December 8, 2000

Michael Nicley
Deputy Chief
U.S. Border Patrol
425 "I" Street, N.W.
Washington, D.C. 20536

Dear Deputy Chief Nicley:

The main subject of this letter is a supposed rock-throwing incident which resulted in a migrant being shot at the San Diego stretch of the border. The hollow-point bullets used caused severe injury to his internal organs. But before turning to hollow-point bullets, I wanted to emphasize that even by the Border Patrol's more conservative count, migrant deaths from exposure and drowning are soaring.[1] The toll prompted the Catholic Conference of Bishops to express its alarm in both religious and human rights terms.[2] As you know, there was a 60% increase in such deaths during FY 00 in comparison to the previous year. This translates into 138 more deaths, despite a so-called border safety initiative which has been in full swing for a couple of years.

Regarding the rescue figures that you cited, it seems that the Border Parol has skewed the numbers by including hundreds of people who were "liberated" at the checkpoints -- i.e., people who were discovered to be traveling in car trunks, etc. In any event, a border-wide death-to-rescue ratio of 1:6.6 is not something to celebrate, especially when you consider that El Centro, the most dangerous sector, had a 1:2.8 ratio -- down only minimally from FY 1999.[3]

According to your own count, at least one migrant a day is dying between San Diego and Brownsville. You and I can rail at smugglers, as well we should, but there is no getting around the following fact: the Border Patrol anticipated that migrants would opt for the new routes. As the 1994 blueprint for Operation Gatekeeper and its counterparts predicted, illegal entrants who are "forced over more hostile terrain, less suited for crossing and more suited for enforcement, [could] find themselves in mortal danger."[4] The planners figured that the "influx would adjust to Border Patrol changing tactics" (i.e., migrants would take the new routes).[5] All and all, expressions of shock that migrants would trek across the desert, etc. are rather disingenuous.

Turning to "rockings" and hollow-point bullets, I understand that expanding bullets are standard ammunition for the .45-caliber guns that Border Patrol agents carry. You and I have corresponded before about "rockings" -- real or imagined. Two years ago, you assured me that the Border Patrol was "developing programs to better prepare agents for dealing with [rock-throwing] without resorting to deadly force."[6] I wonder if those programs have reached the San Diego sector. Ramino Ramírez (probably an alias) was shot in the stomach and left leg on August 22nd of this year, near Goat Canyon. The shot to the abdomen caused such serious damage that he remained in the hospital for months. He was discharged only recently. Mexican authorities tell me the witnesses were adamant that Mr. Ramírez had no rock and made no threatening movements. Putting that issue aside, I am asking that the Border Patrol immediately review the use of hollow-point bullets. 

I am familiar with the argument that hollow-point bullets are safer for the public because they are less likely than solid bullets to ricochet or pass through the intended target and strike an innocent bystander. The flip-side of that argument is that hollow-point bullets can also result in much more severe injuries to bystanders (not to mention to agents, should there be a ricochet effect). In this connection, I understand that there are different types of hollow-point bullets -- i.e., some which expand less than others. Which type does the Border Patrol use? From the literature on hollow-point bullets, it is clear that criminologists do not agree on whether collateral shootings decrease when a switch is made from full metal jacket bullets to hollow-point bullets. No definitive studies have been done.

I am also familiar with the argument that a standard bullet, which makes a clean wound, does not incapacitate the target as quickly as a bullet which expands upon impact. I am told by ballistics experts that a single hollow-point bullet is enough to stop a suspect. If so, why have all the "rocking" suspects of which I am aware been shot so many times? For example, Oscar Abel Córdova and Leonel Huicaza were hit by at least two or three bullets each on September 26 and 27, 1998. Reportedly these were only some of the several shots fired at them. At least three shots were fired at Mr. Ramírez -- i.e., three expansive bullets actually hit him. 

As a New York Times editorial pointed out when the New York City Police Department was considering hollow-point bullets, "[a] better way to increase safety is to insure that officers can actually hit what they aim at. That takes target practice, not a new brand of deadlier ammunition."[7] Nevertheless, New York City made the switch. Amadou Diallo was shot repeatedly with hollow-point bullets and the rest, as they say, is history. Among the demands made by a broad coalition after the Diallo shooting was that the use of hollow-point bullets be discontinued.

In short, there is no evidence that the benefit of using hollow-point bullets outweighs the damage. Moreover, given that hollow-point bullets were outlawed by the Hague Peace Convention in 1899, their use at an international border is especially troubling.[8] As Professor Jorge Vargas of the University of San Diego Law School asks in a treatise about migrants and the human rights abuses to which they are subjected, "is there a valid reason for U.S. Border Patrol agents to use expansive bullets in their enforcement activities along the border with our neighboring country Mexico, our second largest trade partner, when the U.S. Army would not be able to use these bullets in a war situation?"

I look forward to your reply.

Sincerely,


CLAUDIA E. SMITH
Border Project Director


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[1] As you know, the Border Patrol does not include border crossing related deaths on the Mexican side of the mountains, deserts, canals and rivers which straddle the Southwest border (e.g., the bodies washed up on the southern banks of the Rio Grande). The Mexican Foreign Relations Office reports that just since January of this year, 50 of its citizens died on Mexican territory while trying to enter the U.S. illegally, for a combined total of 445 migrant deaths from January 1st to November 15th. 
[2] See "Catholic Bishops call for immigration reform," Los Angeles Times, 11/17/00. See also the National Conference of Catholic Bishops website at www.nccbuscc.org.
[3] El Centro had the highest number of migrant deaths for the third consecutive year. 
[4] See pp. 2 and 7 of the "Border Patrol Strategic Plan: 1994 and Beyond," prepared by the Border Patrol in July, 1994 and approved by Commissioner Meissner in August of that year.
[5] Ibid. at p. 4
[6] See your 1/14/99 letter to me, where you mentioned that the use of protective gear was under study. What were the conclusions?
[7] See "Bullets designed to maim," New York Times, 7/10/98.
[8] "[E]xpanding bullets (called dumdums after the British arsenal in India where they were designed and first manufactured) have a metal jacket open at both ends, so they flatten on contact with living tissue and produce great internal damage. All soft bullets, split-nose bullets, hollow-point bullets, and jacketed bullets with the core exposed at the tip are of this type. They are used for big-game hunting because of their great stopping power. The use of dumdum bullets for war was outlawed by The Hague Convention of 1899." See Encyclopedia Americana, Vol. 4 at 762 (1969). Also see Declaration Respecting the Prohibition of the Use of Expanding Bullets, signed at The Hague on July 29, 1899, AJIL at 1002, and Parry, Consolidated Treaty Series, Vol. 187 at 495-500.