By Alan Bean

An Arlington, Texas family has filed a wrongful death suit after officers with the Bureau of Alcohol, Tobacco, Firearms and Explosives, the FBI and other law enforcement agencies broke down a door and killed an innocent, unarmed man.

This is an old, old story.  As an ATF agent quoted in the story says, officers never know what might be waiting for them behind a locked door.  For all they know, a gang of desperadoes, AK 47s at the ready, might be lying in wait.  You have to be prepared for every eventuality, right?

The chances of things ending badly increase with every additional officer involved in the raid.  All it takes is one paranoid kid or a budding sociopath eager for a little gun play and bad things are bound to happen.  A small, experienced unit with high standards of professionalism is much less likely to gun down innocent people than a ragtag assortment of officers who aren’t used to working together.

In this case, at least the ATF had the right house and they appear to have been looking for a genuinely dangerous individual.  But kicking down doors and storming into a room is an intrinsically dangerous undertaking.  The inevitable excuse when the innocent die is the old “I thought he had a gun” canard.  When you enter a room, it can take several seconds to evaluate whether the folks behind the door constitute a threat.  Since dead people can’t kill you, the chances that some undisciplined cowboy will shoot first and ask questions later are unacceptably high.  Anyone, even a child, could be armed.

The high degree of risk inherent in no-knock raids makes the occasional tragedy inevitable.  The officers should have known that the guy they were looking for didn’t own the home they were entering, and that they would likely encounter a family member with no connection to organized crime.  Much better to approach a suspect in such a way that the chances of collateral damage can be reduced.

Overwhelming force is great for officer safety, but it places the public at risk.  No-knock raids should be reserved for truly exceptional situations and I doubt the case described below qualifies.

Arlington family files wrongful death suit after ATF raid

dbarbee@star-telegram.com

The morning he was killed, Harry Wilson Aguilar Sr. stood in the kitchen of an Arlington apartment making school lunches for his grandchildren.

Outside the apartment, about 6:30 a.m., agents from the Bureau of Alcohol, Tobacco, Firearms and Explosives, the FBI and other law officers were lined up in tactical formation.

The ATF and FBI agents broke open the front door. A federal lawsuit filed in Fort Worth says an unidentified ATF agent was standing at the doorway or just outside when he fatally shot the 55-year-old father of three adult children in the neck without provocation.

“They just broke down the door and they shot,” said his widow, Margarita Aguilar.

He died on the way to the hospital.

Harry Aguilar, a house painter, was unarmed, did not pose a threat or imminent danger to the agents and didn’t hinder the agents from entering the apartment, the lawsuit, filed by Aguilar’s family, contends. Aguilar’s son was the subject of the search warrant.

The lawsuit, filed Feb. 3 in U.S. District Court, accuses the agent of shooting Aguilar immediately.

Danny Burns of Fort Worth, one of the attorneys representing the family, said the ATF may say the agents believed that Aguilar had a weapon. A search of the apartment found no firearms, illegal drugs or drug paraphernalia but did discover an air pistol, a gun magazine and a bullet, according to the testimony of a Fort Worth FBI agent in the case involving Aguilar’s son.

The government has not filed an answer to the lawsuit, though a footnote to the court motion says the “United States disputes much of the basis for [the family’s] complaint, such as whether Aguilar Sr. complied with verbal orders of the ATF agent and whether Aguilar Sr. made threatening motions toward the ATF agent.”

An ATF agent referred questions about the case to U.S. Attorney Sarah R. Saldaña’s office. Her spokeswoman said the office wouldn’t comment on the pending litigation.

After the October 2008 raid, the ATF said it was investigating internally. No one would comment on the results.

The shooting was investigated by the Arlington Police Department and forwarded to the Tarrant County district attorney’s office for review. A police spokeswoman said she did not know what recommended charge, if any, was forwarded to prosecutors.

Melody McDonald, a spokeswoman for the district attorney, said the case was presented to a grand jury in March 2009 and the panel “decided to take no action.”

McDonald said she could not provide additional information, such as the agent’s name, because the matter was sent by referral by a police agency. “He was not charged with a crime, and his name and the details are not public record,” she said.

Agents were searching the apartment in relation to Aguilar’s son, Harry Aguilar Jr., who court records say is a drug dealer, convicted murderer and member of the Texas Syndicate prison gang. The younger Aguilar, known as “Charlie Brown,” was part of a sweep of syndicate members in the Fort Worth area.

He was among 36 defendants sentenced as part of a drug-trafficking conspiracy in Fort Worth, according to the Justice Department. Several Texas Syndicate members were also accused of conspiring in an enterprise responsible for murders, attempted murders, conspiracies to commit murder, robbery and other crimes in North Texas and other areas, according to federal authorities.

The younger Aguilar pleaded guilty to distribution of cocaine and was sentenced to 87 months in federal prison. Sometime after the shooting, his wife, Sandra, said her children could not stay in the house because of the death of her father-in-law.

“They’re traumatized,” she said, according to a court transcript. “They saw what happened.”

ATF has been under scrutiny for what some have condemned as shameful abuses related to its Fast and Furious operation to monitor gun-trafficking to Mexico.

But the agency has also recently suffered other black eyes for blunders.

On the evening of June 13 in Rochester, N.Y., Nancy Dominicos was at home texting on her cellphone when agents entered with guns pointed at her. Agents said they had a federal warrant to search the home for narcotics.

Dominicos, 59, said there was one glaring problem with the raid: Agents had the wrong house.

The house that agents had apparently been watching for a year was a couple of doors down and a different color, she said. The suspect was also a different race from Dominicos.

Dominicos asked how law officers could make such a mistake. She said she was told, “Well, it’s dark and the guys are amped up.”

Dominicos said she hasn’t had a public apology.

“If they can do that to me, they can do that to anybody,” she said. “There is no accountability whatsoever.”

But Douglas Leahey of Georgia, a retired senior ATF special agent and a former instructor at the Federal Enforcement Training Center in Georgia, said agents are dealing with the unknown when searching a home and have to take precautions, as was the case in New York.

“Mistakes happen. It’s terribly embarrassing,” he said.

He added that agents “strive not to do that. It doesn’t look good on the old annual evaluation.”

Leahey said that without more details in Aguilar’s shooting death in Arlington, he couldn’t make an informed comment. But he said that when he served search warrants, “You never know what’s behind the door.”

Leahey noted that sometimes police officers lose their lives just seeking to arrest someone for a misdemeanor offense. Officers “are shot and killed for what seem like mundane little things,” he said.

The Aguilars’ lawsuit seeks up to $2 million, which includes funeral expenses, according to court documents.

A judge ruled June 25 that the case would proceed, rejecting a government motion to dismiss it based on technicalities in the way the family made its claims.