Illegal immigrant gets $48,000 in suit against border agents

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 =wo U.S. Customs and Border Patrol agents while waiting for his 6-year-old son at = bus stop.

The violent and public June 12, 2006, arrest of Isabel Valencia-Perez =f Mount Vernon strained relations between the city's police department and =he federal agency. There were enough questions over what had happened that =ity and Skagit County prosecutors contemplated filing criminal charges against =gents Daryl Schermerhorn and Steven Malpezzi, according to documents obtained =y 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 =s quickly as possible.

The Mexican Consul was so concerned with the incident that it sent a =eattle immigration lawyer to represent Valencia-Perez. The consulate even =elped pay for his bond when the attorney, Manuel Rios, got it reduced from $50,000 =o $5,000.

No charges ultimately were filed against the agents or =alencia-Perez. Customs and Border Patrol says neither of the agents was =isciplined.

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 mcarter@seattletimes.com< P>