BISBEE — Attorneys prosecuting a U.S. Border Patrol agent charged with murdering an illegal immigrant near Naco say the Constitution does not provide immunity to Nicholas Corbett for exercising deadly force.

Meanwhile, the defense has filed a new motion to dismiss charges against Corbett because a pair of gloves worn by the slain man were never taken into evidence.

Corbett is charged with second-degree murder, manslaughter and negligent homicide against Francisco Dominguez-Rivera of Mexico. He is scheduled to go on trial starting Feb. 26.

Defense attorneys Sean Chapman and Jim Calle filed a motion Jan. 18 in U.S. District Court in Tucson asking Judge David Bury to dismiss the case. They stated Corbett was protected by the Supremacy Clause because he was working as a federal law enforcement officer.

“The Supremacy Clause of the U.S. Constitution provides immunity from state prosecution for federal agents who were acting under federal authority and whose actions were necessary and proper to carry out their law enforcement authority,” the motion says.

Prosecutors Tyrone Mitchell and Grant Woods filed a response to that motion Saturday saying that Supremacy Clause immunity is not applicable in this case.

“Agent Corbett is not entitled Supremacy Clause immunity, because the State of Arizona has established sufficient and overwhelming evidence in this case supporting genuine issues of material fact as to whether agent Corbett’s actions were necessary and proper to the performance of his official duties,” the motion says.

Corbett claims he killed Dominguez-Rivera out of self defense on Jan. 12, 2007. His attorneys say he fired his service-issued handgun from a distance of several feet because he believed Dominguez-Rivera was going to throw a rock at him.

But, prosecutors point out, Corbett’s story conflicts with autopsy findings, ballistics and gunshot residue tests performed by a criminalist. It also is contrary to the testimony of three witnesses.

Criminalist John Maciulla established through gunshot residue testing, as well as finding burnt fibers on the victim’s sweater, that Corbett shot Dominguez-Rivera at close range, with the nozzle of his handgun within 3 to 12 inches from the victim’s body. Also, the motion says, the autopsy shows Corbett was standing to the left and slightly to the rear of the victim at the time he fired his gun, not several feet away.

“Finally, the three illegal alien material witnesses, who were kneeling down at the time of the altercation, will testify that defendant did not shoot Francisco from several feet away, but rather, they will testify that Francisco was attempting to kneel down in a prone position at the time defendant aggressively approached Francisco and shot him in the chest,” the motion says.

On Sunday, the defense filed another motion to dismiss the case. This motion cites the state’s “intentional destruction of exculpatory evidence.” Chapman and Calle stated Cochise County Sheriff’s Office detectives failed to collect and preserve gloves that were worn by Dominguez-Rivera at the time of the shooting.

The detectives used the absence of dirt and abrasions on Dominguez-Rivera’s hands as evidence that he was not holding a rock, according to the motion. But, the defense attorneys stated, the gloves could have been tested for DNA to determine if Dominguez-Rivera had been wearing them. The gloves could also have been checked for debris to see if he had been holding a rock.

According to the motion, the detectives testified under oath at the preliminary hearing that Dominguez-Rivera’s gloves were collected from the scene and that the gloves were released to Dominguez-Rivera’s family.

“But, the state’s disclosure of evidence logs and chain of custody sheets do not mention the gloves, do not indicate they were taken into evidence and do not indicate they were released to Dominguez’s family,” the motion says.

Almost two weeks ago, the defense attorneys came to the Cochise County Sheriff’s Office in Bisbee to view the physical evidence. The gloves were not produced, and so they asked the detectives about them. The attorneys were told that the gloves were taken into evidence and then released to the family.

The defense attorneys also traveled to the scene of the incident to view the area and take photos. A pair of gloves were found at the scene. The gloves match the gloves photographed by a detective after the shooting.

The defense’s investigator called a Sheriff’s Office detective and asked her if she wanted to collect the evidence. The detective declined to do so and told the investigator he could collect the gloves, and he did.

“The defense now has evidence that suggests that the detectives left the gloves at the scene. But the gloves are now so weathered that the ability to gather DNA is no longer likely,” the motion says.

As of Monday evening, prosecutors Woods and Mitchell had not yet responded to the second motion to dismiss.