Border Patrol agent seeks immunity from local court

DULUTH - In tears after running over a man on the Gunflint Trail last year, U.S. Border Patrol Agent Maranda Weber knelt on the pavement, trying in vain to revive the victim and repeating, "I didn't even see him," according to newly released police reports.

Weber, 28, appeared in court in connection with the accident for the first time Tuesday as her attorney argued to U.S. District Judge John Tunheim that she is entitled to immunity from local prosecution for 67-year-old Kenneth Peterson's death. The Border Patrol SUV that Weber was driving struck Peterson, a physician, on the night of Oct. 31, 2007, as he chainsawed a tree that had fallen onto the road.

A Cook County grand jury indicted Weber in April on misdemeanor charges of careless and inattentive driving. But she refused to appear in court there, instead filing a motion to have the case moved to U.S. District Court. Tunheim heard arguments on that motion Tuesday.

Weber's attorney, Paul Rogosheske of South St. Paul, argued that under federal law she is immune because she was on duty, was not at fault, and can't get fair treatment in Cook County because of local animosity toward the Border Patrol.

Border Patrol Agent Michael Pauly, who works in Grand Marais, testified that several times since the accident, residents have made derogatory remarks to him about the office, which grew from two agents to 15 after the Sept. 11, 2001, terrorist attacks. "Someone said, 'You guys think you have a license to kill in Cook County,'" Pauly testified. "I believe there is a definite anti-Border Patrol sentiment in Cook County."

County Attorney Timothy Scannell argued that the county has been more than fair to Weber, convening, for example, a grand jury for the first time in many years to consider whether to charge her.

Rogosheske argued that Weber is protected from prosecution for actions that were reasonable in the course of duty. He cited reports filed by Cook County deputies to bolster his contention that Weber couldn't avoid hitting Peterson, who had no flares, reflectors, or warning lights.

Deputy John Hughes wrote that he performed several tests by driving his own car toward the accident scene and concluded that, "I could not have seen the tree in time before running into the tree due to the headlights."

Deputy Julie Collman wrote that when she arrived, Weber, who had called-in the emergency, was doing chest compressions on Peterson and crying. "She told me, 'I came around the corner and saw bright headlights, so I dimmed my lights.'... She repeated to me several times that, 'I didn't even see him.' "

A state trooper who reconstructed the accident concluded that Weber should have been able to recognize the hazard in time and stop. David Daubert, an accident reconstruction expert hired by the defense, disputed that Tuesday, testifying, "The only thing [she] could see is headlights. ...We don't stop unless there's some reason to perceive a hazard."

Scannell argued that Weber should have known something was wrong because one of the cars was angled in the roadway, it was very windy, and she had assisted in removing another tree from the road that day.

Under Scannell's cross-examination, Daubert also said that "black box" sensors in Weber's vehicle showed her seat belt was unbuckled and that she didn't let up on the throttle until a split second before impact, despite having 10-12 seconds from the time she would have seen the headlights.

Larry Oakes • 1-800-266-9648