Border Patrol whistle-blowers, feds close to a settlement

By Jonathon Shacat
Herald/Review
Published/Last Modified on Wednesday, Dec 24, 2008 - 05:12:08 am MST

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BISBEE — A resolution may be near for a lawsuit filed in federal court in Tucson in May in which two U.S. Border Patrol agents alleged the agency illegally retaliated against them for whistle-blowing.

Juan Curbelo and William Leafstone Jr., residents of Douglas, claimed officials unlawfully suspended their law enforcement authority because they publicly disclosed the practice of “shotgunning” traffic, or stopping vehicles without reasonable suspicion.

A hearing was scheduled for last Friday in U.S. District Court in Tucson regarding a motion filed in July seeking to dismiss the case. But attorneys for the plaintiffs and defendants jointly filed a motion last Thursday asking the court to postpone that date because “it appears the case may be resolved.” The hearing is now set for Feb. 2.

The defendants are Border Patrol Chief David Aguilar and Tucson Sector Chief Patrol Agent Robert Gilbert. On their behalf, the U.S. Attorney’s Office had requested the case be dismissed under the premise that the U.S. District Court does not have jurisdiction over the matter.

The motion to dismiss stated the alleged First Amendment rights violation falls under the Civil Service Reform Act. The act allows the Office of Special Counsel to investigate allegations of prohibited personnel practices, as well as review by the Merit Systems Protection Board.

The plaintiffs’ attorneys contended in a court filing in August that the U.S. District Court has jurisdiction to hear claims of constitutional violations.

They pointed out Curbelo and Leafstone filed complaints with the Office of Special Counsel in October 2007, but they were rejected. The agents filed another complaint in June, but a month later they were served with notices proposing to remove them from their employment.

But now there is a potential resolution to the case, according to information listed in the joint motion seeking to postpone last week’s hearing.

“In the administrative proceeding related to this matter, the agency served its decision letters on the plaintiffs today reducing the disciplinary actions against them. They will also be reinstated to their supervisory positions, which is the relief that they seek in this case,” states the document.

On Tuesday, Daniel Pochoda, legal director of the ACLU of Arizona, which is co-counsel for the plaintiffs, said the case may be settled on the basis of the agency’s acknowledgments.

Sandra Raynor, spokeswoman for the U.S. Attorney’s Office, on Tuesday said the attorneys for the plaintiffs and defendants will discuss the matter further during the Feb. 2 hearing in Tucson.

According to the lawsuit complaint, Border Patrol officials arrested Curbelo’s ex-wife in New Mexico in December of 2006 and charged her with possession of marijuana with intent to distribute. Agent Curbelo later obtained the incident report. He and Leafstone believed it contained inconsistencies that were an effort to cover up a lack of reasonable suspicion for stopping the vehicle.

Leafstone testified on behalf of Curbelo’s ex-wife at a suppression hearing in a court in New Mexico in August 2007 regarding the practice of shotgunning and other matters. A judge determined the traffic stop was not supported by evidence of reasonable suspicion.

Then, Gilbert reprimanded Curbelo and Leafstone because they had “divulged sensitive Border Patrol information,” states the complaint. They were assigned to a border-fence-building crew. Curbelo also temporarily served on facilities maintenance.

Herald/Review reporter Jonathon Shacat can be reached at 515-4693 or by e-mail at jonathon.shacat@bisbeereview.net.

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NFL wrote on Dec 29, 2008 3:07 PM:

" Seems thy were rather eager to come to her defense on the drug charge...Maybe she had a little dirt on the two agents? Policies or no, these two will get paid. I wouldn't want to work with either of them. "

keanolo wrote on Dec 26, 2008 5:02 PM:

" I hope the settlement doesn't involve returning these two traitorus malcontents back to their BP supervisory positions These two are apparently pro open borders, pro drug smuggling crooks who have disavowed their oaths to uphold the law. The BP and America doesn't need these two men working against the interests of the American people. "

Bobby wrote on Dec 26, 2008 3:15 PM:

" We must support the rank and file of the border patrol, not the leadership which is corrupt to the core, because it answers to Washington, which is also corrupt to the core. Americans, ACTUALLY I SHOULD SAY "SOME" AMERICANS, can no longer be fooled on border issues and the treasonous politicians ready to sell us out. "

Old Marine wrote on Dec 24, 2008 12:22 PM:

" Anyone that the ACLU (Anti-Christian Liberal Union) represents should be questionable. At least that has been my experience of this organization founded by a former Communist many years ago. "

Mae wrote on Dec 24, 2008 9:05 AM:

" who care why she was stopped if she had drugs in the car she is still guiltiy and should be punished. These two guys should be more concerned about enforcing the law than letting criminals like his ex wife go free. maybe they should not be Border Patrol "

seeing through the lies wrote on Dec 24, 2008 8:55 AM:

" Looks like someone else was retaliating ... hmmm, Curbelo? Even IF shotgunning was a practice, why would you reveal your Agency's intel? Don't send these two off to war, if they ever become POW's, the U.S. is screwed! "