The Beanbag Question

High-ranking Border Patrol officials have different ideas about what happened on the night when Agent Brian Terry was killed

Many critical details surrounding the killing of Border Patrol Agent Brian Terry on Dec. 14 remain unknown, as the active murder investigation proceeds.

But an important fact has been established: The agents working in Peck Canyon that night first fired at the bandits with beanbag rounds.

Why direct nonlethal fire at dangerous men armed with rifles? Did the rules of engagement require the first use of something other than deadly force?

The episode occurred at Peck Well, 11 miles north of the border on the Coronado National Forest, northwest of Nogales. According to a leaked Border Patrol report, Terry's BORTAC team—an elite tactical unit—was conducting "laying-in operations" when five men approached, at least two carrying rifles.

After identifying themselves as Border Patrol agents, one of them fired twice with a beanbag shotgun. This same agent then fired "an unknown number of rounds from his service-issued sidearm."

Another agent fired at the men with his M-4 rifle. Terry, shot in the back, "called out that he was hit and couldn't feel his legs," and soon lost consciousness.

Homeland Security officials remained mostly silent on the beanbag question until earlier this month, when Alan Bersin, commissioner of U.S. Customs and Border Protection, spoke at a Tucson press conference. He said the BORTAC team made the decision on its own, based on the circumstances, to first use nonlethal force.

"There is no policy and was no standing policy regarding the use of nonlethal force as a prelude to the use of lethal force," Bersin said. "... The agents were armed as they needed to be. They were prepared to use lethal force and did."

Homeland Security Secretary Janet Napolitano said agents were allowed to use lethal force if "under threat of serious injury or death."

But the National Border Patrol Council, the agents' union, isn't buying it.

"It makes absolutely no sense that someone trained in tactics would opt for less than lethal force when facing bandits with rifles," says T.J. Bonner, who headed the union until his retirement on March 7. "The intelligence was solid that these guys operated in that area with rifles."

Bonner says his opinion is based mainly on talks with other tactically trained agents, adding that he hasn't spoken to any of the agents present in Peck Canyon that night.

"They've all lawyered up," says Bonner.

However, Ron Colburn, who recently retired as national deputy chief of Border Patrol, is a tactically trained agent who says Bersin's comments ring true.

"The team chooses their method for challenging those dark silhouettes in the night," says Colburn, who also hasn't spoken to members of Terry's team since the firefight. "It's entirely up to them."

Colburn is one of the founders of the 27-year-old BORTAC unit and one of its first agents. He also served as a BORTAC team leader on numerous tactical missions, including some in the rugged Peck Canyon smuggling corridor.

A key point, says Colburn, is that no law-enforcement agency in America shoots first and asks questions later.

"People say, 'Gee, Border Patrol used beanbags? Why didn't they just shoot these guys?'" says Colburn. "Because a domestic law-enforcement interdiction is entirely different from what our soldiers in Afghanistan do."

The goal in a domestic interdiction is to challenge the bad guys and make an arrest.

Colburn says BORTAC agents typically fire nonlethal devices, simultaneous to shouting for their targets to drop their weapons. This could be beanbags or flash bangs, which explode and emit a disorienting bright light, allowing agents to move in and make arrests.

Colburn says that the challenge phase occasionally doesn't work, and the bad guys open fire. In this case, terrible luck intervened, and a bullet found Terry, making him the first BORTAC agent killed in the line of duty.

"You either try to gain surprise and intimidate your suspects with less-lethal devises first, or you use no force at all," says Colburn. "Those are your choices."

He was on a radio show recently during which the claim was made that Obama was ordering agents into the field with less-than-lethal munitions against guys carrying AK-47s.

"I understand they feel they have a noble cause they want to perpetuate," Colburn says about people who make such claims. "But it's not the truth."

Bonner remains unsatisfied, saying someone at high levels of government knows what happened that night and will have to answer questions at some point. Exactly what orders were given?

"People don't come up with ideas like that on their own," says Bonner. "They have to come from on high, and the administration is going to have to come clean. They've been less than honest on this from the get-go."

As for life in the Peck Canyon Corridor since the shooting, David Lowell of the Atascosa Ranch says illicit traffic has dropped noticeably, due to a ramped-up law-enforcement presence. "Border Patrol must've invested $1 million in helicopter flights and ground patrols since the murder," says Lowell, whose home is less than two miles from the scene of the firefight.

But the traffic hasn't stopped entirely. Early in March, Lowell saw drug mules walking through Peck Canyon 200 feet from his house. Border Patrol vehicles responded, but Lowell doesn't know if anyone was apprehended.

He says Border Patrol agents rarely tell residents anything, and Lowell believes that's essentially an effort to control the news. It makes him question whether calling in sightings is wise.

"It puts our neck on the block, to some extent," he says. "If it isn't a cooperative venture with the Border Patrol, maybe it doesn't pay to report things. The bad guys might find out and kill our dogs or burn our house."

Colburn himself ran into a clumsy effort at news control after he was quoted on CNN in late February. The piece was about the decision by DHS to change how it measures border security. The government is scuttling the long-used concept of operational control, and replacing it by counting apprehensions and seizures of drugs, weapons and currency.

Some suspect the Obama administration sees the operational-control standard as a barrier to its real goal of comprehensive immigration reform. CNN used a six-second bite from Colburn's 60-minute interview to give the impression that he shared that opinion.

Next day, he got a call from what he calls a "high-level" CBP official wanting "to disabuse him of his opinion." Colburn advised the caller to go back to leadership and tell them to declare publicly that the change has nothing to do with comprehensive immigration reform.

"They haven't done that, and their silence speaks a thousand words," says Colburn.

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