Discipline Urged for Agent in Border Shooting

The U.S. Border Patrol has recommended disciplinary action--possibly including a suspension from duties--against an agent who last May fired his service handgun into the back of a van filled with undocumented immigrants, wounding an Salvadoran woman and a Mexican teen-ager.

Authorities have determined that the agent violated patrol guidelines and should be subject to administrative penalties, which could range from a written reprimand to firing, said Ted Swofford, supervisory patrol agent in San Diego.

Officials declined to specify the proposed sanction, but others familiar with the process suggested that a suspension of at least a month without pay is a likely outcome.

The proposed punishment must be approved by Gustavo De la Vina, the chief patrol agent in San Diego. The agent has the right to challenge the finding, both before the chief and in a subsequent hearing before an administrative panel.

The incident, one of a number of controversial shootings of immigrants in the border area by U.S. law enforcement agents last year, drew condemnations from activists in both the United States and Mexico.

Critics said the agent, facing no deadly threat, fired recklessly, endangering the lives of at least 10 people who were inside the van. The officer’s former attorney, Everett L. Bobbitt of San Diego, characterized the agent’s action as a justified, split-second response to a potentially hazardous predicament. (Border Patrol guidelines, like those of other U.S. law enforcement agencies, restrict officers from using deadly force except while attempting to save their lives or the lives of others.)

The FBI conducted an extensive investigation of the shooting, seeking to determine if the agent had violated the civil rights of the van’s occupants. But Justice Department prosecutors decided not to file federal charges, returning the case to the administrative realm.

The FBI also launched inquiries last year into a number of separate incidents involving Border Patrol agents. Among them were the shooting death of a 17-year-old Mexican citizen in San Diego last September, and the shooting in November of a 15-year-old Mexican youth who was atop the border fence separating Calexico, Calif., and Mexicali, Mexico.

In both cases, witnesses have disputed Border Patrol accounts stating that the agents fired in self-defense. The federal inquiries into those two shootings are still pending.

The Border Patrol, an enforcement arm of the U.S. Immigration and Naturalization Service, has refused to name agents involved in any shootings.

However, sources have identified the officer who fired at the van as Michael Paul Ostrander, 38, who was a six-year veteran of the force at the time of the incident. Ostrander returned to active duty this week after having been on paid administrative leave since the shooting.

Ostrander, who has not spoken publicly, could not be reached for comment.

The agent is being represented in the administrative case by the the National Border Patrol Council, the agents’ union. T.J. Bonner, union president, declined comment.

The incident occurred May 25, after the agent and a partner, traveling in a patrol sedan, had stopped a suspicious van along a shoulder of Interstate 5 about 6 miles north of the border.

The agent got out and approached the van on foot. When the van suddenly accelerated forward, the officer, apparently attempting to blow out the vehicle’s tires, fired three shots into its rear section, according to police accounts.

The two people hit--a 24-year-old Salvadoran woman and a 16-year-old Mexican youth--both plan to sue the government, seeking damages for their injuries and related trauma, according to their lawyers.

The Border Patrol customarily keeps internal disciplinary actions confidential, but the agency has revealed the outcomes of several high-profile cases--without mentioning agents’ names.

Last year, the patrol disclosed that it had suspended three agents, including a supervisor, for their role in an incident in which an officer taunted hundreds of Mexican migrants with racial and sexual slurs that had been amplified over his vehicle’s public-address system.