The release of the photographs, which the judge ruled were public records, was first requested last December by Scott Stanley, publisher of the Tucson-based literary and political journal The Tucson Poet.
Pima County Medical Examiner Bruce Parks refused to hand over the photos, and when Stanley persisted, the Pima County Attorney's Office filed a lawsuit against Stanley. The lawsuit asked for a court ruling to nullify his request, along with unspecified court costs and punitive damages ("Border Censors," May 13).
Stanley set a precedent with his request. Never before had an Arizona periodical sought to print government photographs of Mexicans who died attempting to enter the United States. Stanley plans to publish the photographs in his next issue, which is to be distributed this week.
"Our intent is the same now as it was then: to make everyone a witness to these deaths," says Stanley. "Without the photographs, these people would be just another name in a newspaper article, if even that."
Pima County's lawsuit against Stanley was based on a threefold argument: First, the suit claimed the photographs were not public record.
Second, the suit argued that even if the photographs were public record, their release would violate the right to privacy of the deceased.
Finally, the lawsuit warned that if Stanley were successful, celebrities, politicians and prominent business people might be afraid to visit Tucson, knowing that if they died there in a manner which required an autopsy, photos of their bodies could be released to the public.
Therefore, the lawsuit argued, the state has a compelling interest to block Stanley from publishing the photos.
Pima County Superior Court Justice Nanette Warner was less than convinced.
In her September 3 decision, Warner ruled that the photos sought by Stanley were clearly public record, and described the celebrity protection argument as "purely speculative and insufficient to outweigh the presumption in favor of disclosure."
Warner ordered Pima County officials to make copies of the photographs available to Stanley and anyone else who wants them.
"There is a legitimate public interest in knowing the policies and practices of the U.S. Border Patrol and the I.N.S., which uses public funds for its activities, including its policies and practices aimed at stemming illegal entry into this country at the Mexican border," Warner opined.
"The old adage 'A picture is worth a thousand words' is applicable here. An autopsy report describes in medical terms the location, size, and entry and exit wounds of gun shots as well as other physical conditions. However, a photograph illustrates much more than the words of an autopsy report are able to convey."
One of the controversial photographs is of the body of Antonio Martinez, 26, who was killed by a Border Patrol officer on September 9, 1998. Martinez was shot once in the stomach and once in the back after he drunkenly threatened the officer with a rock. The incident occurred less than 100 yards north of the border, near the San Luis, Arizona, port of entry.
Martinez, who was 4-foot-11 and weighed 92 pounds, died as his 13-year-old brother, Pablo, watched from the Border Patrol officer's vehicle. Before Pablo was sent back to Mexico, he told Border Patrol officers he and his brother had traveled eight days from Guadalajara to get to the border. Their plan was to sneak across and make their way to Los Angeles.
More than 300 Mexicans were found dead on the U.S. side of the border last year. A few, like Martinez, were shot, but most died under assault from the elements.
Stanley says the photographs in The Tucson Poet will accompany interviews with undocumented immigrants who nearly died getting here, or who traveled with others who perished.
"If you collected photographs of all the people who died trying to get into the U.S. and put them on display, I think most people with any compassionate sensibilities would be horrified," Stanley says. "We're putting together one small glimpse of that horror."
Contact David Holthouse at his online address: [email protected]