PHOENIX — A federal judge on Monday rebuked the Border Patrol for ignoring its obligation to preserve videos of conditions at its temporary detention facilities in Arizona.
Judge David Bury said the destruction of video recordings made since the agency was sued “was, at best, negligent and was certainly willful.” He said the agency and its parent, the Department of Homeland Security, provide no explanation for failing to meet its obligations once migrant-rights groups filed suit in June alleging cruel and inhuman conditions in holding areas.
Bury said even after he issued a specific order last month to retain videos, the defendants “simply misled the court.”
The judge said he won’t punish the government agencies — at least not yet.
He rejected a plea by attorneys representing migrants that jurors who ultimately will hear the case be told they should presume what was on the now-destroyed tapes would have proven what they are claiming. That includes allegations that migrants were deprived of sleep, exposed to unsanitary conditions and denied adequate food.
Bury said, though, he will reconsider his ruling if the government attempts to take advantage of the lack of the videos to somehow show that challengers cannot prove their case.
The judge ordered the Border Patrol to produce within 15 days all existing videos it has, going back to June 10, when the lawsuit was filed.
The judge made it clear he was not happy that evidence has disappeared.
“Defendants acted unilaterally to modify their responsibilities to preserve evidence required by law, rule and direct order of this court,” Bury wrote. “Even now, the court cannot discern the extent of the destruction.”
He said attorneys for the government promise they will eventually have the ability to retain videos for 15-day cycles.
“The plan is to have further back-up storage in place by then,” Bury said. The judge said he is still waiting for some word that the problem has been solved and there will be no further destruction of videos.
And Bury made it clear he thinks the government has not acted in good faith.
“Defendants have not hesitated since the inception of this case to allow destruction of the videotapes and inform the court after the fact that it was unable to prevent it,” the judge wrote.
