Inquiry Drags On in Border Agent’s Shooting at Van

Almost six months after a U.S. Border Patrol agent fired his revolver into a van loaded with undocumented immigrants, federal prosecutors are still reviewing the case to determine if the officer violated the civil rights of two passengers who were shot and wounded.

“It’s still an open matter,” said Obern Rainey, a spokeswoman in Washington for the civil rights division of the Department of Justice.

Meanwhile, Francisco Ricardo Carbajal, a 16-year-old Mexican who was shot twice in the head in the incident, has filed a $1-million civil claim against the Border Patrol, contending that the agent acted “negligently and carelessly,” said his lawyer, Michael D. Padilla of San Diego. The other victim, Lilian Pineda, a 25-year-old Salvadoran woman who was shot in her right arm, also plans to file a negligence claim, according to her attorney, Jan Bejar of San Diego.

The two victims are recovering from their wounds. Each lives in California with relatives.

The agent, Michael Paul Ostrander, 37, has been on paid administrative leave since the shooting, which occurred before dawn May 25.

Border Patrol authorities, in accordance with agency policy, have refused to provide the name of the agent, but other sources have identified him as Ostrander, a six-year veteran of the patrol at the time of the incident.

The placing of an agent on such long-term adminstrative leave is unusual, Border Patrol officials said, as agents involved in shootings are usually assigned to temporary desk duty. In most shootings, Border Patrol supervisors quickly issue preliminary public findings stating that the use of deadly force appeared to have been justified by the threat. There has been no such statement of justification in this case. Agency officials say they are awaiting the result of the federal inquiry.

The case is one of the most high-profile among a number of Border Patrol shootings in San Diego that have generated condemnations from immigrant advocates, and there is considerable interest in the outcome of the civil rights inquiry. A federal grand jury in San Diego heard testimony in the case last summer, but no indictments have been handed down, and no other results have been made public.

No one has yet publicly explained exactly what deadly threat, if any, prompted the agent to open fire. The Border Patrol, like other law enforcement agencies, requires that agents resort to deadly force only to protect their lives or those of other innocent people--not to stop a suspect from fleeing.

The incident occurred along the eastern shoulder of the northbound lanes of Interstate 5 in Chula Vista, about 6 miles north of the U.S.-Mexico border.

At the time of the shooting, authorities said, at least 10 people were inside the van. Ostrander and his partner, according to the Border Patrol, suspected that the vehicle might have been ferrying illegal aliens northward along I-5, a principal smuggling route.

The agents, who were following the van in a marked Border Patrol vehicle, had illuminated their overhead lights in an effort to stop the van. The van at first took evasive action designed to avoid capture, according to the Border Patrol, but it eventually pulled over to the shoulder and stopped. The agents had determined by the time it stopped that the van had been stolen, the Border Patrol said.

An agent stepped out of the Border Patrol vehicle and approached the van on foot from behind, according to official accounts. But the van suddenly began to accelerate forward, and the agent fired three shots from his .357 magnum service revolver into its right rear side, authorities said.

A central question is what the agent hoped to accomplish by firing. He might have been trying to shoot out the vehicle’s tires, said Lt. Dean Girdner of the Chula Vista Police Department, who handled the initial investigation. But he added that all three bullets struck well above the right rear tire; the lowest hit a taillight.

He also might have feared that the vehicle was going to back up toward him and his partner, Girdner said. However, the lieutenant added that there was no evidence the van ever did go backward.

Critics have called the shootings extremely reckless, noting that only luck prevented deaths as the bullets pierced the vehicle and whizzed through the crowded cabin.

“This is one of the most egregious cases of abuse that we’ve seen,” said Roberto Martinez, a longtime Latino activist who closely monitors border issues.

But the agent’s attorney, Everett L. Bobbitt of San Diego, a former El Cajon policeman who often represents area law enforcement officers, said the agent’s actions were justified.