April 8, 2008. The prosecution called Agent VB to the stand.
He walked up from his seat at the defense table, a few feet away from where the parents of Juan Patricio were sitting. I don’t think Cesar and Irene had realized before —I’m not sure I had realized—that this man, who had been sitting so close to them for a day and a half, was the very man who had shot their son. Enrique Moreno, lead counsel for the prosecution, enlightened us all with a directness that startled me.
You shot Juan Patricio Peraza?
That is correct, sir.
So began the second day of the trial. Enrique went on to ask VB about his training: graduation from the Academy in May 2002, trainee status until January 13, 2003— just a little more than a month before Juan Patricio was killed. Had VB been told about Annunciation House during his training? He had. And was he aware of Border Patrol’s policy not to work schools, shelters, or churches? He was.
VB testified that he had been trained in the appropriate use of force and in de-escalation techniques, which he explained were methods of getting a noncompliant person to be compliant. What were some examples of de-escalation techniques? “Officer presence” was one—simply showing up in a Border Patrol uniform. Others included talking, physical techniques, and cooperation with other agents.
And how about the use of deadly force? Was VB trained in that? Of course he was. The Border Patrol had many policies and training manuals regarding the use of force. And VB agreed with Enrique Moreno that there was no situation in which it was more important to follow guidelines than in the application of deadly force. It is to be used only in self-defense, or to defend another person. And there is no distinction between the two defenses: that is, an agent is equally justified—even obligated—to use force to protect another agent or to protect himself.
So if a subject threatened and charged at another Border Patrol agent, you’d shoot to protect him, wouldn’t you? asked Enrique.
And you wouldn’t wait to see if that agent shot him first, would you?
How many people shot Juan Patricio Peraza?
Enrique asked VB to tell the court what had happened on the morning of February 22, 2003. VB had been parked in his patrol vehicle down by the river, near the intersection of Delta and Coles. Listening to radio traffic, he heard about some kind of commotion at San Antonio and Hills Streets—a few minutes’ drive away. “He took a swing at me,” he heard an officer say over the radio. VB called in on his own radio and said he was heading over to San Antonio Street. “Watch my spot,” he said. He heard nothing over the radio about the subject possessing a weapon, and he did not receive any additional information during his drive except that the location of the subject had changed slightly. When he arrived at the scene, he observed from a distance some agents involved in a commotion. He could see that they had their guns drawn on a young man holding a pipe.
But more important, Enrique pointed out, were the things that he did not observe. He did not note how many Border Patrol agents were present. He could not estimate how far they were from the subject. He did not see the young man swing the pipe. He didn’t know whether the other agents had a plan, or who was acting as a leader among them, or whether any progress had been made in talking to the subject. He showed up without a clear idea of what he was going to do.
But you didn’t just come out firing, did you? asked Enrique. You don’t just barge into a situation like this, do you?
Because that would be unreasonable.
So certainly you held back before shooting, didn’t you? You held back and assessed the situation?
“I did not hold back, sir.”
It seemed incredible to me that he just admitted that. But he believed his actions were completely justified—or at least he has justified them to himself in these five years since the shooting. The scene was chaotic; he didn’t know what was happening; he felt threatened; he shot. He gave the impression that he felt he had no choice.
Enrique asked VB carefully about distances: the initial distance between himself and Juan Patricio, and the distance at the time Juan was shot. VB stated that when he arrived on the scene he yelled at Juan, “Stop! Drop the pipe!” He said that Juan charged, ran at him, and he yelled a second time, “Drop the pipe!” Then he fired his gun.
In his deposition, VB had estimated that the initial distance between himself and Juan was about twelve feet. Juan fell about eight feet away. So this “run” must have lasted about four feet, during which VB had time to yell Stop, wait to see if Juan would listen, and then fire. All of this happened between 8:39:31am, when VB announced his arrival on the scene, and 8:40:15am, when the radio transcripts record that an ambulance was summoned. Less than forty-five seconds.
After you shot him, said Enrique Moreno, you did something strange, didn’t you?
The defense lawyer objected. The objection was sustained. Enrique rephrased his question.
After you shot Juan Patricio, what did you do?
I holstered my gun.
And then what did you do?
I attempted to gain control of the subject.
What does that mean?
I attempted to handcuff the subject.
But you had just shot him. He was lying face down on the ground. None of the other officers moved to “control” him.
I was closest.
They pulled you off of him, didn’t they?
They stopped you and told you, “That’s not necessary.”
I stopped taking notes for a moment, a little stunned, and whatever VB’s reply was, I missed it.
After the shooting, a Border Patrol supervisor soon arrived. He switched guns with VB (standard protocol, apparently) and told VB to remove himself from the scene. He left with another agent. They stopped first at the Diamond Shamrock, where VB bought cigarettes. Then they drove to Border Patrol Headquarters out at Camp Montana. VB spoke to his lawyer, other agents, and his union representative before his interview with the El Paso police department some four hours later. It was the only interview he would be subjected to in relation to the shooting.
Are you troubled by any of your actions in this case? asked Enrique Moreno.
I performed my duties correctly, sir.
Would you do anything differently, given the chance?
VB leaned forward in his seat. I never wanted to kill anyone in my life. But I had no choice. He made the choice, not me.
The prosecution dismissed VB at last and called Border Patrol Agent CD to the stand. CD had been the first to make contact with Juan Patricio in the parking lot outside of Annunciation House. Now in the courtroom the prosecution played a video that CD had made some days after the shooting, in which he walked through the scene with police investigators and explained what had happened. They stopped the video every few minutes and asked CD about the events recounted in it. At first CD was evasive, answering “I don’t know” to almost every question—even when asked for his own opinion. A man sitting behind me leaned over to his neighbor and whispered, “He’s got a bad memory…” Finally Lynne Coil, co-counsel for the prosecution, asked the judge to instruct the witness to answer her questions. I don’t know didn’t count as a response, she said. The judge replied that he wouldn’t instruct a witness how to answer a question, but he would be evaluating each witness for credibility. After that, CD’s answers got a bit more definite.
He explained how he had chased Juan down Olive Street, through a backyard and back out to San Antonio Street. At one point he stood within a few feet of Juan with his gun drawn. Juan had swung at CD earlier with his fists earlier (though never actually struck him), and he now held a piece of pipe. Yet CD chose not to shoot. Instead he retreated, went out to San Antonio Street and radioed for backup. He said he’d never pointed a gun at anyone before. He didn’t want to shoot. He had options, and he chose not to use his gun.
Out on the street, four other agents joined CD. They surrounded Juan Patricio. For several minutes they talked to him, with one agent, R, acting as a point person. They holstered their guns at one point. They took the guns out again a little later, but even then R yelled to CD, Take your finger off the trigger! They didn’t want to shoot.
In the video, the police investigators asked CD, What were you thinking?
He replied: I was thinking, “Why is this happening? Why is this happening? We’re not going to do anything to him. He has nothing to fear from us! We do this every day.”
While VB had been stoic and unemotional during his testimony, CD seemed troubled. Certainly in the video he became emotional at one point, and the tape was stopped for some moments to allow him to collect himself. Lynne asked if this incident had been difficult for him.
It was difficult, ma’am.
The final witness of the day was Francisca Muñoz, a neighbor who had witnessed the shooting. She testified to seeing Juan Patricio surrounded by Border Patrol agents out in the street. She said he was holding the pipe in front of him and bouncing it up and down on the ground. He seemed afraid and jumpy. The agents yelled at him to drop the pipe. He did not drop it, but at no time did Francisca see him swing the pipe or even raise it above his head. Nunca, she declared, nunca, nunca. Nor did she ever see him lunge toward an agent. He was turning where he stood, and as he turned, someone shot him. She didn’t see who. Her vision went blurry the moment the young man was shot. After Francisca finished her testimony, the court was adjourned.
At the end of the day I am thinking about choices: the choice to use violence, and the choice to refrain. Agent VB seemed to think that he didn’t even have a choice—that Juan Patricio had forced him to act as he did. He made the choice, not me. Agent CD, in a similar situation (but at even closer quarters with Juan Patricio, and without other agents around to back him up), had acted quite differently. He retreated. He exercised restraint. He protected himself—but did so in a way that avoided deadly harm to another.
What was the difference between these two men? Both were new agents, scarcely finished with their training. Both, I imagine, were scared and running on adrenaline, and surely neither of them ever wanted to shoot anyone. Perhaps the difference between them was as simple as this: one of them recognized his own power to make a choice, while the other did not. In failing to recognize this power, VB absolved himself of responsibility for his own actions. He freed himself to be rash, to be unreasonable. He was running, one might say, on autopilot. Certainly that would explain his attempt to handcuff a dying nineteen-year-old man.
It is VB’s disavowal of choice, this suggestion that Juan Patricio’s shooting was inevitable and his own fault, that seems incredible to me. No choice not to shoot someone—when that someone is a dozen feet away, armed with only a pipe and facing six trained men with guns? Couldn’t the agents have sought cover, if they had felt Juan Patricio was such a threat? Couldn’t they have used intermediate forms of force—or simply retreated?
And the reason they were after him at all—the thing that had set all this in motion, the reason they would not simply walk away and let him go free—seems almost ridiculous when compared to the seriousness of the consequences. A few routine questions (Where are you from? Do you have papers?) had escalated into a violent confrontation that left Juan Patricio dead. Yet he had committed no crime, and had given the agents no reason to detain him—except that he was brown-skinned, and spoke Spanish, and was undocumented.