ADDITIONAL 10 YEARS NOT JUSTIFIED

The 5th U.S. Circuit of Appeals has just upheld the 11 and 12 year prison sentences of two Border Patrol officers who shot a fleeing unarmed drug smuggler in the ass when he attempeted to escape back into Mexico. This case has been a flashpoint for conservative politicians, talk radio and blogs. It has angered and demoralized the rank and file officers of the Border Patrol.

As a former law enforcement officer, I tend to lean in favor of officers who get themselves involved in questionable situations. In this case it is hard for me to come down on the side of the officers. Long ago, the courts ruled that police officers cannot shoot a fleeing offender unless he constitutes an immediate threat to the pursuing officers or if his escape, based on the nature of his crime, would constitute a serious threat to the public at large.

The Border Patrol officers tried to cover up the incident by removing the spent shell casings from the scence and by failing to report the shooting. They lied to their supervisors about the shooting when it bacame public. And, they claimed that they shot the smuggler only because they saw him carrying something that looked like a weapon.

Here is the problem I have with these officers. They tried to cover up the shooting. Their failure to report the incident indicates to me that they knew they were wrong in shooting the fleeing smuggler. You can bet your life they did not pick up the shell casings in order to save the brass. They compounded their predicament by lying to their supervisors about the circumstances of the incident.

I never fault an officer for shooting an unarmed offender when he is really in fear for his life, even though it turns out that the perpetrator was unarmed. In this case, however, the failure to report the shooting and the subsequent lies lead me to question the claim that the officers thought the fleeing smuggler was armed.

I do have a problem though with the sentencing of the officers. The smuggler was shot in the ass and recovered from his wound. The officers were convicted of felonious assault and violation of civil rights, but a mandatory 10 years was added to their sentences because they were also convicted of "using a firearm during a crime of violence."

When Congress mandated an additional 10 year sentence for using a firearm during a crime of violence, the lawmakers obviously failed to consider that this law would also apply to peace officers in the performance of their duties. A major purpose of that law was to protect peace officers by discouraging the use of firearms by dope dealers and it was not intended to be used against the very people it was designed to protect.

The two officers have been imprisoned for nearly two years. Their law enforcement careers are over. Their "victim" has a long criminal history. Justice was not served with the additional 10 year sentences in this case. That is why I support those who are calling on President Bush to commute their sentences. I also support the efforts of those who want to change the law against using a firearm during a crime of violence by exempting from its provisions peace officers in the performance of their duties.