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has probably read about the case in Texas where Border Patrol Agents Ignacio Ramos and Jose Compean were prosecuted for doing their jobs. The facts in that case are still unclear, but the Assistant U.S. Attorney Debra Kanof wasted no time citing the Border Patrol's pursuit policy when she said, "It is a violation of Border Patrol regulations to go after someone who is fleeing." She also said, "The Border Patrol pursuit policy prohibits the pursuit of someone."

I know a lot of agents scratched their heads when they read these statements, but I think agents will understand how the AUSA came to this conclusion once you read about a case NBPC Local 1613 arbitrated on August 17 and 18, 2006. In this particular case, the Union represented six union members from two different stations (four CAO agents and two ECJ agents). The following provides a brief background of the case and highlights from the settlement discussions and arbitration.

BACKGROUND

On January 9, 2003 at 1600 hours, a citizen called to report a pick-up truck loading up with approximately twenty (20) illegals near the mission in Tecate, CA. One Border Patrol Agent spotted the vehicle and attempted to conduct a vehicle stop, but the vehicle failed to yield. Supervisors authorized agents to set up a spike strip on three occasions at three different locations.

At the first location, the driver accelerated and drove at the agent who was deploying the spike strip. The agent jumped over some brush and landed in a barbed-wire fence, causing the agent to get injured.

The agents were not able to make it to the second location on time. At the third location, the smuggler violently swerved at the agent, causing him to dive into some oak trees where the agent found safety behind one of the trees. Although the agent had to dive for safety, he successfully spiked the vehicle.

Approximately 1/4 mile later, the smuggler drove his vehicle into opposite lanes of traffic and aimed his vehicle at another agent who was trying to perform traffic control near the spike zone.

Following directions from their supervisors, several agents pursued the smuggler on I-8 and ECJ agents followed, as directed, to assist if the smuggler pulled over for a bail out.

The smuggler ultimately lost control of the vehicle and crashed into a guard rail on I-8. Some of the aliens in the back were thrown from the vehicle. The agents provided medical assistance to the aliens and apprehended the smuggler.

To give a better understanding of how the BP vehicles were lined up in this case and to understand the discipline that was proposed for these agents, I will present the following:

Vehicle 1: One Horse Patrol Agent - discipline and dispo unknown (not represented by the Union)

Vehicle 2: Two CAO Agents - Driver received a 5 day suspension and passenger received a 1 day suspension. The Agency cited sections IV (B), IV (C), and IV (D) of the pursuit policy for both the driver and passenger.

Vehicle 3: Two CAO Agents - Same suspensions as vehicle 2 (passenger of this BP sedan was the second agent who the smuggler attempted to run over). In addition to the sections of the policy cited above, the Agency also cited sections X (B) and X (C) of the pursuit policy for both agents.

Vehicle 4: One ECJ Agent - 5 day suspension and dispo unknown (not represented by the Union)

Vehicle 5: One ECJ Agent - 5 day suspension and all of the sections of the pursuit policy listed above.

Vehicle 6: One ECJ Agent - 5 day suspension and all of the sections of the pursuit policy listed above.

Most of these agents were not directly behind one another and they were only following to provide assistance if the smuggler pulled over to bail-out and/or providing a traffic break for any other traffic which may have been traveling behind the pursuit.

SETTLEMENT DISCUSSIONS

On July 29, 2006, the Union attempted to settle this case with San Diego Sector Assistant Chief Patrol Agent Steve Kean. The Union argued the agents did not violate the pursuit policy and should not have been disciplined. We argued that the section of the policy about caravanning has a specific clause which allows for caravanning when there are exigent circumstances. We also argued that most of the agents who were cited with caravanning were not immediately behind the pursuit and in fact were approximately 1/2 mile or more behind. We explained that those agents cited for caravanning were following directives from their supervisors to provide assistance in the event of a bail-out.

In addition, we argued that the helicopter pilots were providing the communication during the pursuit, as directed by the policy. We explained that it would not make sense to have every agent on the radio communicating their location and the speed of the vehicle, as this would have resulted in chaos on the radio.

Finally, we referenced section IV D of the policy, which states, in pertinent parts:

Therefore, it shall be the policy of the Border Patrol that vehicle pursuits begin and continue only when the agent involved believes that the pursuit can be done with reasonable safety. In determining reasonable safety the agent deciding whether to initiate or continue a pursuit should consider the circumstances pertinent to the particular pursuit, including:

3. Nature of violation: commission of a violent crime or serious felony by the occupant(s) as opposed to suspicion of a relatively minor violation, such as entry without inspection may justify continuation of a pursuit. A greater risk may be justified by the more serious nature of the crime, especially when future violence is likely if the fleeing suspect is not apprehended.

We urged Sector to reconsider their decision in this case because the smuggler's several attempts to run over agents changed the pursuit from that of a typical immigration smuggling case to an assault on a federal law enforcement officer case. The agents witnessed this smuggler commit three separate felonies; thereby justifying a greater risk due to the serious nature of the crime.

ACPA Steve Kean said the agents should have terminated the pursuit because of the risk to the general public by pursuing a subject who was driving erratically and at unsafe speeds. The Union countered that ACPA Kean was conveniently citing one theory on police pursuits, but that the Union preferred the other theory which pertains to the smuggler being a greater threat to the public if not apprehended, as demonstrated by his attempts to run over the agents. Nevertheless, ACPA Kean stood his ground and the case proceeded to arbitration.

ARBITRATION

During arbitration, the Union and the agents heard more unbelievable statements from ACPA Kean regarding this case. While testifying on behalf of the Agency, ACPA Kean said the agents should not have pursued the suspect after he attempted to run over the first agent because "the threat had passed" and there was far to great of a risk to the general public. ACPA Kean said the smuggler would have never tried to run over the second and third agent if we would have terminated the pursuit. ACPA Kean continually referred to this as a basic smuggling case which did not justify a pursuit.

The attorney for NBPC Local 1613, Michael Baranic, asked ACPA Kean if the agent's would be allowed to continue the pursuit if the smuggler ran over the first agent. ACPA Kean said "no" because the "threat had passed" and it would be too great of a risk to the general public. Mr. Baranic asked what if the smuggler ran over the second agent also, and ACPA Kean said no for the same reasons. Mr. Baranic asked what if the smuggler ran over the third agent also, and ACPA Kean said no again and cited the same reasons.

Now, I don't know about you, but this is scary stuff. All along, we have all heard supervisors say we would chase someone to the end of the earth if they tried to injure or kill one of our agents. This is pretty basic stuff for law enforcement. If you allow someone to attempt to injure or kill, or injure or kill an agent and not respond, you send a message to the criminals that will have extremely negative consequences in the future. Our abysmal pursuit policy is proof of that since very few smugglers yield when we attempt to stop them because they know we will turn around after a few miles.

Once we have the transcripts from the arbitration hearing, we post actual quotations from the Agency's testimony. Until then, you decide what you want to do with this information.

Please direct any questions pertaining to this case to Chris Bauder at 1-800-620-1613, ext. 80.