Settlement Sends Signal On Violence By Border Patrol

THE family of a Mexican man who was killed by a Border Patrol agent three years ago has settled its lawsuits against the agent and the United States government for about $612,000 - one of the largest payments of its kind.

But the settlement is unlikely to end controversy over this notorious case or other border incidents. Concern about violence - both by agents and against them - has grown as the flow of Mexican illegal immigrants has risen and the US government has beefed up patrols.

"At least, it's a symbolic gesture that the family was wronged, and hopefully it will send a message to other Border Patrol agents," says Allyson Collins of Human Rights Watch/Americas, a group that produces studies on human rights abuses along the US-Mexico border.

Former Border Patrol Agent Michael Elmer was tried and acquitted twice for shooting unarmed Dario Miranda Valenzuela in the back on June 12, 1992.

The Elmer acquittals sparked outrage among human rights groups and helped lead to the creation of a federal advisory panel to monitor abuses by Border Patrol agents. Critics, however, charge that the panel has no power to investigate complaints independently.

"The panel has some good people on it, but it does not take care of the problem that people don't trust the Border Patrol to investigate itself," Ms. Collins says.

The settlement ($472,000 from the US government and $140,000 from Elmer's insurance policy) is one of the largest ever paid in a Border Patrol abuse case. The Miranda family's attorneys say it's not enough. But the family was reluctant to go to court again.

In December, 1992, a Tucson jury acquitted Elmer of murder, even though, after shooting Miranda in a canyon west of Nogales, Ariz., Elmer tried to hide the body and failed to report what had happened. In February, 1994, Elmer was again acquitted, this time by a Phoenix jury on federal charges that he violated Miranda's civil rights.

In both cases, the jury was convinced that Elmer shot Miranda in self defense. Elmer testified that he thought Miranda was a scout for drug smugglers and that, in the dusk, a canteen on Miranda's belt looked like a holster. Miranda's family says he on his way to help his cousin on a roofing job in Tucson.

About half the settlement will go to purchase of annuities for Miranda's widow and their two young children. Margarita Tello will receive about $900 a month for the rest of her life. When the children turn 18, they will begin receiving about $700 and $800 a month, respectively.

The remaining money will be divided among family members and the family's attorneys who receive one quarter of the total amount.

Elmer's attorney, Michael Piccarreta, calls the settlements with the Miranda family "a gift from the US government." He says the two jury verdicts proved that Elmer did nothing wrong.

"Legally, they aren't entitled to anything," Piccarreta says. He believes the government accepted liability in the case partially to appease critics of the Border Patrol.

A spokesman for the Justice Department denies the charge. "We don't reach settlements motivated by political considerations," he says, adding that the government considered the settlement "fair and equitable."