Border Patrol agent gets immunity after killing fleeing suspect

A Border Patrol agent who shot to death a fleeing suspect won’t face legal liability, the U.S. Court of Appeals for the Fifth Circuit announced last week. Mendez v. Poitevent, No. 15-50790, slip op. (5th Cir. May 19, 2016). Despite being clouded in controversy, the Fifth Circuit’s decision is crystal clear that the claims lodged by eighteen-year-old Juan Mendez’s family members won’t expose Border Patrol agent Taylor Poitevent to any legal repercussions.

As recounted in detail by the Fifth Circuit, here is what happened.

On October 5, 2010, Border Patrol Agent Taylor Poitevent, uniformed and on-duty in Eagle Pass, Texas, heard a report over his service radio of potential alien or narcotics traffic near the Mexican border. The report described several individuals returning across the Rio Grande and several others in a white, single-cab pickup truck speeding in the opposite direction. Knowing the area described in the report to be an area commonly used by smugglers, Poitevent drove his marked vehicle to a location where he could intercept the truck, and parked. A white, single-cab pickup truck accelerated past his marked vehicle—an action that Poitevent interpreted as an attempt to flee. He pursued the truck into a residential cul-de-sac, where the truck’s two passengers bailed out and began to run towards a fence. In response, Poitevent bailed out as well and chased them on foot, shouting for them to get on the ground. On the opposite side of the fence, not far, was the Rio Grande. One of the passengers was able to climb the fence and escape; the other was Juan Mendez, Jr., an 18-year-old U.S. citizen whom Poitevent caught up with at the fence. Mendez resisted, and a struggle ensued.

Poitevent attempted to subdue Mendez by striking Mendez’s thigh with his baton, but Mendez—later revealed to be high on cocaine and marijuana—continued to resist and to shove and hit Poitevent. Mendez also prevented Poitevent from radioing for help by pulling Poitevent’s radio away from his mouth each time he attempted to use it. At some point during the struggle, Poitevent noticed that the holster guard on his service pistol had come undone, and he later testified that he “believed that Mendez was attempting to grab [his] pistol.”

As the two tussled, several residents came out of their houses to see what was going on. Poitevent ordered them to go inside, but they remained outside.

Eventually, Mendez disarmed Poitevent of his baton. But Poitevent nevertheless brought Mendez to the ground, face-down, and struck him several more times while attempting to handcuff him. Mendez, however, managed to stand up with Poitevent on his back, so Poitevent put him in a chokehold.

Mendez slipped out of that hold and, as he did so, turned and struck Poitevent in the temple. Poitevent buckled, and later testified that he “saw black, felt weak, and feared that [he] was losing consciousness.” (Later that day, Poitevent was diagnosed with a concussion and related symptoms.) He also testified that “[d]ue to Mendez’s size advantage, strength, and aggression, as well as my exhaustion from the struggle, I feared losing consciousness and for my life,” and that he “perceived Mendez as a threat” who “would not pass on the opportunity to kill me if I were unconscious.” He reached out to grab Mendez by the belt, but again Mendez wriggled free. As Mendez was running towards the fence, Poitevent drew his service pistol and fired two shots, killing Mendez. According to Poitevent, he “stopped firing when [he] saw Mendez’s silhouette go down.” At the time Mendez was shot, he had run about 15 feet away from Poitevent, and both shots hit him.

The Texas Rangers investigated the shooting and concluded that Poitevent “was clearly within his right to protect himself and others.” Federal and state authorities both declined to prosecute Poitevent.

Id. at 1-3

Despite the Fifth Circuit’s suggestion, the local district attorney didn’t decline to prosecute because it felt Poitevent was blameless. Instead, the DA’s office reportedly concluded that it could not do so under state law. The local sheriff left little doubt about what he made of Poitevent’s actions: “I don’t believe that shooting was justified. The agent didn’t need to shoot him,” he said. The top two officials at the Customs and Border Protection’s internal affairs office questioned the soundness of the Texas Rangers’ investigation. And a Border Patrol internal affairs agent who was one of the first officials to arrive at the scene of the killing was eventually placed on administrative leave because he was suspected of having coached Poitevent about how to frame the incident. All of this is to say that the facts are certainly not smoothly in favor of Poitevent as the Fifth Circuit suggested.

Still, the Fifth Circuit concluded that Mendez’s family could not sustain an excessive force claim under the Fourth Amendment because they neither showed that Poitevent was “plainly incompetent” nor “knowingly violated the law,” the twin standard for such claims.

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