, called the decision "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."
Jess Haro, chairman of the Chicano Federation, and Roberto Martinez, chairman for the Coalition for Law and Justice, demanded that the county grand jury investigate the shooting.