May 28, 2008
A few days after I was illegally stopped by a Homeland Security Roving Patrol late at night along SR86 in Southern Arizona, the news article appearing below was published in the Arizona Daily Star. The article discusses two Border Patrol agents who are suing the Department of Homeland Security for retaliating against them. The agents publicly revealed information regarding an often practiced but illegal enforcement technique known as ‘shotgunning’ by other DHS agents.
According to the whistleblowers, ‘shotgunning’ occurs when agents on Roving Patrol stop vehicles absent reasonable suspicion and make up an excuse for the stop after the fact. This practice is illegal because agents are required to have reasonable suspicion BEFORE initiating a stop, not after.
Of course many of us who live within one hundred miles of the Southern border have been aware of this common intimidation tactic utilized by Homeland Security agents for years.
I was the target of just such an illegal stop on May 14th and blogged about it here. Additionally, a video of the incident is available from YouTube.
According to the news article, the Border Patrol agents revealed the illegal practice after one of the agent’s wives was targeted for just such a stop and later arrested on drug charges. The agents testified in various legal proceedings regarding the illegal practice resulting in an acquittal for the agent’s wife.
Shortly thereafter, both agents were disciplined for allegedly revealing "sensitive" Border Patrol enforcement practices to the public. Given that the ‘sensitive’ information revealed related to illegal practices, I can see why Homeland Security didn’t want the agent’s talking but to brazenly discipline the agents for daring to testify at legal proceedings regarding the matter goes a long way to showing just how unaccountable & out of control this federal agency is.
The New Mexico chapter of the ACLU agreed to represent the agents in a lawsuit claiming retaliation for breaking the ‘wall of silence’ regarding illegal Border Patrol practices. I note that it’s quite interesting the ACLU picked up the case and NOT the Border Patrol Union which normally represents agents who have been unfairly targeted for retaliation by Homeland Security.
In addition to the text of the news article appearing below, I’ve also included another account of ‘shotgunning’ experienced by a friend of mine who also happens to be a local defense attorney. The incident occurred several years ago.
The text of the news article follows this account:
Date: Tue, 24 Jun 2003
I also commend and support Terry’s action 100%. I have my own Border Patrol harassment story from three weeks ago that I’ve already shared with Terry but will share with everyone else.
—— —– and I have some friends who were living near Three Points for a few months (I think they moved within the last few days), and we would regularly drive there on Monday nights to have dinner and play music, and we would come home to Tucson late at night.
On June 2, we left their house around midnight, and we were driving north on AZ-286 approaching the intersection with AZ-86. About a mile before the intersection, we passed a USBP SUV with the lights and engine off, and it then turned on the engine and lights and pulled onto the road behind us.
It was pretty obvious that I was going to get pulled over. I could have pulled into the Chevron & convenience store parking lot at the intersection and let him come up to the vehicle at that time. But I considered that this behavior might give the BP an unreasonable fear that I might be preparing for an armed standoff, so I drove to the stop sign, stopped, looked both ways, and made my right turn onto AZ-86.
The BP just blew through the stop sign at about 30 mph, fast enough that it was impossible for the driver to keep his vehicle on the right side of the road. By doing this, he was able to catch up to me shortly after turning onto 86. He then waited another mile before flashing the lights. I pulled safely off to the side of the road, shut off the engine, and kept my hands on the steering wheel.
The two BP agents approached the vehicle, one on the driver’s side and one on the passenger’s side. Both —– and I rolled down the windows. The exchange went something like this:
DE: "Good evening."
BP: "Good evening. Where are you coming from?"
DE: "Our friends’ house."
BP: "What are you doing out so late?"
DE: "Playing music and visiting friends." (the amp and one guitar
were in the uncovered bed of the truck)
BP: "It’s kinda late dontcha think?"
BP: "Where ya headed?"
DE: "Home. Tucson."
BP: "Mind if I search your vehicle?"
DE: "I don’t consent to a search of my vehicle. I’m a criminal
defense attorney (chuckle)."
BP: (chuckles too) "Where are you coming from?"
DE: "Our friends’ house."
BP: "What are their names?"
KM: starts to answer
DE: cuts off ——, "our _friends_."
BP: "mind if I bring the K9 to sniff around your vehicle."
DE: "Yes I mind because I’d like to get home. However, you have the
authority to bring the dog around without my consent, so if you want
to do that you’re within your authority."
BP: "Yes I am." bring the dog around, dog finds nothing
BP: "OK you’re free to go."
Reasons why I type this exchange out:
1) there is a fine line between standing up for your rights and
ensuring that you’ll spend the night in a federal holding cell. I
could have simply refused to answer ANY of his questions, but it was easier on everyone if I answered a couple just to expedite the matter.
2) know the extent of the authority of law enforcement officers at a roadside stop. They may not search your vehicle without your consent, but bringing the K9 out to sniff outside is not considered a "search" for Fourth Amendment purposes.
3) not everyone who gets pulled over is an attorney. But feel free to bluff by saying "I’ve done work with attorneys" as you are refusing consent to a search. Gives the officers a sense that you are refusing on the basis of defending your rights, as opposed to having something to hide.
4) DON’T BE NERVOUS. They’ll pick up on it and try to rattle you.
5) USE GOOD JUDGMENT.
I think everyone in Tucson should expect to go through a similar
encounter in the near future if they leave the city limits for points south/west/east. I’ve seen the Border Patrol buildup that Terry is describing with my own eyes, and it’s pretty scary.
Now, onto the original news article:
2 whistle-blowing agents sue Patrol, alleging retaliation
By Howard Fischer
Capitol Media Services
Tucson, Arizona | Published: 05.22.2008
Two Border Patrol agents assigned to Southern Arizona are suing the agency, accusing the Tucson Sector chief of illegally retaliating against them for publicly exposing illegal practices.
The lawsuit, filed Wednesday in U.S. District Court, says Robert Gilbert suspended the law-enforcement powers of agents Juan Curbelo and William Leafstone Jr. because they publicly disclosed a Border Patrol practice of "shotgunning," which, according to the lawsuit, involves stopping vehicles without reasonable suspicion a crime has been committed.
Since August 2007, the two have been assigned to build fences along the border. And Curbelo also drew a two-month maintenance assignment, with his duties including painting guardrails, mowing grass and unclogging sewage lines.
Dove Haber, a Border Patrol agent who handles media inquiries, said Wednesday that her agency does not comment on pending litigation.
According to the lawsuit, the two agents’ problems began in 2006, when Curbelo’s ex-wife, Concepcion, and children were stopped by a Border Patrol agent near Rodeo, N.M. She was charged with possessing and transporting marijuana.
The suit says Curbelo and Leafstone, reviewing the arrest report, found "numerous inconsistencies that were an effort to cover up an obvious lack of reasonable suspicion" for having stopped the vehicle in the first place.
Curbelo eventually contacted the Border Patrol’s inspector general to complain, not only about the "shotgunning" but also other concerns about how his ex-wife’s arrest was handled, concerns Leafstone also shared with that office.
Leafstone also agreed to testify at a hearing on behalf of Curbelo’s ex-wife. The judge concluded the traffic stop was illegal and the charges against her eventually were dismissed. Within days of that hearing, the lawsuit says, Gilbert directed both to turn in their badges and firearms because the agents had "divulged sensitive Border Patrol information."
The suit, filed on their behalf by the American Civil Liberties Union, contends the officers were punished for exercising their First Amendment free-speech rights, in particular the right of Leaf-stone to testify in a legal proceeding. It seeks a court order returning the men to their full job positions and responsibilities.
"It’s our contention that the Border Patrol is punishing these officers for breaking the agency’s ‘code of silence’ and shedding light on a practice that brazenly violates the privacy rights of motorists," Peter Simonson, executive director of the ACLU of New Mexico, said in a prepared statement.
"Rather than being suspended from their jobs, Agents Curbelo and Leafstone should be congratulated for taking a principled stand, knowing full well that it might not sit well with some of their fellow officers," he said.
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