a bad call.

I know that I’m not going to make a whole lot of friends in gun blogger circles with this post, but my sense of right and wrong compels me to make it anyway.

I’ve read two posts about the Compean/Ramos commutations, penned by two people I like and respect, and I profoundly disagree with the notion that the two former Border Patrol agents should have gotten a pardon–hell, shouldn’t have been charged!–for shooting a fleeing Mexican drug smuggler in the ass.

Here’s why I disagree:

Compean and Ramos were guilty of two major offenses: they shot a person without that person being a direct threat to them or anyone else, and they tried to cover up their actions by removing shell casings and lying about the incident in question, in writing.

Now, even if you think that drug smugglers should be executed on the spot–and Mexican drug smugglers twice, for good measure–the laws of this country still apply to all persons under its jurisdiction.  There is no exemption for perjury and ADW for federal agents that shoot Really Bad People.  If you argue that there should be, you open up a gigantic can of worms, because not only do you support a selective application of the law (the hallmark of an unjust legal system), but you also set yourself up for the same treatment when your particular demographic is declared Really Bad People by popular sentiment. 

If Compean and Ramos should be let off the hook, then what did Lon Horiuchi do wrong?  (Remember that 80% of the population didn’t see anything wrong with an FBI sniper shooting one of them thar compound-dwelling white supremacists in the face, that he fired the shot in question not at Vicki Weaver intentionally, but at Kevin Harris who was armed at the time, and that those who consider Lon Horiuchi a cold-blooded murderer of an unarmed mother are in the distinct minority in this country.)

I guess it boils down to this: do we want the laws of our country applied evenly, or do we make exceptions based on popular opinion?  How many regular Joes are in prison because some prosecutor stretched the definition of “using a firearm in the commission of a crime” and got away with it? 

Folks, if you don’t want mandatory sentences for firearms-related crimes, then don’t support them, and tell your Congresscritters to strike those laws.  You can’t selectively support them when some crackhead gets jacked and tossed in the pen for ten years because he held up a Seven-Eleven with a .22, and then cry foul when the same laws trip up someone you like doing something you support.  Forget about the drug smuggler aspect for just a second, and consider that Compean and Ramos shot an unarmed fleeing man in the back (it may have hit his ass, but using a firearm is always lethal force), and that they good and damn well knew they weren’t in the right because they picked up their fucking shell casings after the fact, and then lied about their actions.  If they thought they were under fire, they should have left the scene alone, reported the event, and stood by their actions.  Federal law mandates ten years for using a firearm in the commission of a violent crime (ADW in this case), and ten years is what they got tacked on to their sentences.  I don’t agree with the law because I don’t agree with mandatory sentences (they take discretion away from a judge or jury, and they’re just as dumb as Zero Tolerance policies), but the law is on the books, and it applies to everyone.

Do we want our laws enforced objectively? Then we need to get our lawmakers to pass laws that can’t be interpreted loosely enough to convict people like Ramos and Compean, and let people like Lon Horiuchi off the hook.  Otherwise, our legal system is not based on laws, but on whims and popular opinion.

31 thoughts on “a bad call.

  1. crankylitprof says:

    They weren’t necessarily let off the hook — herein the difference between a pardon –which they did not receive — and a commutation — which they did:

    A pardon would have expunged the trial and ‘guilty’ verdict, as if it never happened. They would be able to go back to Federal service with no issues.

    A commutation just shortens the prison time, leaving the verdict/judgment intact. They can’t go back to their jobs, and the conviction is still on their records.

  2. Marko says:

    Yeah, I know, but the overwhelming consensus among the gun bloggers I know is that the commutation should have been a pardon because the two didn’t do anything wrong.

    I don’t mind the Prez commuting their sentences, because the prosecutor obviously threw the book at them to make as much stick as possible, but I have a big problem with the notion that they should be above the same law that applies to us peons, just because they shot a Mexican illegal who also smuggled drugs.

  3. unfortunately, too many of our laws are themselves based on whim and popular opinion…including mandatory sentencing.

    this isn’t a “gun blogger” issue, but rather one of what is just or unjust…here’s to george the younger for stepping in, and for choosing commutation over pardon considering the circum
    stances.

    yes, one can argue that the average joe who f’d up might expect the same treatment and that would be correct… but just because that is not possible doesn’t mean this wasn’t the right thing to do.

    it does however highlight the absurdity of removing discretion from the hands of the judges whose job it is to see after the best interests of both society and those joes, and the need to end mandatory sentencing and zero tolerance laws.

    jtc

  4. williamthecoroner says:

    You’re correct, Marko.

    Boiled down to basics, they shot a fleeing, unarmed man in the back. And then, they covered it up and lied about it.

    I might be willing to cut them some slack on #1, but I’d really rather not, folks with the coercive power of the state should be more cautious than that, but #2 should hang them high. The cover-up and lies are worse than the poor judgment of act #1.

  5. dot says:

    “…the overwhelming consensus among the gun bloggers I know…”

    THIS is hardly a scholarly reference for developing a basis for intelligent discourse on such a complex social, political, and legal action. Unfortunately, all too often the literary equivalent of a fast-draw is rarely on target respective of ground truth.

    I have to agree with CLP’s last two statements, their punishment stands, just the remaining sentence commuted. Hell, perpetrators of much more heinous crimes get to make parole and essentially “get out” early. Doesn’t change their conviction one iota.

  6. Marko says:

    And like I said, I have no issue with the commutation, just the notion that they should have received a pardon….or that they have done nothing to warrant a jail term.

  7. and thus not a “bad call” on the part of the prez at all. jtc

  8. Ish says:

    Thank you, Marko. I’ve been thinking the same thing since this story broke, and never had the guts to say it in person.

    This might have simply been a “bad shoot,” but their actions after the fact made it far, far more sinister.

  9. Thane says:

    One thing – the idea that the smuggler was an “unarmed man” is in considerable doubt. According to the agents, the smuggler ran a few yards into Mexico, stopped, and half-turned back towards them, extending in his right hand what they believed was a pistol. It was at this point that they opened fire.

    Yes, no pistol was ever found. BUT, two things need to be considered:
    First, the smuggler was in a foreign country. It would have been against both our laws and Mexico’s laws for Agents Ramos and Compean to have entered Mexico to retrieve the alleged pistol (they were both armed, which is illegal in Mexico, and it was at a point other than a designated Port of Entry, which would make the crossing itself illegal). Thus, the smuggler had ample time to dispose of/conceal any pistol he allegedly had.
    Second, the very nature of the smuggler’s injury lends credence to the agents’ statements; he was shot in the right buttock, towards the hip, with the bullet exiting about the middle of his buttocks. This bullet path lines him up exactly with a man who has stopped and turned half-way around. Try it in front of a mirror; start with your back to the mirror, then turn your shoulders and waist so you can see backwards into your reflection, and extend your right arm. Then, imagine someone in front of you is shooting, and that they hit you in the hip/buttocks area. Look at where the bullet’s likely path is.

    Yes, they screwed up big-time in failing to follow policy and regulations in reporting the shooting. But I do not believe that they did anything wrong in actually firing at the smuggler, nor do I believe the ridiculous claim that he was unarmed.

    In no way do I condone, support, or absolve the agents’ failure to follow policy. They SHOULD have been fired for failure to follow policy. They should NOT have been convicted of felonies, nor put in jail. The American taxpayers should NOT have had to foot the smuggler’s medical bills. The smuggler should NOT have been given immunity to prosecution, immunity that he used to smuggle at -least- two more loads of dope into the United States (two loads that we know about).

    Marko, while I understand where you’re coming from, you do not have the whole picture here, nor does it appear you attempted to discover that picture. I’m guessing that you got your information from the press releases printed in the mass media, hardly a reliable source. I suggest that you better inform yourself about issues such as these, before you arbitrarily condemn men with insufficient information.

  10. ZerCool says:

    Marko – thanks for putting this out there. I wasn’t actually aware of the incident prior to hearing about the commutation today, and everything I’d found with some fast digging pointed to questionable circumstances at best.

  11. Eric says:

    Until I listened to Neal Boortz today, I did not realize that the two agents had conspired to cover up the shooting. I thought it was simply a case of shooting at a person who was not a threat and them lying in their reports.

    I disagree with the commutation of their sentences – if you or I had done what these agents did, we’d be in the deepest hole the Feds could find. Just because these two once carried badges doesn’t give them any special consideration. If anything, they should be held to a higher standard.

  12. MarkHB says:

    The cover-up bit makes it far worse than a bad shoot. I suppose the burning question is: Why were their sentences commuted? These things send a message.

    I wonder if people’s reactions would be different if McCain and Palin were about to take office, instead of Obama and Biden?

  13. tanner says:

    Marko,

    I agree with you. I am a police officer in the suburbs of Detroit. I read a lot of gun blogs, and I usually make comments defending cops when the gunbloggers take issue with their actions. I too was struck with the apparent hypocracy in this case.

    As a LEO, our word is everything. Mistakes made in the heat of armed combat are forgivable, a lack of integrity isn’t. I don’t expect any officer to be perfect, but I certainly expect them to tell the truth, 100% of the time.

  14. Roger Yarn says:

    Unfortunately, our border is a war zone. The drug smuggler, an enemy combatant. The agents should not have felt the need to cover up, or even apologize, for their actions. I realize that may not be a popular opinion….it is my opinion just the same. The sooner we realize that, what is happening on our border is just that, a war. The better off we will be. If this had happened on the streets of an American city, to a United States citizen, I would say let them rot in prison.

  15. Tam says:

    Tampering w/evidence: “How to make yourself look guilty in one easy step!”

    Mark,

    I wonder if people’s reactions would be different if McCain and Palin were about to take office, instead of Obama and Biden?

    I don’t see the connection. Help me out, here.

  16. Marko says:

    Eric,

    I agree with you and retract my previous statement about the commutations–they *were* a bad call. The law calls for a mandatory ten-year sentence, and they should have served all of it. Don’t like mandatory sentences? Don’t pass the laws that require them.

    Roger,

    then let’s just declare everyone dealing or selling drugs an “enemy combatant”, and everyone who’s illegally in the country as well, just to make the jobs of the police easier and circumvent those inconvenient laws. And then, because we set the precedent, the incoming administration can tag “assault rifle owners” or “high capacity handgun owners” with the same label, and you won’t be able to open your mouth in protest.

  17. Jay G. says:

    Marko,

    And like I said, I have no issue with the commutation, just the notion that they should have received a pardon….or that they have done nothing to warrant a jail term.

    That was exactly my point. Bush got this one exactly right.

    You’ll notice that nowhere did I say they should have gotten a pardon. Nowhere.

    They were prosecuted overzealously because of the nature of the US/Mexican border politics.

    Whether or not it was a “good” shoot or a “bad” shoot should have determined whether they were held blameless or fired (and *maybe* prosecuted). The cover-up turned it into a definitive criminal case, and they certainly deserved jail time.

    But not 12 years’ worth. Most gang-bangers are out in less than 12 years for cold-blooded murder.

    That’s all.

  18. William the Coroner says:

    “Most gang-bangers are out in less than 12 years for cold-blooded murder.” I would argue that being agents of the state, with all the coercive power that implies, those agents should have been held to a higher standard than the average gang-banger.

  19. MarkHB says:

    Tam:
    On reflection, I think that was jetlag talking. I don’t seem to find the memetic link my own self.

    Jay:
    I agree with you in principle the cold-blooded-murdering-gangbangers should serve more time than cops who cover up their own screwups (vis-a-vis the c-b-m-g getting all executed and such).

    But what if the shot had killed the guy? Easily could have. Would that alter your perceptions?

    Again, the main reason for any argument here I think comes down to the Mandatory Sentencing which I agree is a bad way of doing business. It over-punishes in cases like this, where the wound was not fatal. It underpunishes where the wound is fatal. And it opens up cans of worms like this by overshadowing the unarguably criminal aspect of the case, attempting to cover up a bad shoot.

  20. dpatten says:

    I personally would have liked Lon Horiuchi to have served ANY time for what he did. Especially in a Federal pound-me-in-the-can penitentiary.

    Comparing Horiuchi to Ramos and Compean is a poor attempt at a dog whistle. The two cases are totally dissimilar.

    Vicki Weaver was an unarmed woman carrying a baby, not a fleeing drug dealer.

    Horiuchi shot Weaver in calculated cold blood. Ramos and Compean shot the dealer while in hot pursuit.

    This was a complex case and complex cases combined with simplistic approaches to justice like mandatory sentences usually end up badly.

    Did the agents commit a crime, by shooting the guy? Maybe. Maybe not.

    Did the guy have a gun? Maybe. Maybe not.

    The fact that the guy was shot in the buttock isn’t proof that he wasn’t posing a threat to the officers.

    The only crime that I see that was provable beyond a reasonable doubt is the tampering with evidence.

    Is tampering with evidence worth 10 years prison sentence?

    It depends on the circumstances. In this case I think not.

    I would say that mandatory sentences are always a bad idea, except for the fact that there needs to be some legislative oversight of judges. Otherwise, you end up with judges doing things like sentencing child molestors to probation and community service.

  21. You’re right, your critics are wrong; let’s settle it that way.

    I don’t even disagree with the critics of mandatory sentences. But if those are to be overturned in specific cases, how about let’s do it for, oh, the girlfriend of the crack dealer who was unfortunate enough not to have anybody to flip on, rather than two corrupt cops who covered up a shooting?

  22. And Tanner: thank you for getting it, and for saying so.

    Yup; cops can make mistakes (or appear to make mistakes; what looks like a “bad shoot” may only look that way in retrospect).

    But a cover up is not an ordinary mistake.

  23. Jeff says:

    Here Here, Marko. If they had stood by their actions and articulated their reasoning, I might support them. Once they tried to cover them up, throw the book at them. I agree with William that for abusing their power as officers of the law, they should be held to a higher standard.

  24. Crucis says:

    Marcos, I don’t disagree with your position. My problem with the entire issue isn’t that the two committed felonies. They did and were rightly prosecuted for the crimes.

    My objections are:
    1) the Federal prosecution do NOT charge illegals for the felonies they commit (entering the country and then staying here). The inequality on how the Federal prosecutors apply the laws.
    2) the sentences that were levied were way out of proportion to the crimes committed.

    Those two injustices warrant a commutation. But—not a pardon.

  25. Marko says:

    dpatten,

    Horiuchi did not fire directly and intentionally at Vicki Weaver. He fired at Kevin Harris, who was armed and running back to the house. The round injured Harris and went through the door, where it hit Vicki Weaver in the face. How is that “in calculated, cold blood”?

    If you can give Ramos and Compean the benefit of the doubt for employing lethal force against an unarmed man as he’s running away, and you call Horiuchi a cold-blooded killer for shooting at an armed man and killing someone else by accident, I submit that you have a bit of a bias.

    Mandatory sentencing laws are only in place because the “get tough on crime” crowd wanted those laws in place. They’re not a curse from the wool-headed, soft-on-crime liberals, they’re a present from the “lock ’em up and throw away the key” conservatives, plain and simple. I have little sympathy for the cries of outrage from the very same people when the mandatory sentences they wanted “to stop judges letting off criminals” end up biting the King’s Men in the ass.

    They shot at the guy, they didn’t report the shooting, they tampered with the evidence, they lied about what they did, and they knew they had screwed the pooch because they tried to cover it up. End of fucking story. Do the crime, do the time, and all that.

  26. Tam says:

    The round injured Harris and went through the door, where it hit Vicki Weaver in the face.

    Actually, the round traversed the door, then Vicki’s head, and then it (or fragments of it) hit Harris in the arm.

    Criminal negligence, manslaughter, and enough of a Rule Four violation to convince me his ass should never hold a water pistol again.

    If you or I had done it, we’d certainly be behind bars, but we’re not Only Ones.

  27. wolfwalker says:

    Regarding Ramos and Campean: I don’t pretend to know what actually happened. I only know that I’ve heard two drastically different versions of the incident. One version is more or less as you’ve presented it, Marko: they shot an unarmed man, they tried to cover it up, and they were sentenced appropriately. The other declares them innocent, apparently based on three points:

    1) they didn’t know he was unarmed, thus the charge of “excessive force” doesn’t apply

    2) the rules at the time required them to report the shooting to their superior verbally, not in writing, and that’s exactly what they did. In fact they did everything according to the book, thus the charge of “cover-up” doesn’t apply.

    3) the prosecutor based his case heavily on testimony from the victim: a known drug dealer and drug smuggler who testified only after he was promised immunity and a free pass on a pending smuggling charge. But the jury wasn’t allowed to know this.

    Obviously, if one believes the second version of events, they should have been pardoned free and clear. (I repeat: I don’t know the actual facts and I don’t know which version to believe.)

  28. Mark@Sea says:

    Noting, over the years, the number of prosecutions for what was clearly self defense, by prosecutors who went grand-jury hopping until they could get one to indict, I’d have to conclude that much of our legal system is already based on whim, or more precisely the political ambitions of the prosecution.
    Thank whatever God you follow, or the Great Pumpkin, for that matter, for “Stand Your Ground” and Castle Doctrine laws that give us some protection.

  29. Jerry says:

    Perhaps it is a nod to the anti illegal immigration crowd?

  30. Matt G says:

    And of course you’re right.
    I like JPG’s take on this commutation; that these guys made a bad call that could have been fixed, but that all went to hell in a handbasket when they LIED about, and then stood by their lie when offered a plea.

    Hell, the federal prosecutor had no choice but to throw the book at them, when the turned down an easy plea, when he had them dead to rights.

    These guys weren’t cops. They stopped being cops when they turned their back on the laws of the land that they were supposed to be upholding. They were, at that point, just guys with badges. Now they’re convicted felons (and always will be, unless Barry O’ decides to pardon them, too.), and will never work as law enforcement again. They put in two years in prison.

    It is a constitutional power of the POTUS to issue pardons and commutations. I find that this commutation showed some justice. as a citizen and as a cop, I would not have felt that way if they had been pardoned.

  31. Matt G says:

    “2) the rules at the time required them to report the shooting to their superior verbally, not in writing, and that’s exactly what they did. In fact they did everything according to the book, thus the charge of “cover-up” doesn’t apply.”

    Wolfwalker, I’d be very leery of what you’ve been told. I had been working for a tiny PD for years before the shooting, and even we had a local policy of written statements on use of force. This was a use of deadly force. State law, if nothing else, requires use of force reports be made. Just because they found a line that said “report incidents to supervisors,” and they did so verbally, doesn’t preclude them from following up. How did they know that they had missed?

    Tampering with evidence is a State Jail Felony in Texas. I don’t know what it is under the USC. I doubt that they were reloading the brass.

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