Marine Is Cleared in Texas Border Death

A grand jury on Thursday declined to indict a Marine for the shooting death of an 18-year-old goatherd along the Rio Grande, the first U.S. citizen to be killed on American soil by his own military in the war against drugs.

After hearing from 17 witnesses and reviewing dozens of reports over two days of testimony, the jurors determined that Cpl. Clemente Banuelos was justified in fearing for the three Marines under his command when he fatally shot Esequiel Hernandez Jr. last May during an anti-narcotics mission on the Texas-Mexico border.

Hernandez, who carried an antique .22-caliber rifle while grazing his goats, had inexplicably shot twice in the direction of the Marines and was allegedly preparing to shoot a third time when Banuelos returned fire with his M-16. Although the jurors found no evidence that Hernandez knew he was shooting at the heavily camouflaged troops, they also agreed that Banuelos had a legitimate concern for his colleagues’ lives.

“They ultimately concluded that Clemente Banuelos was acting reasonably in defense of a third person when he fired the fatal shot,” said Dist. Atty. Albert Valadez, who had spent the last three months gathering evidence of what he considered a crime.

The decision not to indict the Camp Pendleton-based Marine was immediately hailed by his attorney as proof of a just system and denounced by residents of Hernandez’s small border community as a cover-up.

“Although this was a terrible tragedy, there was no crime,” said Jack Zimmermann, Banuelos’ lawyer and himself a former Marine. After speaking by phone to his client, Zimmermann said Banuelos sounded relieved but surprised, given the political demands to hold someone accountable for Hernandez’s death.

“You’ve got to imagine the pressure and frustration on a 22-year-old man who does exactly what he was trained to do . . . then gets accused of murder,” Zimmermann said.

Hernandez’s family and friends, who drove 75 miles here to the Presidio County seat from their tiny farming village of Redford, complained bitterly about many aspects of the investigation, which they considered incomplete. They also questioned the composition of the grand jury, which included a former Border Patrol agent and the current assistant chief of the Border Patrol’s Marfa station--which served as the command center for the Marines’ mission.

“There are grave constitutional issues here,” said the Rev. Mel LaFollette, a retired Episcopal priest from Redford who is leading the community’s protest. He said he would ask the district attorney to convene another grand jury and vowed to challenge the Marines’ account of the incident through a class-action lawsuit on behalf of Redford’s 100 residents.

“This is not the end,” he said. “This is the beginning.”

The one thing that both sides agreed upon Thursday was that a more profound debate--one that examines the proper role of the armed forces in domestic policy--has yet to be settled.

*

A century-old federal law, the Posse Comitatus Act, prohibits military personnel from performing police functions. But those restrictions were relaxed in the 1980s, allowing troops to assist law enforcement officers in the fight against drugs. Under the government’s rules of engagement, while those troops can conduct surveillance and provide intelligence, they can only act against a suspect if they fear their lives are in danger.

“That’s a policy decision not up to a corporal to make,” Zimmerman said.

Maria Jimenez, a representative of the American Friends Service Committee in Houston, agreed: “For us, he would simply be a scapegoat in a policy he had no hand in determining.”

In the wake of the shooting, the Pentagon last month suspended all its anti-drug operations along the U.S.-Mexico border. Joint Task Force 6, as the military’s El Paso-based narcotics squad is called, had performed more than 3,300 domestic missions since 1989, with an estimated 200 troops stationed somewhere on the border at any given time.

The incident that brought that to an end occurred late in the afternoon of May 20, just days after Hernandez’s 18th birthday. A quiet, respectful youth with no history of trouble, he had come home from Presidio High School, eaten dinner and studied his driver’s manual before heading out to graze his family’s 45 goats.

*

As was his custom, Hernandez carried a .22-caliber rifle on his shoulder, a World War I-period heirloom once owned by his grandfather. Friends and family say that he often took target practice or hunted jack rabbits in the desert scrub. If he did shoot in the direction of the Marines, they can only surmise that he mistook them for animals, or was frightened by their camouflaged forms.

But the troops insist that Hernandez knew he was firing at human beings, even if he didn’t know exactly who they were. For their part, the Marines had no idea who Hernandez was, other than that they perceived him as armed and dangerous, despite his herd of goats.

After each of Hernandez’s two shots, the Marines radioed back to their command post at the Border Patrol station in Marfa, according to Jerald Crow, attorney for another of the Marines, Lance Cpl. James M. Blood. “They got permission to load their weapons and defend themselves,” he said, adding that the whole scenario was on tape and available for the grand jury to review. “You can hear their voices. You can tell this is real.”

Once the shots were fired, the Marines say they hit the ground but kept Hernandez in view. They followed him for several hundred feet--a fact that critics say undermines any claim for self-defense, but which the Marines say was demanded by their training. “They wanted to keep him in sight--that was their mission,” Crow said.

Their mission, however, offered the Marines no method for peacefully resolving the situation. They had no procedure for making contact with a civilian or obligation to identify themselves. Under the joint task force’s rules, they were to wait for law enforcement officers to intervene--in this case the Border Patrol--but no agents were on the scene.

While the Marines waited, Hernandez allegedly raised his rifle a third time, taking aim at Blood. Fearing for his colleague, Banuelos fired once.

“If there was any way I could possibly apologize for the incident that happened that day, I would,” Blood told reporters after testifying before the grand jury. “Anytime somebody dies, it’s regrettable, especially another American.”