PHOENIX — A lawyer for the government is urging a federal judge not to punish the Border Patrol for recording over videos of conditions at several Arizona detention centers.
In new court filings, Assistant Attorney General Sarah Fabian did not dispute the agency no longer has many of the videos that were recorded since the lawsuit protesting detention center conditions was filed. But she told U.S. District Court Judge David Bury there was no obligation to save them.
Fabian also acknowledged that some videos since Aug. 14 are no longer available despite Bury’s order that day to “not destroy or record over” any surveillance recordings of holding areas.
She said records are “being preserved to the fullest extent possible in light of technical challenges.” Fabian also told the judge there are “Herculean efforts to comply at great expense to the agency, both financially and in man hours.”
And in her court documents, she took specific issue with comments from Karen Tumlin of the National Immigration Law Center to Capitol Media Services last week that the price tag of preserving the evidence “is legally irrelevant.” Fabian told Bury he should consider the cost in determining whether to punish the Border Patrol for what it did not preserve.
The stakes are critical for the government.
In complaining about the destruction of video recordings, attorneys for the immigrant-rights groups said the Border Patrol had a “reckless disregard” for its obligation to preserve evidence of what challengers contend are “inhumane” conditions in the facilities where those picked up by Border Patrol are held for what could be days.
More to the point, they contend that the fact the videos are no longer available means that jurors who will decide the case should be told that they should presume what was on the videos would have proven the claims of those conditions.
The lawsuit, filed in June, claims those who were detained were subject to freezing conditions, lack of medical care, unsanitary conditions and inadequate nutrition.
Tumlin said the filing of the lawsuit should have put the Border Patrol on immediate notice that it should preserve the videos it has. Fabian disagreed.
“Preserving the video surveillance footage that plaintiffs assert should have been preserved would have either (1) created security risks for thousands of Border Patrol agents as well as tens of thousands of aliens detained at Border Patrol stations in the Tucson sector, or (2) been unduly burdensome and expensive because the means of preservation in the manner plaintiffs’ propose were physically and financially nonexistent,” Fabian said in her filings.
Fabian argued the videos are not necessary.
She pointed out to Bury that he has given challengers and their experts the opportunity to visit four of the sites — Casa Grande, Tucson, Nogales and Douglas — to see conditions for themselves.
Fabian said, there is footage of existing conditions at Border Patrol stations and, in some cases, even video from times prior to the complaint being filed in June.
