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Hernandez Family Accepts "Humanitarian" Payment for Son's Shooting Death by Anti-Drug Marine Patrol; Defense Department Probe of Killing Criticizes Training and Supervision of Patrol

LAW ENFORCEMENT

September-October 1998

The federal government will pay $1.9 million to the family of Esequiel Hernandez, who was killed on May 20, 1997 by an anti-drug Marine patrol led by Marine Corporal Clemente Banuelos. The 18-year-old Hernandez was killed while herding goats near his home in Redford, Texas, along the state's border with Mexico. According to the Hernandez family's lawyer, Bill Weinacht, the settlement brings an end to legal action by the family (Associated Press, "U.S. to pay $1.9M to family of teen slain by Marine," USA Today, August 12, 1998, p. 8A; David LaGesse and Nancy San Martin, "U.S agrees to pay family in teen's border killing," Dallas Morning News, August 12, 1998).

Jack Zimmerman, an attorney for Banuelos, said the government admitted no wrongdoing in the settlement, which was a "humanitarian" payment. Attorney David Sheldon, a member of the National Institute of Military Justice, said the settlement is large for a wrongful death case. "Obviously, if they're to settle this for $1.9 million, they saw their liability as grave," said Sheldon

In the incident, the Marines claimed self defense because Hernandez allegedly (and implausibly) fired his antique .22 caliber rifle at the patrol. However, families and friends said Hernandez would never have knowingly shot at anyone and doubted that the teenager identified the heavily camouflaged patrol hiding hundreds of feet away in Texas brush as human beings. Hernandez carried his gun to target shoot and to protect his livestock from coyotes and other wild animals. No drugs were found on Hernandez or in his system. He has no criminal record ("18-Year-Old Texan, Herding Goats, Killed by U.S. Marine Corps Anti-Drug Patrol," NewsBriefs, July 1997, p. 3).

The incident prompted criticism about the use of military patrols for law enforcement on the border. Shortly after the shooting, the Pentagon suspended anti-drug patrols on the border, a move supported by the Clinton Administration. However, the U.S. House recently approved once again a measure by U.S. Rep. Jim Traficant (D-OH) to post up to 10,000 troops on the border for counter-drug efforts ("Neighbors of Texan Killed by Military Anti-Drug Patrol Petition for Demilitarization of Border," Pentagon Pulls Anti-Drug Troops From Border; State Grand Jury Decides Not to Indict Marine," NewsBriefs, August 1997, p. 3).

DOD INVESTIGATION OF INCIDENT SAYS MARINES WERE INADEQUATELY TRAINED

The U.S. Marines involved in the fatal shooting of Hernandez were inadequately trained for armed operations among civilians, according to a separate Department of Defense investigation of the incident. The investigation found that there were "systematic failures at every level of command" ("Marines criticized," USA Today, September 10, 1998, p. 8A; "Marines tied to teen death are faulted on training," Chicago Tribune, September 10, 1998; Associated Press, "Military study criticizes Marines for fatal shooting of goatherd," Boston Globe, September 10, 1998, p. A15; Jess Katz, "Marines Faulted in Own Report on Teen's Death," Los Angeles Times, September 20, 1998).

The patrol received only three days of training in California and were briefed that Redford was "not a friendly town," and that drug traffickers operating there represented "an organized, sophisticated and dangerous enemy."

The critical report said Marine commanders did not do enough to prevent the incident. The mission "appears to have been viewed at every level of Marine Corps command as more of a training opportunity than a real-world deployment," wrote retired Marine Major General John Coyne, who led a 22-member team that investigated the shooting. "The failure to appreciate the differences had tragic consequences," he said. "Basic Marine Corps combat training instills an aggressive spirit," Coyne wrote, which is "far removed from the reality of manning an observation post on private property, adjacent to a small community, on United States soil."

Coyne said that Captain Lance McDaniel, who was in contact with the anti-drug patrol during the incident, was too passive in deferring to Banuelos' decision to fire at Hernandez. McDaniel "should have made a more aggressive effort to obtain the facts and control the tactical decision-making process," Coyne wrote. The report criticized the Marines in the incident for not waiting for civilian authorities or identifying themselves to Hernandez. Coyne concluded that Banuelos acted reasonably "in light of the training he received for this mission."

In a rebuttal to General Coyne's report, the Marine Corps, said, "Mr. Hernandez is dead neither because of inadequate training, nor insufficient training time, nor improper adherence to the `rules of engagement.'" General John H. Admire, the commander of Camp Pendleton's 1st Marine Division, where Banuelos was stationed, said the report was arbitrary, misleading, and full of "unsupported and inconclusive allegations." Admire said the shooting was tragic but was one that Hernandez alone provoked.

In an editorial, the Houston Chronicle wrote: "Absent a clear solution [to the drug war], the nation should err on the side of constitutionality; the concern about military involvement in civilian affairs is a serious one" (Editorial, "Concern Serious," Houston Chronicle, September 11, 1998).

ANOTHER GRAND JURY DECLINES TO INDICT MARINES; CONGRESSIONAL PROBE STILL ALIVE

On August 11, 1998, a Presidio County grand jury declined to indict Cpl. Banuelos with murder in the incident (Thaddeus Herrick, "Family to receive $1.9 million in border shooting," Houston Chronicle, August 12, 1998, p. A1).

It was the second time in a year that a grand jury declined to bring charges against Banuelos. In addition, a federal civil rights inquiry failed to bring an indictment ("No Civil Rights Charges in Hernandez Border Shooting, Says Justice Department," NewsBriefs, February 1998, p. 25).

A House panel is currently investigating the border shooting. The U.S. House Judiciary Subcommittee on Immigration and Claims, Chaired by Rep. Lamar Smith (R-TX), is examining 20 boxes of information and evidence and is considering whether to conduct hearings about the incident. Smith called the Coyne report "an effort by the Department of Defense to find the truth and hold people accountable, which is more than I can say for the Department of Justice." The report "shows that the tragic death occurred as a result of a botched operation," he said. "There was poor training and preparation, inept coordination and a lack of management control" (Thaddeus Herrick, "Marines misplaced on border, study says," Houston Chronicle, September 10, 1998; "Ex-Marine Could Face House Probe in Border Killing," Orange County Register, August 23, 1998; see "House Panel Subpoenas Files in Hernandez Killing," NewsBriefs, May-June 1998, p. 33).

Attorney Bill Weinacht , Hernandez family attorney - 420 S. Cypress, Pecos, TX 79772, Tel: (915) 445-2013, Fax: (915) 445-5255.

Coyne Report located on-line at: <http://www.metrotimes.com/coynereport.html>.

Rep. Jim Traficant - 2446 RHOB, Washington, DC 20515, Tel: (202) 225-5261, Fax: (202) 225-5261, E-mail: <telljim@hr.house.gov>.

Rep. Lamar Smith - 2231 RHOB, Washington, DC 20515, Tel: (202) 225-4236, Fax: (202) 225-8628, E-mail: <lamars@mail.house.gov>.