Said Bobbitt from his San Diego office Thursday afternoon: "It is a little-known thing called the First Amendment. They have the right to run their Web site as they see fit.
"The photograph is something of interest and was obtained legally. And even if it wasn't, the Border Patrol has no authority under federal law to police private Web sites," he said. "If I were to file a Freedom of Information Act I would be entitled to get that photo just as any citizen would. We have the right to oversee what is happening at the border, we being the public."
Hernandez added, "The issue here right now is (Border Patrol El Centro sector administrators) are violating our right to communicate freely without the fear of management intervention."
According to Border Patrol El Centro sector Assistant Chief Patrol Agent Randy Stickles, speaking through a public information officer Thursday, the issue is still under administrative review.
The Border Patrol had no further comment.
Why exactly Malpezzi would be targeted by Lopez or what kind of disciplinary action the agent could face wasn't clear this morning. Information also wasn't available on whether any other agents have been allegedly targeted by sector bosses.
Bobbitt said, "If they start trying to do an investigation into how the material was obtained they might target everyone in the agency."
When asked whether he has spoken to Lopez or any other Border Patrol officials regarding the photo, Bobbitt said no, adding, "If I talk to them I'll talk to them in court. … I would be surprised if their attorneys supported such an action by the Border Patrol to shut down that Web site."
Bobbitt and the union know how the photograph was obtained but opted not to divulge that information at this time.
Taken at 1:28 p.m. Jan. 4 near Border Patrol checkpoint 11 — also known as the Allison checkpoint — by an agency surveillance camera atop a pole near the All-American Canal east of Calexico, the photo shows two uniformed Mexican peace officers casually looking into the canal.
While the incursion by Mexican officials onto U.S. soil captured on film isn't of grave concern to Hernandez, what that photo represents, in light of recent disciplinary actions pending against two Border Patrol agents who allegedly entered into Mexico in July while pursuing undocumented immigrants, troubles the union.
"We're making an issue about this because of the alleged incursion by a couple of agents a few months ago while they were doing their jobs," Hernandez said.
"We think there's a double standard. The Mexican consulate made a big deal over this (July incident) and demanded some kind of action," he said. "Yet when their military or police cross into the United States illegally or make their own incursion nothing is done about it."
He added such incursions by officials on both sides of the U.S.-Mexico border happen and will continue to happen.
However, he said, "Our problem is whenever our agents cross into Mexican territory the consulate uses it as a political ploy. It's not that big of an issue, but they're making it an issue with law enforcement agencies in the United States and Mexico."
Hernandez added, "The current (Border Patrol El Centro) sector management at this point and time is controlled by the Mexican consulate. That's our view. This is not in the best interest of the American taxpayer and the public.
"They pay us to protect the borders and not make concessions to the Mexican government," Hernandez said.
The photo can be found online at www.delphi.com/local2554/messages in the national issues section.
Staff Writer Richard Montenegro can be reached at 337-3453.