After reviewing all available evidence, Cochise County Attorney Brian McIntyre has determined that a U.S. Border Patrol agent appeared to have been justified in shooting a Mexican national earlier this year in a remote area about 30 miles northeast of the border.
In a notice to the lead investigator dated last Friday but not released to the public until Monday, McIntyre advised Cochise County Sheriff’s Detective J.C. Hoke that the actions of Agent Kendrek B. Staheli on the evening of Feb. 19 leading to the death of Carmelo Cruz Marcos appear to be justified under Arizona law.
An autopsy report showed Cruz, 32, was shot four times after he and Staheli became separated from several other undocumented migrants and another USBP agent in an area of Skeleton Canyon that was some distance from any dirt roads.
According to McIntyre, there are two Arizona Revised Statutes which govern the use of force by a peace officer. The first, ARS 13-409(1), justifies threatening to use or using physical force if “a reasonable person would believe that such force is immediately necessary to effect the arrest or detention or prevent the escape.”
The second, ARS 13-410(C)(1), explains that the use of deadly force is justified only when the peace officer reasonably believes it is necessary “to defend himself or a third person from what the peace officer reasonably believes to be the use or imminent use of deadly physical force.”
The agent’s post-incident statement indicated Cruz picked up a large rock and appeared to be preparing to use the rock as a weapon against Staheli.
“In any prosecution that involves a self-defense claim in Arizona, the State is required to prove beyond a reasonable doubt that the conduct was not justified, rather than it being an affirmative defense with the burden on the Defendant,” McIntyre explained. “There is insufficient evidence contradicting the Agent’s explanation of the events in question to meet this high burden.”
Staheli was one of two USBP horse patrol units assigned the evening of Feb. 19 to a remote, unlit area north of Douglas when the agents encountered a group of suspected undocumented migrants shortly before 11 p.m. Both agents told Hoke that three members of the group were detained before Staheli pursued Cruz who was evading arrest.
The agent also stated he and Cruz struggled, at one point falling to the ground along the treacherous terrain. Staheli told investigators he only fired after Cruz appeared to be ready to strike the agent with the large rock.
There was no physical evidence at the scene to contradict the agent’s statement, McIntyre noted, adding that the evidence actually appears “to support the Agent’s version of events.”
Last month a representative for the Cruz family stated that “witnesses to the shooting” insisted he was not a threat to the agent. And although two of the undocumented migrants claimed they heard Staheli utter what McIntyre described as “a particularly unusual statement” before the shots were fired, none of the other witnesses reported hearing such a statement, according to the letter.
The county attorney does not expound on the nature of the alleged statement, but his letter to Hoke notes “Staheli’s reported emotional state after the shooting strongly cuts against this claim.” And none of the others in the area saw the shooting.
McIntyre found no fault with the decision by investigators to establish a protected perimeter at the crime scene and then wait until early morning to process collect evidence. CCSO had previously announced that the delay was necessary to protect the integrity of the unlit crime scene and ensure the safety of investigators trying to reach the area.
Based on the available evidence, “the shooting was legally justified and there would be no reasonable likelihood of conviction on any criminal charge if pursued,” McIntyre wrote.
In closing, McIntyre thanked Hoke for his “professionalism and service in this matter.” Hoke’s investigative report is expected to be released to the public on Tuesday afternoon, according to CCSO spokeswoman Carol Capas.
The report is expected to provide details as to the distance between Cruz and Staheli at the time of the shooting, their location in respect to the other USBP agent and those detained, and any radio traffic before and after the shooting.
Cruz’s family has retained a private attorney in California in expectation of a wrongful death lawsuit against USBP. The family previous confirmed Cruz, the father of three, entered the United States in violation of immigration laws.