Border Patrol Agent Acquitted of Excessive Force Criminal Charges

STUART D. ADAMS, ESQ.
Partner
ADAMS, FERRONE & FERRONE

The U.S. Border Patrol apprehends literally hundreds, if not thousands, of people entering the U.S. illegally on a daily basis. On July 26, 2011, BPA Luis Fonseca was on duty in the San Ysidro Border Crossing station, working as the Officer In Charge (OIC) inside the station. His duties included the oversight of the booking of apprehended illegal aliens.

At approximately 19:30 hours, three individuals were brought into the station for booking after being apprehended by Border Patrol agents for entering the U.S. illegally. One of them was Alberto Ceja. Ceja had attempted to flee from the officers during the apprehension and fallen down an embankment.

The whole processing in the station was captured by the video surveillance system within the station. Immediately upon entering the booking area, the three detained individuals were told to face the wall and put their hands on the wall, and, as is routine, they were told, “No talking.” In response to these commands, they faced and put their hands on the wall, and the processing began. While all of this was captured on video, there is no audio portion to the video.

The video shows them standing this way for just over 51 minutes, and it ends with them still standing facing the wall with their hands on the wall. During this time, their belts are taken for safety, their identification is checked and their belongings are taken, except their IDs and wallets. All the while, they remain facing the wall with their hands on the wall.

During the 51 minutes, Ceja does not do as he is instructed. Instead, he takes his hands off the wall approximately 14 times, and he speaks to the other detainees several times even after he is told — none too gently — by another officer to face the wall and be quiet. He also does a lot of looking around.

After Ceja has received repeated instructions from other officers and failed to comply, Fonseca starts to watch him closely. While Fonseca is watching him, Ceja appears to talk to the detainee next to him yet again. At this point, Fonseca moves toward Ceja.
Fonseca appears to be speaking as he approaches, and testimony confirmed that Fonseca told Ceja at least two times to get on his knees. Ceja once again does not do what he is told.

Fonseca tells Ceja to get on his knees at least twice, and Ceja does not move. As a result, Fonseca gives Ceja a slight tap to the foot with his foot. Ceja goes to his knees and Fonseca leans over him. 

Then, during the encounter, Fonseca can be seen giving two more quick knee strikes in the rib area to Ceja. After those, Fonseca’s hands quickly move in front of him. At this stage, the biggest problem with the video emerges: The camera from which the video is taken is behind Fonseca. Throughout the contact, Fonseca’s hands are not visible on the video. Eleven seconds after Fonseca’s hands are moved to the front (out of sight of the camera), Ceja slumps to the ground and his whole body convulses in full seizure-like movements.

Fonseca can be seen pointing at the wall and issuing instructions. Within seconds of slumping to the ground and convulsing, Ceja gets up on his knees and puts his hands on the wall. At this point, Fonseca moves away from him back into the processing area.

A short time later, Ceja is called over to be processed. He gets up easily, walks over and is processed immediately in front of the camera. During this time, he makes a choking-type gesture to the processing officer, whose only visible reaction is a smile. Shortly after this, the video ends. Ceja was processed and voluntarily returned to Mexico on July 27, 2011.

Four days later, Ceja tried again to cross the border illegally and again was apprehended. This time, however, rather than walk across some deserted section, he drove across the border checkpoint and gave false paperwork to the Border Patrol agent at the checkpoint.

Ceja was taken to be processed again and, through his statements, it was clear that he knew he was in trouble. So what did he do? He said he lied to the Border Patrol agent at the checkpoint because he was choked the last time he came through, four days earlier.
After Ceja stated that he was choked, the Border Patrol commenced an investigation. They obtained the surveillance video, yet they did not obtain the one that showed the contact from the other side of the room, which would have revealed the front of Fonseca during the contact.

The matter was referred to the U.S. Attorney’s Office and was submitted to a grand jury, which handed down a single-count indictment for assault under color of authority with bodily injury (Ceja allegedly had a scrape to his forehead as a result of the contact), in violation of Ceja’s civil rights. Fonseca was arrested and booked.
During the trial, Fonseca was represented by PORAC LDF panel attorney Stuart D. Adams, of Adams, Ferrone & Ferrone. At the trial, the government — represented by two seasoned U.S. Attorneys — introduced the video from the one angle behind Fonseca. They also called a doctor from a hospital in Kentucky, who was purportedly a “strangulation expert,” to testify that Ceja suffered a seizure that, according to the doctor, was consistent with having the flow of blood to the brain occluded for 11 seconds; therefore, Fonseca strangled Ceja.

Several peripheral witnessing agents were called to the stand by the government, as well as an instructor in defensive tactics for the Border Patrol. The instructor testified, on direct examination for the prosecution as an expert witness, that what he viewed on the video was excessive force. Ceja himself was also called as a witness.

On cross-examination of the agents who testified, Adams was able to elicit the fact that detainees routinely fake heart attacks or seizures, so much so that a phrase has been coined by agents. The phrase is “Mexican heart attack,” which is used by agents of all races, including Hispanic agents, to describe this common ploy. From this, he argued that Ceja was faking the seizure.
On cross-examination of the instructor, Adams was able to get the instructor to admit that he lacked sufficient information to conclude that the

force was excessive. He admitted under cross-examination that, because he could not hear what either Fonseca or Ceja was saying, and because he could not see what Fonseca was doing with his hands, he could not state that it was in fact excessive force, a fact that the prosecution was required to prove.

To counter the opinion of the “strangulation expert” from Kentucky, LDF authorized Adams to hire a doctor by the name of Gary Vilke, from the University of California at San Diego (UCSD) — one of the premier medical programs in the United States. Dr. Vilke has an impressive résumé in emergency medicine, which includes being head of the emergency room lab for UCSD, one-time chief of staff at UCSD Medical Center, and head of the medical program for the San Diego Sheriff’s Department.

In his testimony, Dr. Vilke stated that he has seen literally thousands of individuals who lost consciousness for various reasons, many in his presence. Based on this, he pointed to physical actions by Ceja that demonstrated that Ceja was faking the seizure. At one point, Ceja appeared to break his fall, which an unconscious person does not do, according to Dr. Vilke. The doctor also testified that any opinion that this was a seizure is “ridiculous.”

In the cross-examination of Ceja, it was revealed that he has been caught by the Border Patrol at least five times, trying to illegally enter the country. It was shown that he is no stranger to the processing system. It was also shown that Ceja had lied to law enforcement in the past and had been convicted of providing false information to a peace officer, along with other minor crimes.

It was also revealed on cross-examination that Ceja had been granted legal status to live in the U.S. during the pendency of the criminal case against Fonseca, in exchange for his testimony. Moreover, none of his relatives who were also here illegally and known to be doing so by the government were deported.

As to Ceja’s injury (a fact that, if proven, carried with it a 10-year sentencing enhancement), Adams showed on cross-examination that in the video, Ceja can be seen wiping his forehead several times, as if wiping an injury, before the contact with Fonseca. As a result, Ceja admitted that he could have injured himself when he fell down the embankment when he tried to escape capture.
In the end, after over two weeks of trial, the jury needed less than six hours to render a verdict of not guilty. With PORAC LDF coverage, Fonseca is currently pursuing his reinstatement with the Border Patrol, a job he loves.

About the Author

For over a decade, Adams, Ferrone & Ferrone has been representing public safety organizations in the areas of labor negotiations, contract maintenance, grievances, internal affairs investigations, criminal defense, disciplinary hearings, litigation and workers’ compensation.