All counts against them were ultimately dismissed in September 2006.
These days, the Border Patrol's Tucson Sector has a new chief, and relations between agents and activists seem to have taken a more civil turn. But the Border Patrol also has a lot more company out there, from National Guard troops and wildlife investigators to plain-clothed agents from the federal Bureau of Land Management and the Fish and Wildlife Service. And it seems that at least a few of these cops are still failing to distinguish between the good guys and the bad.
Now a volunteer with the Samaritans immigrant-aid group, Kathryn Ferguson, finds herself in federal court after being handcuffed and cited by a BLM agent in the tough hills above Arivaca. That January encounter was followed by at least two more run-ins with BLM and FWS agents a few weeks later.
Do these dustups mark a return to the bad old days?
"I would prefer to interpret it as a pattern of misunderstandings," says Margo Cowan, a Tucson attorney who advises both No More Deaths and the Samaritans. "We have no interest in being entangled in a legal fight."
Ferguson declined to comment, citing the ongoing legal case. But Cowan says the volunteer, accompanied by another woman and a boy, was patrolling for immigrants in distress when an unmarked truck pulled up behind them. Ferguson got out of her car and asked the driver "if she could help him with something," says Cowan. "She got a hostile answer back."
So Ferguson asked for identification, which the man reportedly refused to provide. At that point, she began writing down his license plate number. The man got out of his truck; words ensued, "and there was a shove at some point," Cowan says. "The long and short of it was that she was handcuffed and held beside the truck."
As it turns out, the man in the truck was a plain-clothed agent with the BLM. He cited Ferguson for creating a hazard and released her.
But this intriguing query lingers: Why was a BLM agent cruising along Arivaca Road, a good 90-minute drive from the agency's San Pedro River preserve? "That's a good question," Cowan says, adding that she believes the agent was with the High Intensity Drug Trafficking Area program, a cooperative effort between local, state and federal agencies. But if these agents are supposed to be stopping drug loads, "Why are they bullying volunteers instead?" she asks. "That's not acceptable."
Joanie Losacco is a spokeswoman for the BLM in Arizona. While her agency does cooperate in area anti-drug efforts, she can't comment on the still-open Ferguson case. However, the agents' mission "is the same on the border as it is everywhere else," she says. "And we're not out there to do immigration work, so to speak. It's the primary responsibility of the Department of Homeland Security to manage illegal immigration. But of course, when things occur on public lands, it's our role to assist the DHS in those issues."
The BLM has a formal cooperative agreement with other federal agencies, including the Forest Service, the Fish and Wildlife Service "and all the natural-resource agencies and the counties and states and so forth," Losacco says. "They all back each other up out there."
Still, so many agents from such a variety of agencies all roaming the area may hike the risk of confusion and confrontation. That's according to Dr. Jose Garcia, an expert on border security and an associate professor in the Department of Government at New Mexico State University. "There's been a crash-effort to increase the presence of law-enforcement personnel, to get these guys out in the field," he says. "But part of problem is that they're not all sufficiently trained to know exactly what they're getting into.
"They don't have a lot of expertise in a particular locale. Or in the case of the National Guard, they weren't trained at all in law enforcement. They were trained in military techniques, and they're finding themselves in situations calling for law-enforcement techniques."
There's a vast gulf between those two activities, Garcia says. "Law enforcement is a delicate issue, because you can have collateral damage. And while it's good for law-enforcement officers to be exuberant and dedicated and earnest in their jobs, sometimes they overreact. Sometimes they don't distinguish sufficiently between the people they're trying to apprehend and those they are not."
However, Losacco says that nobody gets special treatment. "Volunteer groups are no different than any other person out there on the border. We are not distinguishing between volunteers and other public-lands recreationists."
Even when a distinction is made, trouble can follow. That was demonstrated in February on the Buenos Aires National Wildlife Refuge, when an activist was cited for leaving water jugs for immigrants after refuge officials had already allowed placement of a flagged water station. Fish and Wildlife spokeswoman Elizabeth Slown calls it a simple case of littering.
But she says that 15 agents and one wildlife inspector, assigned by FWS to the border area, reflect a growing law-enforcement challenge. "Things have certainly heightened, even in the last five years. Our agents end up dealing with people more than with animals now."
That tension also explains much about the Ferguson case.
Tom Lister is the BLM's acting special agent in charge for Arizona. He says his folks don't always eagerly announce themselves when they're out working a case. However, "agents do identify themselves when appropriate. Depending upon the purpose, they'll engage in conversation. But if I want to ask you general questions, I'm not required to identify myself."
Still, at least in the case of Kathryn Ferguson, that simple act might have avoided a nasty encounter and dubious legal proceedings.
Then again, maybe not. Dr. Garcia suggests that such confrontations may just be a sign of the times.
"There is an ideological bias," he says, "shared by many law-enforcement agents who find themselves on the border. The right-wing character of Homeland Security--as it's been construed by the Bush administration--has communicated negative feelings about citizens who disagree with them. So along with insufficient training, many agents may come with attitudes that are negative toward human-rights groups. And that's not a happy situation."