Lawyer Confirms Mexican Shot by Border Agents May Sue Gov't

By Fred Lucas | July 7, 2008 | 8:23 PM EDT

( - The suspected drug smuggler shot by two U.S. Border Patrol agents may sue the federal government for up to $5 million.

Walter Boyaki, the El Paso, Texas-based attorney for Osvaldo Aldrete-Davila, told Cybercast News Service Wednesday he was exploring a lawsuit for his client, but he added that no papers have been filed yet in federal court. He was reluctant to go into detail about the complaint other than to say it would accuse the government of negligence.

The conviction and recent imprisonment of the agents has unleashed a storm of controversy, with a number of Republican lawmakers attacking President Bush over the episode.

Boyaki said the reaction had affected him too.

"You ought to see all the right wing nuts that have threatened me and everybody else in this case," he said.

Agents Ignacio Ramos and Jose Compean recently began serving their respective prison sentences of 11 and 12 years after being convicted of shooting Aldrete-Davila and trying to cover it up.

The pair encountered Aldrete-Davila in February 2005 in a van later found to contain 743 pounds of marijuana. When the Mexican tried to flee, the agents shot him in the buttocks as he was crossing back over the border.

U.S. Attorney Johnny Sutton sought out Aldrete-Davila in Mexico and offered him an immunity deal to return to the United States and testify against the two agents.

Sutton says his office had the responsibility to uphold the rule of law even when it extends to law enforcement agents.

He confirmed that his office is investigating a separate drug charge against Aldrete-Davila that was not part of the immunity deal.

The agents' defense argued unsuccessfully that Compean and Ramos believed Aldrete-Davila possessed a weapon.

Boyaki said Wednesday that under legal precedent, a person does not have to be a citizen to bring a lawsuit.

"They [the agents] violated the law of their procedures," the lawyer said. "You don't get to violate your procedures. Your boss gives you certain procedure follow. Don't violate those procedures. That's negligence."

Boyaki said suing the federal government is not easy because of sovereign immunity.

"You can't sue the government because you don't like them," he said. "I've sued the government. I've done it 500 times. You can sue the government for negligence in certain circumstances. The United States gives you the ability to sue it under statute but very limited waiver of their sovereignty. You do not get a jury. You only get a judge."

Asked why the lawsuit could seek $5 million, Boyaki said the amount was chosen because that's how the procedure works.

"If you sue the government as many times as I do, you know the amounts [you can sue for] are $5 million, $10 million or $50 millions. The numbers only go down. They won't go up. So you pick a number that has nothing do with case and you know you don't have to worry about that again."

See Also:
State Republican Parties Join Calls To Free Border Agents (Feb. 1, 2007)

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