An immigrant shot by a Border Patrol agent is entitled to a $500,000 in damages, a Tucson federal judge said in a finding.
Border Patrol agent Abel Canales’ use of force was not justified when he shot Jesus Castro in his left flank, U.S. District Judge James A. Soto said in a finding issued last week.
Castro, who lives in Nogales, Sonora, sued the government for the 2010 shooting, which greatly impaired his ability to walk because the bullet struck his spine.
Canales, who was convicted in 2012 of accepting a bribe to let a drug load through a Border Patrol checkpoint, initially told investigators he didn’t see Castro pick up a rock. But he later testified at trial that not only did Castro have a rock, but that he also made verbal threats.
The judge cited the agent’s prior conviction and the fact that his story about the incident changed over time among the things that undermined the agent’s credibility.
“Because the court finds that Castro’s testimony was more credible, there was no attempted throwing of a rock,” Soto wrote.
Tucson lawyer Bill Risner, who represents Castro, said he is pleased the judge ruled in his client’s favor, but added he is not satisfied with the amount of the proposed settlement. Risner said he is reviewing the documents before making any decisions about how to proceed, he said.
The U.S. Attorney’s Office for the District of Colorado, which is handling the case, said Tuesday there would be no comment.
On Nov. 16, 2010, Castro was among a group of people who had crossed illegally into Arizona near Walker Canyon, west of Nogales.
Border Patrol agents spotted them. Canales and another agent on horseback, responded.
Canales caught up to the crossers as they were trying to head back to Mexico. The agent said Castro tried to run, ignored orders to return to the group, defied the agent and threatened him with a rock. He also made a throwing motion, which made the agent fear for his life. Canales said “he felt he was in immediate danger of serious injury or death,” and that he had no other choice but to shoot Castro — which is in accordance with Customs and Border Protection’s use-of-force policy.
Castro testified that he obeyed the agent’s commands but Canales started to hit him with the reins of his horse until he couldn’t take it anymore. He started to run back to Mexico as the agent continued to strike him.
Eventually Canales caught up to him, Castro said in court documents, and he crouched down to avoid being hit with the reins when he felt that he was shot.
Even if Castro had picked up a rock and made a motion as if he were going to throw it at him, Soto said, Canales’ use of force is not justified under Arizona law: “a rock is not as deadly an object as a gun and requires greater degree of certainty that the object will be used than the threat or perceived threat of a gun.”
The government did not dispute that Canales shot Castro but argued that the shooting was a justified use of force and therefore Castro is not entitled to compensation.
Soto determined Castro had been 10 percent responsible for his injuries and deducted about $55,000 from the original amount he deemed would be fair compensation.
The $497,943 amount calculated by Soto includes $30,000 for back surgery and $205,200 for a lifetime of pain medication. The rest is for pain and suffering and other economic damages, including loss of income.
