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Retired Cop Says Border Patrol Assaulted Him

SAN DIEGO (CN) - Border Patrol agents assaulted and Maced a retired police officer, then arrested him on bogus charges of assaulting a federal agent, the retired cop claims in court.

Donald Lumb sued Border Patrol Agent Alejandro Martinez and his supervisor Pete Burgos on Friday in Federal Court.

"He used to like the Border Patrol before all this happened," Lumb's attorney Mary Prevost told Courthouse News in an interview.

Lumb worked for the Chula Vista Police Department for 15 years before retiring on medical disability. He spent four of those years the K-9 unit, and the department awarded him a gold pin for his work in auto theft, "making him an auto theft expert," attorney Prevost said in an email.

Lumb served with military police in Iraq for six months, two years with the California Army National Guard, and worked with the Border Patrol in Operation Jumpstart and Operation Gatekeeper, where he helped apprehend more than 1,500 undocumented people, Prevost said in the email.

Lumb says in his complaint that he and a "juvenile passenger" were traveling westbound toward the Interstate 8 checkpoint on the morning of Nov. 20, 2013 when Agent Martinez motioned for them to stop.

Prevost said the young man was Lumb's fiancée's son, whom Lumb was driving to school. He is not a party to the complaint.

Having anticipated the stop, Lumb had already rolled down his window and greeted Martinez with a smile and friendly "good morning," the complaint states. Lumb says Martinez stared angrily at him and demanded to know his citizenship and the citizenship of his passenger. He told told Martinez they were both U.S. citizens, but Martinez refused to let them go and "walked the perimeter of the car, peering into the windows, cargo area, and walking back around to Lumb," according to the complaint.

Feeling that Martinez was going to continue detaining him, Lumb says, he told the agent he was a retired cop and that he knew his rights, and asked to speak to a supervisor. When Supervisor Burgos got to the car, he said Martinez had done nothing wrong and directed Lumb drive to secondary inspection

Lumb parked and got out of the car and leaned against it, "with his hands at his sides," he says in the complaint.

It continues: "Supervisor Burgos began yelling at Lumb to get back in the vehicle. Lumb attempted to comply but as he placed his hand on the car door handle to open it - and without warning - he was sprayed with a chemical agent. Lumb was shoved from behind and slammed against the car, and then slammed to the ground. Approximately four to five sets of hands were grabbing at Lumb and one agent was kneeling on his back.

"Lumb began pleading that he wasn't resisting. The agent on his back (Doe 1) was screaming 'Shut up! Shut the fuck up!' The agents forced Lumb into a single set of handcuffs causing instant pain to Lumb's shoulder. Another agent was yelling for agents to take Lumb's watch, and another screamed, 'He's got a gun.' As this was happening, the agents were causing more pain to Lumb's wrist and shoulder by rolling him side to side on the ground."

While he was still on the ground, Lumb says, another agent poured water on his face, "causing the now dried chemical agent to run down his forehead and into his eyes, causing his eyes to swell shut almost instantly."

The agents dragged him to a bench and made him sit there for around 15 minutes before a supervisory agent helped him clean the chemical out of his eyes. Though Lumb explained what happened, the man refused to let him go, according to the complaint.

An hour and a half later, Lumb says, two plainclothes agents told him he was under arrest for assaulting a federal agent and resisting arrest. They drove him to the Pine Valley Border Patrol Station, where they took his shoes, wallet, and credentials, and put him in a holding cell.

Lumb says the agents denied his requests for a phone call and to speak to a supervisor all afternoon. They finally took him to a San Diego Sheriff's Station later evening, where he was fingerprinted and bailed out on $25,000 bond early the next morning.

The City of Chula Vista revoked Lumb's concealed carry permit because of the incident. At an administrative hearing on the matter, Burgos acknowledged that he was unsure whether Lumb had actually committed a crime or whether the Border Patrol had the authority to arrest him, according to the complaint.

The San Diego district attorney refused to prosecute him, and six months later his permit was restored, Lumb says.

"This case is really a dead-bang winner," attorney Prevost said. "They can't really defend it when their own sergeant testified under oath that they screwed up."

Lumb claims the Border Patrol has a history of falsely accusing people of crimes for exercising their First Amendment rights.

Burgos and the other supervisors who saw the incident should have realized that Lumb's detainment was unlawful, but instead of intervening they exacerbated the situation by endorsing Martinez's actions and refusing to release him, Lumb says in the complaint.

Slamming Lumb into the car, spraying the chemical in his face, and "manhandling" him "throughout the day" were all done without reasonable suspicion and thus constitute excessive force, the complaint states.

The Border Patrol did not respond to emailed requests for comment Monday afternoon.

Lumb seeks punitive damages for civil rights violations, retaliation, negligent supervision, excessive force and unlawful detainment.

Prevost's law office is in San Diego.

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