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One or more Santa Ana police officers committed a crime related to felony assault when they beat undocumented resident Edgar Vargas during his arrest in June, according to an FBI document reviewed by Voice of OC.
The FBI’s Oct. 21 certification allows Vargas, who the document says received multiple injuries to his head and body, to apply for a special visa reserved for crime victims who are cooperating with law enforcement.
“Evidence suggests that officers of the Santa Ana Police Department used excessive force upon arresting captioned victim,” the document states, when prompted to describe the crime under investigation.
Specifically, FBI officials checked “Felonious Assault” in a section of the document that says Vargas “is a victim of criminal activity involving or similar to violations of” federal, state or local criminal offenses. The document was signed under penalty of perjury.
“Photographs taken of the victim days after the incident show that the victim suffered injuries to his head, arms, legs and torso. The injuries include bruises, abrasions, and cuts,” the document states.
The June 20 arrest attracted national media attention after video footage was made public that showed the now 27-year-old Vargas place his hands up and lie face down in a front yard before police began repeatedly punching him, swinging a baton at his legs and shooting him with a Taser gun.
The police officers claimed self-defense, saying Vargas attacked them as they were responding to a burglary call in the central part of the city.
Prosecutors working for District Attorney Tony Rackauckas followed up by charging Vargas with multiple felonies, including battery upon a peace officer, inflicting great bodily harm, resisting a police officer, and unlawful tampering with a vehicle.
Then, in August, U.S. Immigration and Customs Enforcement (ICE) agents arrested Vargas while he was on his way to Orange County Superior Court to defend himself against the charges.
The case took another dramatic turn earlier this month when the FBI confirmed that a civil rights investigation had been opened into the police officers’ actions, and he was released from federal custody. The DA’s office followed up by dropping all the charges against Vargas except for attempted burglary.
It’s still unclear what type of legal action the U.S. Department of Justice will take.
If there’s sufficient evidence of a federal crime, such as civil rights violations, criminal charges could be brought against the officers. The specific federal crime under investigation is “Deprivation of rights under color of law,” according to the document.
Furthermore, if the Justice Department finds “a pattern or practice” by the police department that “systemically violates people’s rights,” they can file a lawsuit against the department itself.
Those suits often lead to a “consent decree,” or a court-enforced agreement to reform.
George Abbes, Vargas’ immigration attorney, said he was sent the FBI’s declaration late last week, and that it would be used in Vargas’ application to U.S. Citizenship and Immigration Services for the crime victim visa, known officially as a “U visa.”
“It is a certification by the FBI that Edgar was a victim of a felonious assault” and that the assault was his beating by the police, said Abbes, who held a news conference Tuesday with Spanish-language TV stations.
“It is the initial step in the U visa application. Without that certification you can’t proceed because the U visa process requires certification that” you’re victim of crime and are cooperating with authorities, said Abbes.
Abbes allowed a reporter to review the document, which had white-out covering the name of the “certifying official” and the signature on the final page, but he did not allow photos to be taken of it.
(Click here to read a blank version of the certification form.)
Voice of OC sent FBI representatives a description of the key elements of the certification document, seeking comment.
FBI spokeswoman Laura Eimiller declined to discuss it, citing an ongoing investigation. “Unfortunately, I’m unable to comment on the referenced documents or confirmations you’ve obtained from alternate sources,” Eimiller said in an email.
When contacted by Voice of OC, Santa Ana police spokesman Cpl. Anthony Bertagna said it was the first he had heard of the declaration, then declined comment, citing ongoing investigations by federal officials and Santa Ana police.
Several immigration reform activists said they were glad to hear about the FBI declaration.
“Sometimes some law enforcement agencies take a while to provide those documents. So yeah, it is surprising news for the FBI to acknowledge that he is a victim of a violent crime at the hands of police,” said Abraham Medina, the director of Santa Ana Boys and Men of Color.
Vargas’ public defender, Frank Bittar, who sent a letter to the FBI in August alleging civil rights violations, says his client is struggling after the beating and the weeks he spent in immigration detention.
“This whole thing’s been such a terrible ordeal. Edgar’s suffering right now. He’s just not doing very well mentally,” said Bittar.
Vargas’ mother says her son has changed dramatically since the beating.
“Before, he was happy. But after everything, he’s changed,” Olivia Arzate said in Spanish on Tuesday. “He just stays in his room. He doesn’t talk to people anymore.”
“We’re trying to get him some mental health treatment,” said Bittar.
You can reach Nick Gerda at ngerda@gmail.com, and follow him on Twitter: @nicholasgerda.