Blogging mostly about mundane stuff like, immigration, Workers' Compensation and other immigrant related activities.

Monday, August 11, 2008

Ballad of Esequiel Hernandez

On May 20, 1997, 18-year old Esequiel Hernández Jr., was shot and killed in Redford, Texas by a Marine squad which had been assigned to perform anti-narcotics patrols on the US-Mexico border.

Few of the facts surrounding the death of Hernández' are in dispute. US Military officials claimed that Corporal Clemente Bañuelos, the squad leader fired a single shot from his M-16 rifle only after Hernandez had raised his rifle and prepared to fire the Marines for a third time. Marine Cpl. Bañuelos specifically claimed that Hernandez had pointed his rifle at Lance Corporal James Blood.

If in fact Hernandez did fire upon the Marines, it is difficult to determine if he knew what he was shooting at, because the four Marines were conducting survelliance utilizing full camouflage gear and thereby blelnding completely with the brush, scrub and thicket of the surrounding area.

Hernandez reportedly fired twice from a .22 caliber rifle and the Marine squad then trailed him for 20 minutes. Hernandez' family claimed the .22 caliber rifle was regularly used to fend off wild
dogs, coyotes and other predators that would pose a danger to the family's goats.

The Scene

The Marine squad who were assigned to perform secret survelliance in Redford were based out of Camp Pendelton, California. After the shooting incident it was revealed that the Marines assigned to Redford had been briefed by the US Military and were told that Redford was, "an unfriendly area where 70 to 75% of the local population was involved in drug trafficking" and "of the 100 people, 70-75 of them were drug traffickers according to the Border Patrol and Joint Task Force Six".

Esequiel Hernández was shot while herding goats in the remote and sparsely populated region of Redford, Texas. Redford, according to the 2000 US census data is a town of some 132 people. The town has one of the lowest population densities with an average 2.9 people per square miles.

By law, military personnel involved in domestic law enforcement are not allowed to search, seize, arrest or confront a suspect. Military involvement is strictly limited to activities such as surveillance and intelligence (10 USCA Sec. 375). Soldiers are allowed to return fire in self-defense.

The central theme of this documentary film is to question the misguided policies which allowed for the use of US Military forces on our Border. It raises serious questions on whether US Military forces, forces which are highly trained to use deadly force should be used in anti-narcotic efforts on domestic soil. The Marines who patroled Redford were working under specific Rules of Engagement (ROE) that required them not to engage suspects.

The fact that Marines trailed Hernandez from "bush to bush" for 20 minutes raised questions on whether the Marines took appropriate action. Captain Barry Caver, spokesman for the Texas Rangers said the Marines may have violated military policy when they followed Hernandez. "My understanding is that this is totally against the rules of engagement," said Caver, adding, "I'm
not sure what their intent was" (Thaddeus Harrick, "More questions in border shooting," Houston Chronicle, June 21, 1997

At a news conference two days after the incident, Marine Corps Col. Thomas Kelly, deputy commander of Joint Task Force-6, said only that the Marines "took immediate defensive posture" and tried to "maintain visual observation." NDSN July 1997 Story

Hernandez was shot in the upper chest, but did not die instantly, rather he bled to death while awaiting medical assistance to arrive. Reports differ as to whether Esequiel Hernández was actually shot in upper chest as claimed by the Marines. The autopsy report countered the Marines report that he was shot in the upper chest and concluded he was shot in the back as he walked away from the Marines.

A Documentary Film

A documentary film has been released by Heyoka Pictures about the tragedy. The film recently aired on on July 8, 2008 on PBS' P.O.V. The documentary film was directed by Kieran Fitzgerald and was narrated by Tommy Lee Jones. Film Trailer

The documentary explores the two-sided tragedy and the dramatic details of the killing. It sheds light on the use of the US Military to support civilian law enforcement in violation of the Posse Comitatus Act (PCA), which prohibited the use of the military “as a posse comitatus or otherwise to execute the laws” unless expressly authorized by the Constitution or by Congress.

The killing of Hernandez was the first time an American had been killed by US military forces on native soil since the Kent State Shootings in 1970.

After the incident the border patrol activities by the US military were subsequently suspended, but in 2006 the National Guard was ordered by President George W. Bush to assist the Border Patrol to combat illegal immigration. NPR Story

...the Guard will be used in areas where they already have training:
building infrastructure, for example, or conducting helicopter
Striking a balance

The documentary film attempts to strike a delicate balance as it interviews the Hernandez family, the Marines and authorities involved. It also explores the guilt and remorse suffered by the Marines involved, some of it clearly evident 11 years after the shooting incident.

From a viewer standpoint, I initially tried to quickly place blame squarely on the Marines for the tragic killing of Hernandez, but that would have been too easy, instead the film posed uneasy questions about how we allowed politics to lead and set-up the tragic scenario. How our abject acceptance of our government's War on Drugs have fueled a number of unintended and deadly consequences. The Ballad of Esequiel Hernandez requires the viewer to dig deeper, to focus much more attention to the dangers of militarizing our southern border.

The film has rare interviews with the Marines involved in the shooting, as the Marines involved in the shooting were not allowed to speak to the media by their superiors after the shooting incident. The interviews do show that some of the Marines were devastated by the killing, but they insist it was an accident.

"If there was any way to fix it, I would," said former Marine, Lance Corporal Blood.
The films makes use of audio recordings from radio communications between the Marines and their commanders, as well as military investigative video.

Posse Comitatus Act

The use of military forces on the border for anti-narcotics operations is prohibited under the Posse Comitatus Act.

Traditionally, U.S. military forces have been forbidden to take part in domestic law enforcement, the result of a post-Civil War law, the Posse Comitatus Act. But in the 1980s, in response to a growing drug problem on the border, the law was loosened to allow military units to help the U.S. Border Patrol catch drug smugglers. A Department of Defense entity called Joint Task Force Six, based in El Paso, Texas, has since 1989 coordinated 3,300 missions on the border; 746 of them involved
listening or observation posts like the one Banuelos and three other Marines established several days before Hernandez was shot. Time Magazine Article

How domestic use of military forces in support of local law enforcement agencies was begun anew is a product of the Ronald Regan Administration. In the 1980's the Regan Administration was under pressure to do something about the War on Drugs. In the 1984 Presidential re-election campaign the Regan/Bush Administration the War on Drugs featured heavily within their campaign. Once they won re-election the anti-narcotics efforts were lead by then Vice President George Bush and military personnel was again deployed in anti-narcotic efforts throughout the 1980's and into the Bill Clinton Administration.

The Shooting

The Marines maintain that Hernandez spotted them in the brush and fired at them twice. According to initial reports, as Hernandez raised his rifle to shoot a third time, Banuelos shot him once in the chest. The team reportedly did not call out to identify themselves until after the fatal shot had been fired. Hernandez bled to death while waiting for medical assistance to arrive.

Autopsy results concluded that ,since the bullet entered the right side of his chest and traveled to the left side of his body, Hernandez could not have been facing the Marines when he was shot. Hernandez did fire two shots with his .22 rifle before he was killed, but critics claim that he probably never saw the heavily camouflaged Marines. His family maintains that he would never have knowingly shot at any person.Family and neighbors say Hernandez was law-abiding and respectful and would never have knowingly shot at people, much less soldiers. Officials
found no evidence that the teenager was involved in illegal activities, and an autopsy showed that he did not have any drugs or alcohol in his system. Before he was killed, Hernandez was studying for his drivers license, and dreamed of going to college, working as a wildlife ranger, or possibly joining the Marines.

Investigators say they asked the Marines involved in the incident to remain in Texas so
they could reenact the shooting at the site, but they were sent back to Camp Pendleton after four days. Tests on Hernandez's rifle are incomplete, and investigators have not been able to corroborate that the teenager fired two shots in the incident. Neighbors report only hearing one shot (Thaddeus Herrick, "Doubts raised in border case," Houston Chronicle,
June 11, 1997, p. 1A).

The Aftermath

The incident devasted the Hernandez family, shocked the small community of Redford and severely questioned the actions of the four Marines, particularly those of Corporal Clemente Banuelos. It raised public awarness and called into question the effectiveness of the domestic use of US Military personnel on the War-on-Drugs. The incident also brought furhter scrutiny on the militarization of our southern border.

"Personally, I don't think this kid ever saw them, by the indication my Rangers are telling me," said Captain Barry Caver, spokesman for the Texas Rangers, the state law enforcement agency that is investigating the killing.
The Marines were heavily camouflaged, and were trained to conceal themselves so as not to be detected. The shooting appears to have taken place from a distance of 375 to 600 feet (James
Pinkerton, "Ranger says Marines' account doesn't `exactly jibe,'"
Houston Chronicle, May 24, 1997

"No-Bill" for Cp. Banuelos

A total of four grand juries were convened seeking to indict Cpl. Banuelos on murder charges. The Texas District Attorney in Marfa decided not to indict the Mrine on First Degree Murder charges.

That was not the end for Cp. Banuelos legal troubles as authorities sought to prosecute him under Federal Criminal Civil Rights laws. The US Justice Department eventually issued a "No-Bill" for Corporal Banuelos. A "No-Bill" is a grand jury's determination that there is not adequate evidence to indict someone. The U.S. Dept. of Justice issued a Press Release indicating Cpl. Clemente Banuelos would not be indicted on February 27, 1998, a full 284 days after Hernandez was killed.

From the Cpl. Banuelos press release of the U.S. Dept. of Justice:

The Justice Department found insufficient evidence to prosecute Corporal Banuelos
under federal criminal civil rights law. To successfully prosecute Corporal Banuelos
under federal law, prosecutors must prove beyond a reasonable doubt that he willfully
interfered with Hernandez' constitutionally protected rights. To prove willfulness,
prosecutors must show that Corporal Banuelos knew that shooting Mr. Hernandez was a
violation of law, and deliberately did so anyway. The Department concluded that there
was insufficient evidence to rebut Corporal Banuelos' claim that he shot Mr. Hernandez
because he thought that Mr. Hernandez, who was armed, was about to shoot another Marine.


Although both the Military and Civilian authorities determined that none of the Marines involved would face criminal charges in the death of Hernandez, the incident contributed to the military's closer evaluation and assessment on the Rules of Engagement versus a Rules for Use of Force.

From the Marine Corps Gazette

In an influential memorandum drafted in response to a military investigator’s request for an expert legal opinion on the JTF–6 shooting incident, Col W.H. Parks, a retired Marine Corps judge advocate and respected ROE and law of war scholar, succinctly captured the essence and importance of these critical distinctions between ROE and RUF:

In the case of military assistance to domestic law enforcement, the term ‘rules of engagement’ is inappropriate. The outcome of the 20 May incident, while legally correct, may have occurred in part because (a) the Marines were sent on a combat-training mission, (b) received all briefings in combat terms, and (c) trained on rules of engagement rather than domestic law use-of-force standards. This may have established a mindset in [the Marine team] that caused Corporal Banuelos to choose certain courses of action over others that might not have resulted in the death of Mr. Hernandez.

Recommend that ‘rules of engagement’ not be used with regard to military support for domestic law enforcement, or other military aid to civil authorities.

Due to the Hernandez incident on May 31, 2000 the Joint Chiefs of Staff issued: "Rules on the Use of Force by DoD Personnel Providing Support to Law Enforcement Agencies Conducting Counterdrug Operations in the United States"

The rules provide that in any military mission it is imperative that military forces understand, and are trained to understand the difference between the Rules of Engagment commonly used in combat on foreign soil and Rules for the Use of Force used by military personnel supporting domestic law enforcement.

A Quiet Settlement

In the end whether justified or not, a single bullet, fired from Cpl. Banuelos' M-16 killed Esequiel Hernandez. An autopsy contradicted statements that the Marines had acted in self-defense.
The report suggested tht the angle of Hernandez's bullet wound was consistent with walking away from the Marines.

He would have been shooting away," said James Jepson, first assistant district attorney in Fort Stockton.
The Justice Department and Department of Defense, without admitting any wrongdoing,settled with the Hernandez family for $1.9 million. A total of 14 government employees including the four man squad lead by Cpl. Banuelos were deemed not to be at fault for death of Hernandez.

On August 12, 1998, just over a year after Esequiel Hernandez' death Justice Department Spokeswoman Chris Watney said, ''The settlement came under the Federal act that allows
the military to settle claims caused by its activities without admitting fault as long as the injured person was not at fault.''

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