By Mike Carter (Sunday, November 29, 2009 )
Seattle Times staff reporter
MOUNT VERNON — The federal government has paid an illegal immigrant $48,000 to settle a lawsuit alleging he was assaulted and illegally arrested by two U.S. Customs and Border Patrol agents while waiting for his 6-year-old son at a bus stop.
The violent and public June 12, 2006, arrest of Isabel Valencia-Perez of Mount Vernon strained relations between the city’s police department and the federal agency. There were enough questions over what had happened that city and Skagit County prosecutors contemplated filing criminal charges against agents Daryl Schermerhorn and Steven Malpezzi, according to documents obtained by The Seattle Times through a public-disclosure request.
The FBI opened a criminal civil-rights investigation, looking into allegations of excessive force and concerns the customs agents set an unreasonably high bail for Valencia-Perez and tried to have him deported as quickly as possible.
The Mexican Consul was so concerned with the incident that it sent a Seattle immigration lawyer to represent Valencia-Perez. The consulate even helped pay for his bond when the attorney, Manuel Rios, got it reduced from $50,000 to $5,000.
No charges ultimately were filed against the agents or Valencia-Perez. Customs and Border Patrol says neither of the agents was disciplined.
The lawsuit, filed last year, was settled by federal prosecutors from the U.S. Attorney’s Office in San Francisco, who declined to comment. The U.S. Attorney’s Office in Seattle wasn’t involved in the civil case because it had overseen the criminal civil-rights investigation.
Rios said the Department of Homeland Security terminated its efforts to deport Valencia-Perez, and that he and his family remain undocumented in the U.S.
“It’s weird. They just walked away from it,” he said. “It’s like it never happened.”
Rios is attempting to win Valencia-Perez a crime-victim’s visa that could allow him to become a legal resident in three years due to his cooperation. So far, he’s had no luck.
According to police and prosecutor’s reports obtained by The Times, the agents had tried to arrest Valencia-Perez after spotting him sitting on the grass in a poor and heavily Latino Mount Vernon neighborhood. The agents were several miles from where they were supposed to be — checking for undocumented inmates in the local jail.
Agent an elected official
Malpezzi — who is an elected Ferndale City councilman — explained that he and Schermerhorn merely were familiarizing themselves with the area when they spotted Valencia-Perez, who the agents said looked nervous when they drove by in their unmarked white Ford Crown-Victoria.
Schermerhorn, who has been an outspoken critic of immigration policies as the former regional vice president of the national Border Patrol union, told detectives he decided to “talk to this person about his alienage.”
Valencia-Perez’s attorneys say that translates to a case of racial profiling.
What ensued was an altercation between Schermerhorn and Valencia-Perez that, based on Mount Vernon police reports and court documents, came about mostly because Valencia-Perez didn’t speak English, and Schermerhorn — who was in civilian clothes and a passenger in an unmarked car — didn’t adequately identify himself as a federal agent.
Valencia-Perez later told police he had been nervous because the two “strange men” stared at him as they drove by. He stood when Schermerhorn exited the car and made a beeline toward him.
Schermerhorn said Valencia-Perez started to run so he grabbed him by the arm. Valencia-Perez said the man slugged him hard in the eye, and they fell fighting to the ground.
Mary Pullin, a Mount Vernon High School counselor, called 911 shortly before noon to report two men were fighting with a smaller man. She told the dispatcher one of the men was trying to wrap a chain around the smaller man. Several officers were dispatched.
Pullin had no idea the two larger men were federal agents.
Moreover, the agents hadn’t told Mount Vernon police they were in the area, a courtesy among law-enforcement agencies who find themselves in someone else’s jurisdiction.
The fight broke out less than a block from a neighborhood police office, according to the records.
Local officers in dark
Mount Vernon officers who responded to Pullin’s 911 call had no idea what was going on, and one officer described in his report that he unsnapped his holster and prepared to draw his weapon when one of the men announced he had dropped a gun in the scuffle.
The weapon belonged to Malpezzi, who earlier had pointed it at Valencia-Perez’s head before he dropped it, according to the police reports.
The agents also had attempted to subdue Valencia-Perez without handcuffs because neither of them was carrying a pair. They borrowed cuffs from a Mount Vernon officer once the confusion was cleared up.
One police officer noted the agents were in jeans and sports shirts without their badges visible or anything else to identify them as law-enforcement officers.
A Mount Vernon detective, in his report, said he “pointed out to the agents that if they decided to work in Mount Vernon, they should have contacted our dispatch center.”
Detectives took Valencia-Perez to the police station, who waived his rights and went on to ask why he’d been attacked. The report notes his injuries included “swelling, bruising around his right eye-socket area, a bloodshot red right eye, swelling on the right cheek … swelling and discoloration and bruising around his left cheek area” along with other contusions and bruising.
Schermerhorn suffered “two slight scratches” on his forehead. Malpezzi had a scratch on his wrist.
Pullin, the school counselor, later told the detectives that after the smaller man had been subdued and was lying facedown, one of the large men kicked him twice in the side. A 19-year-old passenger in her car said one of the agents was “striking with clenched fists and kicking the male on the ground.” she described it as a “scary situation that was violent and aggressive,” according to police reports.
Detectives in Mount Vernon referred the case to the Skagit County Prosecutor’s Office, seeking felony assault charges against the agents. The prosecutor declined to file them, but suggested misdemeanor charges might be appropriate.
The City Attorney’s Office determined that, once Valencia-Perez resisted, the officers were justified in using force to subdue him. Malpezzi, the prosecutor said, also was coming to the aid of a fellow officer.
But he also found that Valencia-Perez could not be prosecuted for resisting arrest. The agents had failed to properly identify themselves and, as a result, Valencia-Perez likely could claim self-defense, according to the documents.
Mike Carter: 206-464-3706 or firstname.lastname@example.org
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