A federal magistrate judge declined to dismiss the case against a Department of Homeland Security officer charged with battering a Chinese tourist. Officer Robert Rhodes asked the court for dismissal in October, claiming the government was selectively prosecuting him because he is gay and had filed a discrimination complaint. In a ruling obtained Tuesday by The Buffalo News, Magistrate Judge Hugh Scott said Rhodes failed to show that prosecutors knew about his sexual orientation prior to his arrest. Witnesses said Rhodes, 43, used pepper spray on 37-year-old Zhao Yan, threw her against a wall, kneed her in the head as she knelt on the ground and struck her head on the ground while holding her hair. Attorney Steven Cohen said Rhodes was one of several Customs and Border Protection officers involved in subduing Zhao at the U.S.-Canadian border July 21 but that he alone was charged with violating her civil rights by causing bodily harm. The confrontation happened at the Rainbow Bridge connecting Niagara Falls, N.Y., and Niagara Falls, Ontario. Rhodes defended himself, saying Zhao and two other women ran when asked to come into the inspection station after officers confiscated marijuana from another pedestrian. He said he sprayed her with pepper spray as she swung her arms at him after he grabbed her and that he was scratched in the process. Cohen said Rhodes is appealing Scott's ruling. No trial date has been set. Rhodes faces up to 10 years in prison if convicted. [more] and [more]
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