A lawyer for the government is urging a federal judge not to punish the Border Patrol for recording over videotapes of conditions at several Arizona detention centers.
In new court filings, Assistant Attorney General Sarah Fabian did not dispute that the agency no longer has many of the videos that were recorded since the lawsuit was filed. But she told U.S. District Court Judge David Bury there was no obligation to save them.
Fabian also acknowledged that some videos since Aug. 14 are no longer available despite Bury’s order that day to “not destroy or record over” any surveillance tapes of holding areas.
She said records are “being preserved to the fullest extent possible in light of technical challenges.” Fabian also told the judge there are “Herculean efforts to comply at great expense to the agency, both financially and in man hours.”
And in her court documents, she took specific issue with comments that Karen Tumlin of the National Immigration Law Center told Capitol Media Services last week that the price tag of preserving the evidence “is legally irrelevant.” Fabian told Bury that he should consider the cost in determining whether to punish the Border Patrol for what it did not preserve.
The stakes are critical for the government.
In complaining about the destruction of tapes, attorneys for the immigrant rights groups said the Border Patrol had a “reckless disregard” for its obligation to preserve evidence of what challengers contend are “inhumane” conditions in the facilities where those picked up by Border Patrol are held for what could be days.
More to the point, they contend that the fact the tapes are no longer available means that jurors who will decide the case should be told that they should presume what was on the videos would have proven the claims of those conditions.
The lawsuit filed in June claims that those who were detained were subject to freezing conditions, lack of medical care, unsanitary conditions and inadequate nutrition.
Tumlin said the filing of the lawsuit should have put Border Patrol on immediate notice it should preserve the videos it has. Fabian disagreed.
“Preserving the video surveillance footage that plaintiffs assert should have been preserved would have either (1) created security risks for thousands of Border Patrol agents as well as tens of thousands of aliens detained at Border Patrol stations in the Tucson sector, or (2) been unduly burdensome and expensive because the means of preservation in the manner Plaintiffs’ propose were physically and financially nonexistent.”
Anyway, Fabian argues, the videos are not necessary.
She pointed out to Bury that he has given challengers and their experts the opportunity to visit four of the sites – Casa Grande, Tucson, Nogales and Douglas – to see conditions for themselves. Anyway, Fabian said, there is footage of existing conditions at Border Patrol stations and, in some cases, even some video from prior to the complaint being filed in June.
“The missing video should not be presumed to provide evidence of conditions for which there is existing video,” Fabian told the judge, arguing against telling jurors they should presume that what’s missing would prove what challengers are claiming. And if nothing else, she said videos won’t help challengers prove some of their allegations, like freezing-cold temperatures or the adequacy of medical care.
The lawsuit, however, does allege other things that a video would show.
For example, it says none of those detained had access to a bed while confined.
“The vast majority of former detainees – including women detained with children – were forced to spend the night on a cold cement floor or a hard bench with no mattress and no bedding,” the lawsuit states.
Fabian also told the judge that challengers are wrong in believing that the existing videos will help prove their case. She said the Border Patrol and Department of Homeland Security “fully intend to use all available video footage to show that conditions at Border Patrol stations in the Tucson sector fully comply with the requirements of the Constitution.”
Bury has not yet set a date to hear arguments, either about whether the federal agencies should be sanctioned for the missing videos or the underlying claim of inhumane conditions.
One side issue is the breadth of the case and even whether it goes forward.
The lawsuit was filed on behalf of several individuals who told their own stories about conditions in the facilities. But challengers are seeking a court order demanding changes in conditions for those who may be detained at Border Patrol facilities “now or in the future … for one or more nights.”
Fabian pointed out that none of the named plaintiffs are currently in Border Patrol custody.
That, she said, makes their claims legally moot as there has been “no showing that they are reasonably likely to return to any Tucson Sector Border Patrol station.” Nor are they seeking financial damages for the conditions they allegedly endured during their stay.
At the same time, the government will fight any effort to allow the challengers to bring a class-action lawsuit on behalf of those who may be detained in the future.