April 11, 2008. On the final day of the trial, the defense asked VB to take the stand again. His testimony earlier in the week had focused on his actions on the day of the shooting. Now, the defense asked about his background, his education, his family. He has a two-year-old daughter. They were humanizing him, which I could appreciate. He said this whole incident had been difficult for him. He couldn’t sleep for a long time after. Again I thought, there will be no winners in this case. Everyone has already lost.
Did you perform your duties to the best of your ability? the defense lawyer asked.
Yes, I did.
Were your actions based on your training as a Border Patrol agent?
Yes, they were.
Could you have done anything differently to prevent the shooting?
No, he said.
Except for not shooting, I suppose.
In the cross-examination Enrique Moreno again went over the list of things that VB didn’t know, and didn’t find out, when he arrived on the scene. He didn’t know the number of officers, their position, who was in charge, whether progress had been made, whether the subject had a means of escape…the list went on. And all of those things were important, weren’t they?
VB agreed that they were.
According to his training, a Border Patrol agent was required to assess these things before resorting to deadly force, was he not?
And without knowing all this you decided, within five or six seconds after arriving on the scene, to kill a man.
After VB’s testimony there was some brief rebuttal and submission of evidence. Then both prosecution and defense closed their cases. The court took a three-hour break and reconvened after lunch for closing statements. Enrique Moreno spoke first. “The truth is in the details,” he told the judge, and he promised to walk carefully through the important details of the case. But first, he wanted to offer some perspective. How was it possible that five trained Border Patrol agents could not subdue one scared boy with a pipe?
Two agents were somewhere they shouldn’t have been: a homeless shelter. They picked out Juan Patricio for questioning, and a foot chase began. Now, they were not chasing a murderer, a terrorist, or an armed man. They were chasing a nineteen-year-old boy for immigration violations. But the chase became a standoff: five agents and a scared nineteen-year-old with a pipe. Those five agents knew the rules. They established distance between themselves and the subject, a distance that all five agents estimated at fifteen to twenty feet. They never saw Juan Patricio swing the pipe. Rather, he was using it to maintain that distance.
Then Agent VB arrived on the scene. He didn’t have a clue about what was going on. He came racing in, squealing his tires, and he yelled, and he startled Juan Patricio. He approached eight feet closer than any other agent. Within five or six seconds after he arrived on the scene, he had killed a nineteen-year-old boy. The foot chase had turned into a shooting.
We as a society allow Border Patrol agents to carry guns, said Enrique. Their job can be difficult. All we ask is that they use ordinary care; that they be reasonable. Every agent has testified that you don’t just barge into a situation like this. You could make things worse. Instead, you have to assess. You have to act strategically and tactically. And here, Agent VB failed.
The government would tell the court that this shooting was justified. That they had made a fair, objective and thorough investigation into the incident and decided no disciplinary action was needed. This is the same agency that whisked its agents away after the shooting, bought them pizza and Coke, left them in a common room and told them to work on their statements. And never asked the shooter a single question about what had happened.
“Your honor,” said Enrique, “I don’t mean to be flippant. But I wonder, if Agent R had run over Juan Patricio with his car, and killed him, and done some damage to the vehicle, at least a memo might have been generated.”
Mr. Brown began the defense’s closing statement with some things about tort law, and then turned to the heart of his argument. The government did not dispute, he said, that this was a foot chase that turned into a shooting. But it did disagree with the prosecution about what led to this. “Let’s look at how Mr. Peraza got here,” said Mr. Brown. He crossed into the country illegally—twice. He was deported once and had come back across. After he arrived at Annunciation House (and this case was not about Annunciation House, or whether that house should even exist, Mr. Brown added as an aside), he was stopped by Border Patrol, and he ran. Mr. Peraza was a boxer. He’d been deported once, so he knew the routine. It shouldn’t have been a threatening situation. Yet Mr. Peraza resisted, and assaulted a Border Patrol Agent.
Mr. Peraza was one hundred percent responsible for this situation, said Mr. Brown. All he had to do to end it peacefully was to put down the pipe. Instead, he forced the agents to make split-second decisions. And so he is like a drunk driver who gets into a crash and then says, That other car should have gotten out of my way. Or like a drag racer who runs a stop sign, hits another car, and says, They should have seen me coming.
Mr. Brown paused. I know we’re not supposed to get personal, he said, but I want to say a word to the plaintiffs, to Mr. Peraza and Ms. Quijada. I know this trial has been difficult for them. Everything we’ve said has focused on their son’s actions on this single day. We don’t mean to speak badly of Mr. Peraza in general. We’re sorry if this has caused them pain; it was not meant in that way.
Enrique had one final comment. I struggle to see how the example of the drunk driver applies here, he said. Perhaps a better analogy would be if a police officer pulled over a drunk driver…and shot him.
There were a few closing remarks from the judge, purely administrative. Then the trial was over.
The lawyers have until May 5th to turn in their final reports, after which I suppose the judge will make his decision. I really have no clear sense of which way he will rule. Who will he decide bears responsibility for the death of Juan Patricio? The defense argued that Juan himself set in motion the chain of events that led to his death. Whether that’s true depends, I suppose, on how far back one traces the chain.
Juan Patricio, faced with six armed agents, would not put down his weapon. That is true. But before that, he was chased and struck on the head by an agent. That is also true. The agent was chasing him because he had resisted arrest. True. He was arrested as a result of two agents targeting a homeless shelter, a house of hospitality for migrants, a place that according to Border Patrol policy they were supposed to leave alone. Also true.
But even before that, Juan Patricio crossed into the country without documents. This is where Mr. Brown began his closing argument; this, he seemed to imply, was the beginning of the chain. Juan Patricio entered the country illegally, and after that—the defense implied—he merely got what was coming to him.
In this country we don’t execute people for immigration violations, Enrique had said in his closing statement. In a sense, though, we do. Juan Patricio’s death is the extreme example, and fortunately it is relatively rare. But people certainly are criminalized for immigration violations; they risk death in the deserts of Arizona or at the militarized fences of Texas to come work in our fields and our factories; and every day, everywhere in this country, they die the small gradual deaths of poverty, of invisibility, of racism and ignorance and fear and intimidation. They are called illegals—a name we don’t give even to murderers, a slur that seeks to revoke their very humanity.
After attending most of this trial and writing pages and pages about it, I would like to be able to finish with some sort of conclusion—some insight—with faith, perhaps, that truth will prevail or that justice will be served. But at the end of the week I find myself nearly out of words. I feel like a child who has witnessed an earthquake: it is all too big for me. I know only that words are important; words define the realm of the possible. We cannot think a thing unless we have a word for it. And so I would offer new words to the agents that testified this week: instead of subject and compliance, the words person and compromise, the words restraint and humility. To Cesar and Irene I would offer grief, but in grief memory, and dignity, and solidarity. And I would offer words to the newspapers, to the politicians and policemen and ordinary people of this country: instead of illegal, brother and sister; instead of alien, human.