Please contact me, or share my story with anyone that may be able to help me as my situation is urgent and my time very short!
Charles R. Berg - 1230 C.N. Perry Calexico, CA. 92231 - Crberg2@juno.com
As a medically retired firefighter from the City of Fresno Calif. I was injured in the line of duty, suffering injuries at a chemical factory fire. I have had to undergo over 5 major spinal surgeries and countless therapies and endless treatment for the chronic injuries and diseases that the chemical exposures and trauma caused. I have sought the services of medical professionals around the country over the last 10 years and was very lucky and blessed to find treatment and medications that have allowed me to live a somewhat functional life while living with the chronic pain.
In 2006, one of my doctors, a specialist in Arthritis and chronic pain suggested to me to consider living in a dry, warm climate to help ease the symptoms of arthritis. The blessing in this was that some of the best doctors of Arthritis practice in Palm Springs and San Diego California, and that I have friends and family in the area that were very happy to help me. The move and my pain relief became immediate and I fell into a very happy routine of living in the remote town of Calexico Calif. and traveling to see the specialist and physical therapists that were treating my injuries in Palm Springs, San Diego and Phoenix.
Out of necessity and because of the distances I travel to see the numerous medical specialists that treat me, I often need to plan on traveling and staying in local hotels for a few days to make myself available for the extensive tests and treatments needed over several days. Having numerous chronic injuries and illnesses also requires me to take the numerous medications I am prescribed on the trip with me. I had finally settled into my new home and had started to make the numerous trips to doctors and physical therapists and began to see marked improvements in my health. Very quickly I had become more active and lost over 50 pounds which I had gained over the years after my injury due to the pain and inactivity. The luck in finding the right doctors also resulted in a marked decrease in the number of prescription drugs I was taking; having to take only a few, specialized medications.
It was only within a few months of settling into my home and routine in Calexico California that my life was completely changed and my thoughts about this Countries attitude toward freedom and Civil Rights was shaken to its foundations. Because of my remote location, I need to travel to see the medical specialists that treat me, so that I can live in a healthier climate. Calexico is located right on the Mexican border in Southern Calif. within 40 miles of the Arizona border. Travel in any direction and its necessary to pass through several Inspection Stations along the way; California has its agricultural inspections stations, and the U.S. Border Patrol has its immigration check stations. I became accustom to the routine of passing through them, telling the officers and Agents that, “no, I do not have any fresh fruits or vegetables,” or “yes, I am a U.S. citizen.” This all seemed fine at the time, and although I found the waiting for over 30 min. to pass through to be an irritation, and the occasional accident in the dark by people not prepared for cars to be at a stop on the Highway, seemed only minor problems at the time. It was in Mid. 2006, around the month of August that everything changed.
I was scheduled for physical therapy in Palm Springs over the weekend. On any of these trips I would leave Friday evening and spend the weekend in a motel, returning home the evening of my doctors’ visit in order to help break up the long drive. When driving from Calexico to Palm Springs, there is a U.S. Border Patrol station on Hwy. 86 near the Salton Sea. Leaving on a Friday evening I was expecting some delays and left early because I had pre-tests scheduled, but this particular evening the line was several miles long and the wait nearly an hour. After waiting and moving up to the front, I noticed that Border Patrol Agents were using a dog or K-9 and were having it run around every vehicle. It became obvious to me that all the time they were taking to run the dog around the vehicles was what was causing the delay, but what came next was not so obvious. The K-9 was searching vehicles 4-5 back from the front of the line but when it got to me the dog and Agent stayed with my vehicle, and upon reaching the front I was stopped. The Agent directing traffic told me to pull over to the side, I started to inquire as to what was going on but was interrupted with a sharp command to, “PULL OVER NOW!!” I complied immediately and was followed by the K-9 and handler. I was told to get out of the vehicle and to present my I.D., all of which I did immediately. Every time I asked what was wrong I would be interrupted with shouts of “shut up” or commands to “sit down.” When agents began to search the vehicle and the dog jumped into my car, I stood up and said, “Wait a minute, do you have a warrant to do that?” I was immediately restrained and handcuffed. Agents explained to me that I was under arrest because the K-9 had alerted to my vehicle and they were searching for what it alerted to. I was taken inside and bodily searched; my clothing was checked and I was patted down. I was then taken outside and handcuffed to a bench while my vehicle was searched for over an hour. I was finally released after several hours, having been in custody, searched and restrained and finally sent on my way with no explanation as to what they were looking for or what they had done. After my release I attempted to ask the Agents questions but was told to leave or they would arrest me for trespassing and having been detained and harassed for hours, I was in no mood for more.
I arrived over 3 hours late in Palm Springs and missed all my pre-labs and tests; which had to be cancelled and I was told to come back the next week. I spent that night In Palm Springs and headed home the next morning. Upon my arrival back home, I noticed that every one of my prescriptions was missing. I immediately went to the Border Patrol station in Calexico to make a complaint. I was told by the Agent taking the complaint; Captain V. Vega that they were required to do so, that anything the K-9 alerts on must be taken and tested. I asked him if he would send me the results of the tests and he responded, “no records of these stops are made, and that any records that are made, are not public and must be subpoenaed by a judge” I told him that I was arrested and asked him if there were any charges filed against me. After a few minutes I was told that no charges were filed and that because I was not charged there were no records made. He also told me that while they were searching my vehicle that I was not under arrest and was free to go any time I chose to. When he learned that I was cuffed and unable to leave he stated that was the wrong thing for them to do, and that he would look into the circumstances. About a week after making my complaint, I returned to check the status of his investigation and to see if the medications that were taken from me would be returned. I was told that I would have to get a lawyer and subpoena the results of their investigation or to get my medications returned. I have yet to get my medications back, or the test results.
Being somewhat frightened by the events of that Friday, I was hesitant to go back the next week, but was somewhat assured by my complaint that it would not happen again. Fortunately a repeat of that Friday did not happen, in fact for the next 3 months I did not see a K-9 unit at the station and was beginning to forget about the incident of that evening completely; until my appointment with a cancer specialist in Phoenix Arizona in Dec. 2007. On the evening of Dec. 17 2007 I again packed for an emergency meeting with a cancer specialist in Phoenix Arizona. I had begun having unusual cardiac symptoms that were thought to be a result of a cancerous growth in my ascending Aorta. In fact my condition was such that my brother had driven down from Oregon to help me. Unfortunately, when the time came to travel to Phoenix, he had a family emergency and had to fly home, leaving his car for me to take to the doctors’ appointment.
I left late in the evening of December 16th taking Interstate 8 east. I reached the U.S. Border Patrol inspection station at about 2am the morning of the 17th: at that time the inspection station was located at mile 15 on I-8 in Arizona; (it has since been moved to mile 87 on I-8). I noticed that there was a K-9 standing on a platform between the 2 lanes of traffic moving through, sniffing all vehicles. When I reached the front of the line, I heard the K-9 “bark” and the agent told me to pull over to the inspection area. I did as he asked, not wanting a repeat of the California incident. I was told to get out of the car and explained to the Agents what happened to me in California and that I was taking pain medications and that the K-9 was probably alerting to them. I showed them my medical information and doctors notes stating what kinds of medications they were.
After sitting and watching them pull everything out of the car for over an hour, the agents opened my suitcase and took out the medication I was taking. I feel it’s important to mention that I am talking about prescription medications that are legal anywhere in the country; like Hydrocodone, Vicodin and Suboxone; it was these legal prescriptions that were taken and are being taken in these inspections. The Agents explained to me that they were going to take and test the medications and I began to see another scenario where I would have to miss another long distance doctor’s appointment because the Border Patrol took my prescriptions; so I actively resisted. I was then arrested and cuffed and held in a caged unit inside the building for several hours, every one of my requests for medical help being ignored. After about 3 hours a Yuma sheriffs’ officer arrived, officer Martinez, and read me my rights and stated that I was under arrest. This seemed strange to me as after he read me my rights he left and Agent Mendoza, the Border Patrol on duty supervisor, took me to the Yuma jail and booked me in himself.
I did not stop asking for medical help the entire time I was in the custody of the Border Patrol, Yuma Sheriffs or jail guards, (as I suffer from chronic pain and was having serious cardiac problems at the time), but was not allowed to see a doctor, or given any medical aid; despite my injuries and medical history. I do not know if it was because Agent Mendoza booked me, or if it is their policy, but from the time of my being stopped by the Border Patrol until I was finally released 3 days later, I was not allowed to make any phone calls; I was unable to call family to tell them where I was and was not allowed to call and arrange bail. It was only because the doctors called after I missed my appointment that my family and friends came looking for me and found me in the Yuma jail.
I spent the next 3 weeks in Arizona, banned from leaving Arizona by Judge Mark Wayne Reeves and warned of this ruling by the Yuma county public defenders office. In my efforts to get back home and fight these charges I called and asked the courts to have a public defender help me file the necessary papers to allow me to go back home. I was told that it would take several weeks before they could appoint an attorney to me, but that I could; “hire one myself, or act as my own attorney and just plead guilt which would resolve the case and allow me to return home.” After 3 week I was finally appointed James Smith as my public defender who filed the necessary documents and judge Reeves finally made the orders allowing me to go home. I later found out that because I paid full bail I was free to leave and did not need an order allowing me to do so; but the judge still issued a ruling that I not be allowed to leave Arizona until the case was resolved, then reversed the order 3 weeks later with another ruling (documents were also generated, showing just a small part of the harassment I had to undergo over the next 2 years).
Because of the delay in providing me with a public defender, and because of the judges’ orders, I did not learn of the charges against me for over 2 months, when Mr. Smith finally arranged to meet with me. When I read the police and grand jury reports, and what I was being charged with I was shocked. The report stated that Sergeant Mendoza was the K-9 officer (Mendoza was actually the station supervisor that evening and had no part in searching my vehicle or handling the K-9); and that I was being charged with possession of Illegal narcotics, illegal brandishing and possession of a handgun and possession of marijuana. When I read the grand jury report, I was also shocked to learn that the Yuma County Sheriff officer that read me my rights and then left was called to testify as a witness to the grand jury and testified that when I was arrested there was a hand gun “on him”. Officer Martinez was only there for a few minutes, arrived 3 hours after the incident and left immediately, yet he was the only witness allowed to testify to the grand jury. Because of Arizona law, I only had a week to challenge the findings of the grand jury, but because of Arizona and the Yuma County public defenders office policy, I wasn’t appointed an attorney for over 3 weeks and he did not meet with me for another 2 months to discuss the charges.
THE LEGAL CLIMATE
My first meeting with public defender James T. Smith was disappointing at best. I was presented with a plan of appeasing the courts by pleading guilty as soon as possible. I was somewhat angry with his attitude that I must be guilty and because of the “ask for mercy strategy” he had planned; but being a victim and not a criminal I told him what was going on and the truth of that evening. I also explained to him what had happened in California the months earlier, and the truth of what happened in Yuma. I was told to come back in a few weeks and that he would do some research and send me some documents outlining his plan of defense. I received the plan and documents that he had been working on about 2 weeks after our first meeting. In his legal research he quoted legal president from the 1800’s allowing searches without warrant by the border patrol; issues that dealt more with the importing of products from foreign countries than with personal 4th amendment protection or searching vehicles along the Interstate. It was again obvious to me that something was wrong! Why is my attorney not interested in the truth? I told him I had evidence, gave him information as to how and where to gather video evidence of the truth, but was told that the Border Patrol refused to release any video evidence, and my attorney refused to subpoena them. It was now becoming obvious to me that something was very wrong. I demanded another meeting with Mr. Smith and told him to prepare a defense for me; that I wanted to go to trial.
I worked very hard the next few months trying to gather support. I wrote and complained about my situation to Senator Barbara Boxer, Senator John McCain: who was campaigning for president at the time, Governor Janice K. Brewer and Assemblyman V. Manuel Perez. All of whom responded and did varied things. Through my complaints the border patrol inspection station was moved from the western edge of Yuma County over 60 miles away to the Eastern edge of Yuma County @mile 87 to avoid the appearance of interfering with interstate commerce. But the most unfortunate issue I was dealing with was that because I was charged with criminal actions in Arizona, there was nothing they could, or would do to help me with my complaints about the Border Patrol. I though this to be reasonable at the time, until their legal investigators informed me of the truth.
LEGAL INVESTIGATION
I am not a wealthy person and am on a fixed retirement income and am unable to work so I don’t have a lot of money to spend on legal aid and investigation and was very much in need of the help of the public defenders office in Yuma Arizona. I am very grateful for the legal work done for free on my behalf, unfortunately none of it from Yuma or Arizona. Were it not for the gracious help I was given by legal researchers in California I would have been forced into pleading guilty. Arizona immigration laws and their public defenders offices are questionable at best. According to Public defender James T. Smith, public defenders cannot be held responsible for mounting a poor defense, and that all Yuma county public defenders are instructed to advise their clients arrested by the Border Patrol to have them “take a plea,” and that he was told not to mount a defense for me. He later apologized to me that he could not defend me and that he felt his position was so bad, and that because he would no longer do this for Yuma County, he quit his job as a Yuma County Public Defender! I was subsequently appointed another 4 Public defenders over the next year, all of whom refused to mount a defense: another was disbarred.
The most shocking part of what I learned in the research that was done for me is the policies of the U.S. Border Patrol!! It is the policy of the U.S. Border Patrol to NOT prosecute those persons stopped at these stations. To not allow a criminal investigation into the true nature of the way the Border Patrol is operating these stations. There is a huge gray area that exists in 4th amendment rights and the U.S. Border Patrol’s right to violate it. In fact, this is what has occurred. SINCE 2005, NOT ONE PERSONE ARRESTED AT A BORDER PATROL INSPECTION STATIONS HAS BEEN ALLOWED, OR HAVE RECEIVED A TRIAL; every case, including the well known ones (rapper Lil Wayne and Pastor David Anderson; who what seen being tazzed at the same Yuma border patrol station; on CNN. Tazzed while refusing to be searched), have either been dismissed on a technicality, or the person plead guilty. After fighting the charges against me for over 2 years, I was finally scheduled for a trial to start the first of March 2010 and learned from my legal investigators 3 weeks before the trial was to start that I was not going to receive a trial any why, that the Border Patrol will do something to prevent their witnesses from appearing or lose all the evidence, forcing a mistrial. Upon being informed of this practice, and what to expect I again contacted my local representative; Assemblyman V. Manuel Perez and told him that I feared I would also be denied my right to a trial by a jury of my peers. Mr. Perez stated to me that he had a great concern about a politician interfering in criminal matters and how that might look, but agreed to write the judge in my case, Judge Mark Wayne Reeves, and advised him of what we were told. The letter basically stated:” Mr. Berg and his legal team have learned that the U.S. Border patrol may be making efforts to deny a trial and to please see through these efforts and force them to produce witnesses and to mount a fair trial.”
The time for the trial had finally arrived and started on aTuesday, the first part of March, 2010. The first 4 hours were taken by jury selection and Judge Reeves reading the letter from Assembly member Perez. Judge Reeves was extremely upset about the letter and felt that it was inappropriate and stated that if the letter was prompted from any of my actions, or if it happened again that it would be detrimental to my case. After returning from lunch all the prospective jurors were dismissed and Judge Reeves announced that the Border Patrol had re-assigned a witness in my case, Sergeant Mendoza, and that he could not testify: that the Border Patrol reassigned him to special duty in Washington D.C. making him unavailable. Judge Reeves then ruled that the Border Patrol should be allowed 2 weeks to get their witness back in to testify, and rescheduled a new trial and another jury selection to take place in two weeks. I immediately notified Assemblyman V. Manuel Perez and told him what had occurred, he thanked me and stated that if they continue to delay the trial or suppress witnesses or evidence that there was nothing he could do anyway; except be a witness himself to affirm the truth should an investigation ever be mounted.
I was called the weekend before the second trial and jury selection was to begin and told that instead of arriving in court Tuesday morning that the judge wanted to meet that Monday evening, a day early. I arrived in court that Monday evening to learn that the Yuma County Sheriff; officer Martinez (who testified to the grand jury that I had a gun on me), was activated for active duty in the U. S. Military and would be gone indefinitely! He was not asked, but Judge Reeves stated that he could find no conspiracy in these events and that he was forced to delay the trial indefinitely: ruling that the case be “dismissed without prejudice.” This ruling basically means that the case can be opened and I can be tried any time Yuma wants to reopen the case.
LEGAL CLIMATE
With almost 6 years of practice searching vehicles in violation of the 4th amendment, the U.S. Border patrol’s policies and practices have become common knowledge within the legal community. Public defenders in Yuma Arizona know, and are instructed not to defend anyone arrested at the Border Patrol stations. The public defenders talk to their friends about legal matters, and it has become common knowledge within the legal community, that the Border Patrol conducts itself in this manner; withholding witnesses or evidence to prevent a trial. That no one has received a trial. Because of the lack of legal action Agents of the border patrol violate civil rights without consequences and because of the lack of legal intervention after a complaint. Border Patrol Agents now demand these searches and often use force to remove vehicle occupants; despite demands “not to search” by those who know that their rights are being violated. Upon learning that my public defenders were instructed not to help me, I went on a search for legal assistance and ultimately went through 5 public defenders.
I attempted to enlist the assistance of any lawyer allowed to practice in Arizona and was given the same response by every one when I told them that I wanted to go to trial and not allow any efforts to dismiss the case; “you will never get a trial, the judge will dismiss the case eventually.” This common knowledge about what the legal outcome in these cases will be has created a huge windfall for private lawyers and Yuma County. Public defenders know they don’t have to do any work defending these cases and often take on private cases at huge fees. Private attorneys, knowing they only need file some motion or another to get their client off, charge tens of thousands of dollars and boast they can guarantee that if you “go with their help,” they can get the charges dropped. THE UNFORTUNATE TRUTH IN THESE PRACTICES IT THAT REAL CRIMINALS ARRESTED AT THESE INSPECTION STATIONS ARE BEING RELEASED; FOR THE SAME REASON; THE BORDER PATROL VIOLATES THE 4TH AMENDMENT IN THESE SEARCHES AND ANY EVIDENCE GATHERED IS INADMISSABLE ANYWAY!!
WHAT’S HAPPENING NOW
In the last few months since my trial was postponed the situation with the Border Patrol inspections has gotten worse. I still live in Calexico, and continue to have medical problems that require me to travel. I still need to travel to Palm Springs and San Diego at least twice a month. Because I know that my medication will be taken by the Border Patrol, I can no longer go on extended stays because I cannot bring my medications with me. It is an extreme burden to drive the 3 hundred round trip miles but if I don’t drive round trip in one day, I end up going days without any of my prescriptions because the Border Patrol takes them. Unfortunately, I can do nothing about the scents that are left behind. Despite the fact that I have been forced to travel without my meds, I am still stopped and searched by the Border Patrol. The last incident sending me to the hospital: as I was forced to sit outside in the hot desert sun for over an hour. My doctor says that pain meds are often excreted through sweat, and the K-9 could alert on that. I have returned numerous times to make complaints to the Border Patrol station in Calexico and to write and complain to the Department of Justice and my local politicians.
I am now facing the real probability of being forced from my home. Every government agency or officer I contact is unable to help because they feel they cannot involve their office in police or criminal matters and the Agencies that can help have refused to do so; often in violation of laws and civil liberties. So it seems that the bottom line for me is; “polices and practices of the government that I serve, and gave my health for are forcing me out of my home and hastening my deterioration by preventing my access to the doctors and medications I need.” I have found it impossible to continue with the medical treatments I need because of the confiscation of my medications and the dangerous treatment I receive while being searched at these Border Patrol inspection stations; and may be forced to move out of the area that has been the healthiest for me: and out of my home!
I can only attempt to continue to ask for help from agencies like the Americans with Disabilities Act or to write any politician or organization that will help me.
STATEMENT OF COMPLAINT TO THE ADA
THE FOLLOWING IS MY FORMAL COMPLAINT AGAINST THE U.S. BORDER PATROL, AND THEIR POLICIES AND ACTIONS AT THE INSPECTION STATIONS LOCATED ALONG ROADS AND HIGHWAYS WITHIN THE UNITED STATES, SPECIFICALLY THOSE ALONG I-8 IN CAL. AND AZ., AND ON HWY 86 IN CA. THAT THEY ARE DISCRIMINATORY AGAINST PERSONS WITH DISSABILITIES.
#1: That policies and methods of detection at these stops targets and discriminates against Americans with disabilities who take Narcotic or radiometric meds. That these searches are not random and specifically target and discriminate against Americans with Disabilities and that Border Patrol policies unreasonably target these individuals through their methods of detection and that those stopped undergo searches requiring hours of delays and the confiscation of their legal medications.
#2: That the Border Patrol demands vehicles be emptied of passengers and contents while being searched; and that because these stops are long term and mandatory for everyone, it makes areas like this public access; yet handicapped access is unavailable. Persons left waiting in the inspection area are required to turn off their vehicles and site outside, often in the direct sun. Temperatures within the vehicles during the summer time of year reach limits over 145 degrees and when finally allowed to exit the vehicle these people are not allowed access to wheelchairs or walkers, bathroom facilities or water until after the search is complete and then told to leave the station immediately. Disabled patients requiring wheelchairs and walking devices are denied these, the Border Patrol requiring all items remain in the vehicle; leaving them without the ability to move from the spot they are placed and in danger; should an emergency or the hot sun demand it.
#3: Agents working at these check stations are not trained to deal with medical emergencies. These stations are often remote, located in the desert and people are forced to wait for hours while they are searched, searches being mandatory. Whenever patients with medications that alert the K-9 pass through and be searched have a need for those medications, or an auto accident occurs in traffic, there is no one available or trained in dealing with these situations.
#4: These inspection stations are located along public access roads, and do not cross any borders or pass into private or restrictive areas but their locations are public access and being remote make any preparation for these searches impossible. The Border Patrol is dealing with the public in an area of public access, but does not provide proper accommodation or access to those with disabilities, and many persons are not prepared to have to sit and wait the hours required to finish a search that they don’t bring their medical equipment with them, then realize they don’t have it and cant get it because of the situation.
#5: That the U.S. Border Patrol conducts searches at their inspection stations located on Interstate 8 in California and Arizona, and Hwy. 86 in California, using K-9 dogs to sniff for “Narcotics”, and that because of their policy to confiscate and test these drugs persons with legitimate, legal prescriptions lose them and that this practice targets and discriminates against those persons with disabilities requiring the use of Narcotics or Nuclear reactive cancer medications.
REQUEST
Through this complaint, it is my request that the policy and use of detection equipment that singles out and discriminates against Americans with Disabilities who also take Narcotic or radiometric medications, be removed; specifically the use of K-9 dogs. That these policies single out and harm persons with disabilities because their legal medications are taken and because they must endure harsh treatment while being searched, and that these search stations do not provide the necessary facilities and do not comply with the access requirement stated in the Americans with Disabilities Act.
K-9 units specifically, cannot distinguish differences between what is legal or illegal and so only those persons taking Narcotics or radiometric medications are targeted. And that once stopped have no access to facilities such as bathrooms and drinking fountains, due to the complete absence of them.
I am requesting that the use of K-9 dogs and other methods of detection that do not make a definitive identification be removed and disallowed as an excuse by policy to search vehicles passing through these stations. There are dangers to persons with disabilities sitting in a hot car, and that covered and cooled areas to stop and search vehicles with the appropriate handicapped facilities are completely absent. I would also ask that those persons unable to walk or require assistance are given the help they need by trained personnel and that they are allowed to wait in an inside, cool waiting area with access to proper facilities with ramps and access to drinking water, and that they are allowed access to their medical equipment.
Thank you,
Charles R. Berg
1230 C.N. Perry Calexico, CA. 92231 - Crberg2@juno.com
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