2nd Border Visit : Boy’s Shooting Explored Again by Van de Kamp

For the second time, state law enforcement officials Monday visited the border site where a 12-year-old boy was shot by a Border Patrol agent.

Atty. Gen. John Van de Kamp said the second visit was intended to clarify some discrepancies in reports of the shooting.

Monday’s trip to the scene was made by Steve White, chief assistant attorney general for criminal matters, along with members of the San Diego County district attorney’s office, Van de Kamp said. Three weeks ago Van de Kamp toured the shooting site for 90 minutes. He indicated Monday that his office is conducting a serious investigation of the incident.

Humberto Carrillo Estrada of Tijuana was wounded April 18 when agent Edward D. (Ned) Cole fired three times through the border fence with a .357 magnum pistol. The youth was hit once in the left shoulder and was hospitalized in San Diego before returning home after recovering from his wounds.

Cole told police investigators that he fired at Humberto after the youth and a teen-age girl began throwing rocks over the fence at two agents who were trying to arrest Humberto’s brother, Eduardo. Eduardo, 15, was attempting to climb the fence and return to Mexico after buying a hamburger at a San Ysidro fast-food restaurant.

Van de Kamp said that White’s visit to the scene was intended to gather information to answer questions raised during Van de Kamp’s earlier visit to the site.

“We hope to pinpoint better the placement of some of the people during the incident,” said Van de Kamp. “We want to make sure we understand where he (Humberto) was . . . and to analyze what would be reasonable action (on Cole’s part).”

After reviewing police reports of the shooting, Dist. Atty. Edwin Miller announced May 1 that his office would not prosecute Cole. In a five-page letter to San Diego Police Chief Bill Kolender, Miller said that Cole was justified in shooting the boy because he felt that agents’ lives were threatened by the rocks and bottles thrown at them. Police homicide investigators investigated the shooting and forwarded several reports to Miller.

Marco Lopez, Humberto’s attorney, asked Van de Kamp’s office to investigate the shooting after Miller decided not to prosecute Cole. Van de Kamp said his office agreed to investigate to determine whether Cole violated any “assault laws” and whether Miller acted properly in not prosecuting.

“We want to see if there’s a violation of state laws, assault laws . . . and to find if there was a lack of justification by the officer,” said Van de Kamp. “We have to evaluate all of the circumstances and if the district attorney abused his discretion.”

Van de Kamp indicated that information in some reports of the incident was inconsistent with the evidence at the scene.

“Our early information was a little bit off in respect to where (Humberto) was (standing) at the fence,” said Van de Kamp. He said that White’s visit to the scene was intended to “better figure out the placement” of the people involved in the shooting.

Police homicide investigators noted some discrepancies in Cole’s version of the shooting, particularly in Cole’s recollection of where Humberto was standing when he was shot. According to Cole’s statement to police, the boy was standing by a hole in the fence with a rock in hand, his arm cocked and ready to reach through the hole and strike agent Pat Lonergan, who was handcuffing Eduardo.

Copies of the San Diego police reports obtained by The Times note “discrepancies involving his statement as to where the young man was standing when shot.” The report goes on to say that “Cole continually maintained that, to the best of his knowledge, the boy was at the hole in the fence within arm’s length of his partner.”

“It doesn’t appear that way,” Van de Kamp said when asked if the boy could have been standing where Cole said he was.

Lonergan told investigators that the rock throwing made him fear for his safety, but he said that he was not hit by the rocks and never yelled out for help. Miller’s report said that none of the agents was hit by rocks or bottles.

Asked if the shooting might have involved the use of excessive force, a police report quoted Lonergan as saying, “It’s hard to say. I don’t know . . . If I saw someone getting rocked like I was, I don’t know what I’d do.”

Cole’s version of the incident also differed slightly from Lonergan’s. Lonergan told homicide investigators that there were about five people, including Humberto, who gathered on the Mexican side of the fence before the shooting. Cole said he saw a crowd of about 30 people that later grew to 50.

Van de Kamp’s office also received as evidence several photographs made by a Mexican press photographer who happened by the scene during the shooting. A defense investigator’s report says the photos show “a conspicuous absence of rock-throwing people in the area of the disturbance.”

In his statement to police, Cole said that Lonergan mentioned “something about someone taking pictures from the other (Mexican) side.”

Border Patrol spokesman Ed Pyeatt said Monday that Cole was involved in a rock-throwing incident three years ago, when he was knocked off his horse. Cole suffered a gash on his forehead that required 14 stitches to close when an unidentified alien hit him with a rock. He got up off the ground and emptied his revolver at a crowd of aliens, possibly wounding three of them, another agent said at the time of that incident.

Since the April shooting, Cole has been transferred to Border Patrol duty in Buffalo, N.Y.

On Monday, Van de Kamp said his office has several options available if state prosecutors find that Cole may be guilty of assaulting Humberto. He said that Miller may reopen the case or the state may call for a county grand jury investigation of the incident. If a decision is made by Van de Kamp or Miller to prosecute, Cole has the option to be tried in federal court.