Survivor’s Story, Official Version of Shooting Clash : Accounts Shed Confused Light on Deadly Incident at Border

On the evening of Jan. 27, 1988, two groups of men converged in the darkness of the U.S.-Mexico border area of southern San Diego County.

When they met, one group--officers of the Border Crime Prevention Unit, a joint anti-crime squad of San Diego police and U.S. Border Patrol--fired at least 45 bullets, killing two men who the officers said were thieves. When one pulled what appeared to be a gun, the lawmen began firing, police said.

Luis Fernandez Bonilla, a 24-year-old undocumented immigrant from Mexico, was shot 8-10 times, but survived. Like a number of the survivors of shootings by the border anti-crime unit, Fernandez contends that he was wrongly targeted, that he was just another pollo , as undocumented migrants are universally known along the border, when he was attacked without provocation by the lawmen. He says he and his two companions, whom he describes as smugglers, were unarmed. Investigators found one toy gun and parts of another at the scene.

A Rare Acquittal

While his claims are not necessarily unusual, Fernandez’s case is singular: In December, a Superior Court jury in San Diego acquitted him on charges of attempted robbery after a two-week trial. Most survivors of unit shootings are convicted of crimes related to the confrontations.

Jurors, who took the unusual step of making a donation to Fernandez’s welfare after the verdict, said they were struck by the fact that the officers never announced themselves as lawmen. One Border Patrol agent testified that he deliberately attempted to appear like an illegal alien, an apparent violation of the unit procedure.

“If they had identified themselves as policemen, I personally believe that he (Fernandez) never would have been shot and the other two would not have been killed,” said David Stickels, a 39-year-old San Diego data-processing consultant who was the jury foreman. “This poor man spent almost a year in jail, and he was innocent.”

The office of Dist. Atty. Edwin Miller, which reviews all deadly force shootings by law enforcement agencies, ruled that the officers’ actions were legally justified.

Fernandez, who is disabled from his injuries and without money for medical treatment, last month filed a $2-million civil lawsuit in U.S. District Court against the officers and the City of San Diego, contending that he was wrongfully shot.

The events of Jan. 27, 1988, provide an unusual glimpse at the inner workings of the special unit as it patrols the canyons, hills and ravines of the borderlands, which one police official calls “the most dangerous police beat in the United States.” Police, Border Patrol officers and Fernandez say they stick by the widely divergent accounts that they outlined during court proceedings.

On that evening, the officers began their shift near dusk at the unit’s office in southern police division headquarters, situated among the currency-exchange houses along bustling San Ysidro Boulevard, a half-mile north of the border. After discussing their mission, eating and getting their equipment ready (all wear bullet-proof vests and generally carry two weapons), the men were “inserted”--that is, dropped off by vehicle--at about 8 p.m. near Cactus Road, just south of the airport at Brown Field. Their destination: An area known as the E-4 turnaround, just north of the border and about half a mile east of the port of entry at San Ysidro, where intelligence reports indicated several robberies.

The men said they were dressed in standard unit garb, including badges displayed on the outside of their outfits.

One group of six officers began walking approximately a mile and a half west toward the reported robbery site. They hiked through Wruck and Spring canyons, passing to the north of a ravine nicknamed Dead Man Canyon and the large staging area known to U.S. authorities as the Soccer Field and to Mexican citizens as Zapata Canyon.

Each team member had a specific position and duty: Officer Celso G. Cueva, then 33, a 10-year veteran of the force who had served on 200 previous unit missions, was the point man who led the team; at the rear was Border Patrol agent Dana Cunningham, the “shot-gunner” who toted a Remington 870 shotgun and was responsible for covering the rear along with Border Patrol agent James Eliason, dubbed the “tail-gunner”; in between were Patrol Agent Raymond Montoya, designated the “bagman,” meaning he carried the bag with binoculars and flares; San Diego police Sgt. Stephen Stone, the team supervisor, and police officer John Bailey.

Suspicious of Strangers

About 8:40 p.m., the officers, now heading west in the dark on an unmarked dirt road, said they saw three figures who appeared to parallel them along a dirt track about 100 feet to their south, on the other side of a small pond. Cueva, the point man, clicked his fingers to alert team members.

Suspicion was aroused, according to testimony, because the three appeared to be attempting to beat the patrol to the junction where the narrow footpath intersected the larger road. Team members thought the trio’s movements to be consistent with that of robbers and atypical for undocumented border-crossers, who generally avoid contact with other groups and concentrate on heading north, according to testimony.

“It seemed . . . that we were being either stalked or cut off,” agent Cunningham, then a nine-year-veteran of the Border Patrol, recalled in a police interview.

Officer Bailey, who had been involved in two other border shootings, told police: “These guys were up to no good and they were after us. The way they were moving . . . the way they were kinda hunched over and paralleling us. . . . I knew it didn’t look good. . . . It was bad. . . . And they come, creepy, creepy. All the way, you know, playing the bush game.”

Luis Fernandez Bonilla is the oldest of five children from an impoverished family in the central Mexican state of Zacatecas. Eight years ago, he said he worked for about a year picking lemons and doing other farm work near Temecula, in southern Riverside County. He was arrested by U.S. immigration authorities, he said, and returned home to Mexico. Last year, he decided to try again.

After a two-day bus trip, he said he arrived in Tijuana in late January with less than $50 in his pocket. On three occasions, he tried to cross the border but each time he was caught by the Border Patrol, he said.

After his third arrest, Fernandez said he met two men--he said he never knew their names--at the Border Patrol’s San Ysidro lockup facility. The two agreed to guide him across the border and to Temecula, where he hoped to find work with his old employer. He said he was to pay the smugglers $300, a fee that would be deferred until he had worked a few weeks.

On the evening of Jan. 27, Fernandez said he hooked up with the two coyotes (smugglers) in a downtown Tijuana park about 6:30 p.m.; they boarded a bus headed for the city’s Colonia Libertad, the teeming border neighborhood that is principal gateway to the north for the streams of migrants who arrive daily in Tijuana.

The three men walked for about half an hour in the dark, according to Fernandez, following one of the many trails frequented by the canyons’ silent population. Finally, he said they came to a small intersection, where they stopped to wait for another coyote with a group of crossers. They waited only a few minutes, standing, hands in their pockets to stay warm, eyes alert for la migra , Fernandez recalled. Then, a group of people came walking up the road.

“They appeared normal, like pollos,” Fernandez said. “ There are a lot of people walking in the hills there.”

One of his two colleagues approached the group to see if one of them was the man they were waiting for.

“There weren’t any words,” Fernandez said. “They just opened fire.”

As the two groups converged, the lawmen didn’t try to identify themselves. Agent Eliason testified during Fernandez’s trial that he tried to hide his face and conceal his identity.

“I did not want them to see me as anything but an illegal alien heading north,” Eliason testified during cross examination.

That comment indicates an apparent violation of the unit’s regulations: Officers are not supposed to pose as aliens.

Donald L. LeVine, Fernandez’s San Diego attorney, cited Eliason’s comment as evidence that the team “was posing as undocumented aliens.”

The officers’ version of the confrontation between the two groups varies greatly from the scenario outlined by Fernandez.

Didn’t Act Like Aliens

The lawmen agreed that Fernandez and his two colleagues reached the junction before the officers. However, officer Cueva recalled that the trio crouched down in the middle of the road--an act that heightened suspicion among the wary officers. “Aliens,” Cueva explained during a court hearing, “don’t lollygag; they continue straight through.”

One of the three men, Cueva said, turned around and approached him, moving within three feet of the officer. The man opened his coat, reached into his waistband and began pulling out what appeared to be “a four-inch blue-steel revolver,” according to testimony by Cueva. The officer said the man ordered him, No te muevas! (Don’t move!) in what Border Patrol Agent Montoya later described as a “growling-type voice.”

“I feared for my safety and the safety of my partners, thinking there was going to be a robbery and one of us was going to get shot,” said Cueva. One of Cueva’s hands was in the pocket of his black jacket, clutching one of two 9-millimeter Smith & Wesson pistols he was carrying. “I removed my handgun . . . and opened fire on him.”

Cueva emptied the 9-shot chamber. He said the man ran west along a dirt road for a few seconds, then he disappeared over the side of the road.

After the initial shooting, Cueva said, there was a slight pause as the other two men appeared to fan out to the right of the first man. According to officers’ testimony, Fernandez and the other man charged the officers; Fernandez had what appeared to be a pistol in his hand, Eliason testified.

Police investigators later counted a total of 45 shells.

“I’ve rehashed this stuff over in my mind,” Officer John Bailey told police investigators a few hours after the shooting. “It’s amazing how instinct takes over. . . . I feel comfortable in what I did.”

When the shooting started, Fernandez said his first thought was that the men must be thieves. Like a number of others shot by the unit, he said he never saw any uniforms or badges until after the shooting.

He said he was running away from the men when he was hit from behind and fell. While he was on the ground, he said the officers continued to fire at him, peppering both legs with bullets and hitting him once on his hip. Fernandez said he continued rolling over an embankment, which shielded him from the gunfire.

Once the bullets ceased flying, he said an officer approached with a flashlight, and kicked him to turn him over.

Dead at the scene was Carlos Hernandez Reyes, 24, address unknown, the man who allegedly approached the officers. The other dead man was identified as Mario Perez Jasso, 21, of Tijuana.

Two Weeks in Hospital

Fernandez spent almost two weeks in Mercy Hospital in San Diego being treated for his wounds. He learned he was being charged with attempted robbery.

After his hospital treatment, Fernandez spent almost 10 months in the downtown San Diego County jail. While there, the sheriff’s office refused to allow an operation to reconnect his colon, which was severed in the shooting, because his predicament was “not life-threatening,” said a sheriff’s spokesman. The procedure would allow him to discontinue use of colostomy bags.

As the testimony unfolded during his two-week trial, some jurors apparently found it hard to believe that Fernandez would pull out a phony weapon in the midst of the obvious police firepower. “I don’t think there was any way in the world that he was reaching for a toy gun after real bullets started flying,” said Stickels, the jury foreman.

Fernandez was eventually acquitted. He was released onto the streets of downtown San Diego, wearing only a paper suit and socks. (Jail rules state that prisoners can only leave with the clothes they were wearing when they arrived; he arrived in hospital garb.)

Shoeless and wearing the paper suit, Fernandez said he took the trolley to Tijuana, and checked into a hotel, using money provided by his attorney and $40 donated by the jury. The next day he bought clothing and food. Broke, unable to work, fighting infections and fearing he would run out of money for his colostomy bags (which cost about $5 each), Fernandez said he soon crossed the border again.

Now, he lives off charity, staying with some residents of North San Diego County. In need of medical attention, he fears going out in the streets because he could be arrested and returned to Mexico as an illegal immigrant. The civil suit is likely to drag on for more than a year.

“In the future, I see myself dying of an infection or some other illness,” he said during a recent interview at the house where he is staying, fumbling with checkers on a board. “ . . . What happened to me was worse than an injustice. I have nothing. And all for some kind of a mistake. . . .

“It’s a high price to pay, just for being a Mexican illegal in the United States.”

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