Attorney calls gassing of bystanders inevitable

But an attorney for most of the bystanders and demonstrators during the Elian Gonzalez raid calls the agents' tactics an "overreaction."

Associated Press
Published February 1, 2005

MIAMI - The tear-gassing of bystanders was "an unavoidable consequence" during the raid to seize Elian Gonzalez and doesn't warrant the government's paying damages to anyone who was injured, a Justice Department attorney said in closing arguments Monday.

Thirteen bystanders and demonstrators sued the government for $3.25-million, saying they were gassed by federal agents during the April 2000 raid to seize the then-6-year-old boy for return to his Cuban father. One said she was thrown to the ground and stepped on by agents in black riot gear.

U.S. District Judge K. Michael Moore, who heard the weeklong trial without a jury, asked whether it was reasonable to gas "otherwise innocent bystanders" who were not interfering with the 151-member raid team.

"Does the government take the position that that's just an unavoidable or inevitable consequence?" asked Moore, a director of the U.S. Marshals Service before becoming a judge. He called it "something of a core issue in this case."

Noting that the judge granted the government immunity on claims of excessive force by people who were on the Gonzalez property or who crossed police barricades, government attorney Steven Handler said, "There will be an unavoidable consequence of some innocent bystanders being sprayed with gas."

But attorney Michael Hurley, representing 12 bystanders, called the gassing "an overreaction" and argued that agents went beyond the raid plan, which called for the use of gas only after an order was given to repel "a mass breach" of demonstrators at a barricade. No order was given and there was no major breach.

Three neighbors testified that an agent gassed them without warning from 2 to 4 feet away as they stood alone in their fenced front yards. They said the agent said nothing to them except profanity.

"There is just no way to show that's a reasonable use of force," Hurley said.

Handler said the neighbors' recollections may be mistaken.

Attorney Larry Klayman, representing one bystander, said agents lied on the stand to protect themselves. "They wouldn't even admit to using profanity," Klayman said.

During the trial, Klayman said Immigration and Naturalization Service agents were "paying back the Cuban community" for the prolonged custody fight. He said then-Attorney General Janet Reno ordered the raid "following the instructions of the Cuban government."

The judge barred him from presenting evidence of anti-Cuban bias, calling it irrelevant.

The judge will issue his verdict after attorneys submit depositions from two government lawyers, which is expected to take at least two weeks.

Elian was rescued from the Atlantic Ocean on Thanksgiving Day 1999 after a shipwreck killed his mother and others trying to reach Florida by boat. The INS turned him over to his Miami cousin, great-uncle and great-aunt, but they balked at giving him back when the government decided he should go back to Cuba.

The Easter weekend raid snatched the boy from a bedroom closet April 22, 2000. Father and son headed home to instant celebrity and visits with Cuban President Fidel Castro.