This is the second of a three part WND series analyzing the appellate briefs filed in the case.

Ignacio Ramos and Jose Compean

Convicted Border Patrol agents Ignacio Ramos and Jose Compean are contending in an appeal of their prison sentences that their use of deadly force against a fleeing drug smuggler was justified because they believed he was armed and they feared for their lives.

WND already has reported the two allege they also were the victims of "overzealous" prosecution after their encounter with the drug smuggler in 2005.

The case revolved around the discharge of those shots, one of which injured Osvaldo Aldrete-Davila, an illegal Mexican alien who was fleeing back into Mexico after smuggling 750 pounds of marijuana into the U.S, because without those shots on Feb. 17, 2005, there would have been no case.

The crux of the U.S. Attorney Johnny Sutton's case, as presented by prosecutor Debra Kanof at trial, was to portray Aldrete-Davila as a victim, an innocent Mexican with no experience smuggling drugs who was pressed into this one incident because he lost his commercial driver's license in Mexico and needed money to buy medicine for his sick mother.

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Aldrete-Davila's arrest and indictment for the Oct. 2005 "second load" strongly suggest this version of events is fanciful. But from the character description at trial, Kanof argued to the jury that Aldrete-Davila was shot in the back by two rogue law enforcement officers, Ramos and Compean, who would not let Aldrete-Davila surrender, even though his hands were in the air.

Instead, Kanof argued, Compean sought to hit Aldrete-Davila with the butt of his shotgun and the two agents fired multiple rounds at him as he fled for his life back into Mexico.

The appellants' lawyers argue that the question turns on the reasonableness of the use of deadly force by Ramos and Compean.

If the discharge of their weapons was reasonable, the appellants' attorneys argue, Ramos and Compean were acting lawfully, within the scope of their duties as law enforcement officers.

The appellants' briefs cite Graham v. Connor, 490 U.S. 386 (1989) as establishing the starting point for the analysis of the reasonableness question.

The lawyers summarized four principles from this case, placing in bold their most important observations:

1. The "balancing of interests" requires careful attention to the facts and circumstances of each particular case, including the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight.

2. The "reasonableness" of a particular use of force must be judged from the perspective of a reasonable officer on the scene, "rather than the 20/20 vision of hindsight."

3. The "calculus of reasonableness" must embody allowance for the fact that police officers are often forced to make split-second judgments – in circumstances that are tense, uncertain, and rapidly evolving – about the amount of force that is necessary in a particular situation.

4. The "reasonableness" inquiry in an excessive force case is an objective one; the question is whether the officers' actions are "objectively reasonable" in light of the facts and circumstances confronting them, "without regard to their underlying intent or motivation."

The appellants' lawyers argue that much of the prosecution's case was aimed at showing Ramos and Compean "willfully" sought to harm Aldrete-Davila from "a bad purpose or evil motive," even though Graham v. Connor explicitly excluded intent or motivation from the analysis of reasonable force.

Next, the appellants' lawyers argue the prosecution shifted the burden of proof onto Ramos and Compean, demanding the law enforcement officers demonstrate they did not exercise unreasonable or unnecessary force under the facts and circumstances of Feb. 17, 2005.

"The actual burden of proof should have been placed on the Government to show, beyond a reasonable doubt, that no objectively reasonable officer would have acted" as Ramos and Compean did.

In other words, the lawyers argued that Judge Cardone at the trial should have informed the jury that before the jury could convict Ramos and Compean, the jury had to find and believe the amount of force used by Ramos and Compean was unreasonable or unnecessary under all the facts and circumstances facing the Border Patrol officers on Feb. 17, 2005.

The lawyers further argue it makes no legal difference if Ramos and Compean were mistaken in their belief deadly force was necessary, as long as that belief was reasonable as it appeared to the law enforcement officers at the time and considering the tense, uncertain and rapidly-evolving circumstances of their 17 minute-long encounter with Aldrete-Davila.

The appeal argues Ramos and Compean had reasonable cause to arrest Aldrete-Davila for smuggling drugs into the United States, because of the following sequence of events:

Compean observed Aldrete-Davila's van tripping sensors at a border location known to be used by drug smugglers. Aldrete-Davila led several Border Patrol officers though a high speed chase, as he sought to avoid arrest.

As the Border Patrol pursued Aldrete-Davila's van into Fabens, Texas, he engaged in reckless conduct in the attempt to avoid arrest.

During the chase, Aldrete-Davila ignored the Border Patrol cars with their flashing emergency lights signaling him to stop. He ran red lights, failed to stop at a stop sign and violated speed limits, as he headed the van back south to Mexico.

The "suspicion" of smuggling turned out to be correct, when the abandoned van was found to hold 750 pounds of marijuana with an estimated street value of $500,000.

Ramos and Compean also had reasonable cause to be concerned that drug smugglers would use violence to protect their drugs from seizure by police and to elude capture, the appeal argues.

Ramos and Compean both testified they saw and believed Davila had a gun or shiny object in his left hand as he was turning around toward the officers as he headed for the Rio Grande.

Compean testified that before he fired his weapon, he felt in fear for his life.

Ramos testified that coming out of the ditch, he heard what he thought was an exchange of shots and that he saw what he believed was a weapon in Davila's hand.

Medical evidence at the trial established Aldrete-Davila's wound involved a bullet entering his left buttocks, traversing his groin (such that subsequent surgery required installing a catheter), and settling in his right thigh.

The doctor at the trial testified that Aldrete-Davila's wound was consistent with his reaching his left hand back toward the officers in a bladed motion that would be consistent with pointing a weapon at the officers.

The appeal concludes the agents' use of deadly force was reasonable given the circumstances already established during their trial.

Moreover, the attorneys argue the prosecution failed to meet the burden of proof to demonstrate that the use of deadly force by Ramos and Compean was unreasonable and unnecessary, under the pressure of the split-second decisions the law enforcement officers had to make in their pursuit of what they had reasonable cause to believe was a lethally dangerous criminal, a fleeing drug smuggler recklessly avoiding arrest.

The prosecution during the trial worked to establish a "bad intent" on the part of the law enforcement officers, and has continued that work subsequent to the verdict.

In an excusive interview with WND on Jan. 19, Sutton said Ramos and Compean "shot 15 times at an unarmed, fleeing man."

"And instead of doing what every other agent does, namely to explain why they decided to use deadly force," Sutton continued, "these two agents instead decided to lie about it, cover it up, destroy the evidence, pick up all the shell casings and throw them away where we couldn't find them, destroy the crime scene and then file a false report."

But he did not address the issue raised by Graham v. Connor: Was it reasonable for Ramos and Compean to fire if they believed Aldrete-Davila was armed and their lives were in danger?

Sutton instead wanted to place the burden of proof on Ramos and Compean.

"I think that once a reasonable person learns the facts, that these two agents shot at an unarmed man 15 times, lied about it, covered it up, destroyed the evidence, destroyed the crime scene, and filed false reports," Sutton told WND, "I can't imagine that there's anybody who thinks that the prosecutor should just look the other way."

The appeal argues that misses the point.

Ramos raises the additional argument that he heard shots being discharged when he came upon the scene, and relied on the judgment of Compean to establish a reason to fire.

Since Ramos heard what he believed to be an exchange of shots prior to that point in time when he saw Davila with what he believed to be a weapon in his hand, there was no objectionably unreasonable use of force as a matter of law, Ramos' brief comments.

His brief also notes case law supports a decision Ramos might have made to use deadly force to stop Davila's reckless run for the border. In that pursuit, Ramos positioned his van behind Aldrete-Davila's, but he refused to stop, even for the law enforcement vehicle's flashing lights.

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