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 =he U.S. Attorney’s Office in San Francisco, who declined to comment. The =.S. Attorney’s Office in Seattle wasn’t involved in the civil case because =t had overseen the criminal civil-rights investigation.
Rios said the Department of Homeland Security terminated its efforts =o deport Valencia-Perez, and that he and his family remain undocumented in =he U.S.
“It’s weird. They just walked away from it,” he said. “It’s like it =ever happened.”
Rios is attempting to win Valencia-Perez a crime-victim’s visa that =ould allow him to become a legal resident in three years due to his =ooperation. So far, he’s had no luck.
According to police and prosecutor’s reports obtained by The Times, =he agents had tried to arrest Valencia-Perez after spotting him sitting on =he grass in a poor and heavily Latino Mount Vernon =eighborhood. The agents were several miles from where they were supposed to be — =hecking for undocumented inmates in the local jail.
Agent an elected official
Malpezzi — who is an elected Ferndale City councilman — explained =hat he and Schermerhorn merely were familiarizing themselves with the area when =hey spotted Valencia-Perez, who the agents said looked nervous when they =rove by in their unmarked white Ford Crown-Victoria.
Schermerhorn, who has been an outspoken critic of immigration =olicies 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 =alencia-Perez that, based on Mount Vernon police reports and court documents, came about =ostly because Valencia-Perez didn’t speak English, and Schermerhorn — who =as in civilian clothes and a passenger in an unmarked car — didn’t =dequately 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 =he car and made a beeline toward him.
Schermerhorn said Valencia-Perez started to run so he grabbed him by =he arm. Valencia-Perez said the man slugged him hard in the eye, and they fell =ighting to the ground.
Mary Pullin, a Mount Vernon High School counselor, called 911 shortly =efore noon to report two men were fighting with a smaller man. She told the =ispatcher one of the men was trying to wrap a chain around the smaller man. =everal 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 =rea, a courtesy among law-enforcement agencies who find themselves in someone =lse’s jurisdiction.
The fight broke out less than a block from a neighborhood police =ffice, according to the records.
Local officers in dark
Mount Vernon officers who responded to Pullin’s 911 call had no idea =hat was going on, and one officer described in his report that he unsnapped his =olster and prepared to draw his weapon when one of the men announced he had =ropped 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 =eports.
The agents also had attempted to subdue Valencia-Perez without =andcuffs because neither of them was carrying a pair. They borrowed cuffs from a =ount Vernon officer once the confusion was cleared up.
One police officer noted the agents were in jeans and sports shirts =ithout their badges visible or anything else to identify them as =aw-enforcement officers.
A Mount Vernon detective, in his report, said he “pointed out to the =gents that if they decided to work in Mount Vernon, they should have contacted =ur dispatch center.”
Detectives took Valencia-Perez to the police station, who waived his =ights 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 =loodshot red right eye, swelling on the right cheek … swelling and discoloration =nd bruising around his left cheek area” along with other contusions and bruising.
Schermerhorn suffered “two slight scratches” on his forehead. =alpezzi had a scratch on his wrist.
Pullin, the school counselor, later told the detectives that after =he smaller man had been subdued and was lying facedown, one of the large =en kicked him twice in the side. A 19-year-old passenger in her car said one of =he agents was “striking with clenched fists and kicking the male on the ground.” =he described it as a “scary situation that was violent and aggressive,” =ccording to police reports.
Detectives in Mount Vernon referred the case to the Skagit County Prosecutor’s Office, seeking felony assault charges against the agents. =he prosecutor declined to file them, but suggested misdemeanor charges =ight be appropriate.
The City Attorney’s Office determined that, once Valencia-Perez =esisted, the officers were justified in using force to subdue him. Malpezzi, the =rosecutor said, also was coming to the aid of a fellow officer.
But he also found that Valencia-Perez could not be prosecuted for =esisting arrest. The agents had failed to properly identify themselves and, as a =esult, Valencia-Perez likely could claim self-defense, according to the =ocuments.
Mike Carter: 206-464-3706 or firstname.lastname@example.org< P>
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