Investigators Say Mexican Citizen Killed By U.S. Border Agent Had Prior Criminal Record

This aerial photo shows the scene of a shooting by a U.S. Border Patrol agent near San Diego on Tuesday, Feb. 18, 2014. (2014 San Diego Union-Tribune, LLC)

A U.S. Border Patrol agent shot and killed a Mexican citizen suspected of being in the United States illegally after the man threw large rocks at him, investigators concluded on Wednesday.

The man, 41, began throwing fist-sized rocks at the agent from a hillside perch, the San Diego County Sheriff's Department said. The rocks became larger, and one of the bigger pieces hit the agent in the head.

The sheriff's department said the agent fired his gun at least twice Tuesday, fearing he might be killed or incapacitated if he was hit again in the head. The agent tried to revive the rock-throwing attacker, Jesus Flores-Cruz, who had two gunshot wounds and died at the scene.

The Sheriff's Department released the identity of Flores-Cruz on Wednesday night, saying his identity was confirmed by a fingerprint match from a 1996 arrest by the U.S. Drug Enforcement Agency.

The agent, whose name was not disclosed, was treated at a hospital for minor injuries and released.

The episode in a remote, mountainous area about four miles east of San Diego's Otay Mesa border crossing comes amid debate about whether the Border Patrol should respond to rock attacks with lethal force.

Under current policy, agents can use deadly force if they have a reasonable belief that their lives or the lives of others are in danger. The Border Patrol has long maintained rocks can be lethal weapons.

The incident began when two agents on foot separated Tuesday morning to arrest two people who were suspected of crossing the border illegally from Mexico, according to the sheriff's department, which is leading the investigation.

One agent saw Flores-Cruz and ordered him to stop in English and Spanish, then chased him down a ravine and up a hill, where the shooting occurred, the department said. Sheriff's Lt. Glenn Giannantonio said the account is based on the agent's statement and that there were no other surviving eyewitnesses.

The Border Patrol said in a statement Tuesday that the agent feared for his life and that two people in the country illegally were arrested. Kelly Thornton, a spokeswoman for the U.S. attorney's office in San Diego, said prosecutors decided against charging them with a crime.

The Police Executive Research Forum, a nonprofit group that led a government-commissioned review, recommended that the Border Patrol and its parent agency, Customs and BorderProtection, prohibit deadly force against rock-throwers and assailants in vehicles, Border PatrolChief Mike Fisher told The Associated Press last year. Customs and Border Protection rejected the proposed curbs, which Fisher called "very restrictive."

Agents were attacked with rocks 339 times in the 2011 fiscal year, more than any other type of assault, according to the Department of Homeland Security inspector general. They responded with gunfire 33 times and with less-than-lethal force — a category that includes pepper spray and batons — 118 times.

Rock attacks fell to 185 instances in fiscal 2012, becoming the second-most-common type of assault. Agents fired guns 22 times and responded 42 times with less-than-lethal force.

Department of Homeland Security Deputy Secretary Alejandro Mayorkas didn't address specifics when asked about the shooting Wednesday in Mission, Texas, but said the Border Patrol's use-of-force policy would be publicly released.

"We are committed to ensuring the safety of our men and women who put their lives on the line on the border," he said. "At the same time we are committed to ensuring that our use-of-force policies are a reflection of best practices."

A spokesman for the union representing Border Patrol agents said Tuesday that he was confident the investigation into the latest killing would find the agent did nothing wrong.

"The easiest way to stop these incidents from happening is to stop attacking Border Patrol agents," said Shawn Moran of the National Border Patrol Council.

Mitra Ebadolahi, an attorney for the American Civil Liberties Union of San Diego and Imperial counties, said there wasn't enough public information to say if the agent was justified but that the killing raised familiar questions about whether the Border Patrol can respond to rock attacks with nonlethal force.

Based on reporting by The Associated Press.

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