Report on CBP agent border shooting: “Police don’t get to shoot someone in the back because they beat you up”

DOJ, FBI, the county Sheriff, the local CBP IA, and the Eagle Pass district attorney all ruled directly or by acquiesce that no prosecution of Poitevent was necessary based in part upon a controversial interpretation of state law allowing the initial investigation to be conducted by the Texas Rangers. Combined with a byzantine agency jurisdiction within the Department of Homeland Security, the CBP agent has never faced a trial by his peers.

While the case remains open at DOJ, Agent Poitevent continues to be employed by CBP agent along the Mexican border.

In a related set of events, this new CIR report arrives less than two months after James F. Tomscheck, former director of Internal Affairs at CBP, went public to charge his own agency with protecting its agents from criminal allegations including murder, corruption, and graft. (see Robert Lee Maril, “Former Head of Internal Affairs At CBP: Agency suffers from ‘institutional narcissism’; conducting its affairs beyond ‘constitutional constraints’,” HSNW, 2 September 2014).

Tomscheck, after eight years of leadership at CBP IA, was reassigned on the same day he was expected to testify before the Senate Oversight Committee (Arturo Garcia, “Rachel Maddow: What is the Border Patrol hiding inside its ‘black box’?” Raw Story, 12 June 2014).

Shortly after his reassignment to a CBP department of lesser import — the executive director for national programs — Tomscheck turned into a federal whistleblower.

In his allegations Tomscheck blamed the failure of CBP to investigate or prosecute its own CBP agents upon CBP leadership including David Aguilar, former deputy commissioner, and Alan Bersin, former commissioner of the CBP. Aguilar is now at the beltway consulting firm Global Security and Intelligence Strategies while Bersin is the acting assistant secretary for Policy at DHS.

Tomscheck also has alleged that when his IA unit completed investigations of possible crimes by CBP agents, this same CBP leadership repeatedly covered up all his departmental findings by consistently failing to act upon them and telling him to keep quiet.    

The new report released last Thursday by the Center for Investigative Research — also authored by Andrew Becker — relies on the available government documents in the public domain or gained through the Freedom of Information Act, more than sixty interviews, including local and federal law enforcement officers and retired officers, eye witnesses, family members of Mendez, and an analysis of other relevant data.

Mendez, an 18-year-old dropout with a long history of theft and drug use as a juvenile, had recently been convicted of his first felony. He was initially spotted with his 16-year old cousin Oscar Cazares while driving a truck loaded with drugs recently smuggled across the Rio Grande River. After Poitevent pursued the two in their vehicle, Poitevent ended up chasing down the larger Mendez; Cazares was arrested by other agents called to the scene.

The fight between Poitevent and Mendez played out in front of several eyewitnesses in different locations as Mendez struggled to escape. Poitevent was hurt by Mendez and eventually, after first stopping off at his CBP station, required documented hospital care. Mendez was unarmed while Poitevent, with just two years of experience as a CBP agent, carried a CBP standard issue, collapsible steel baton and a Heckler & Koch .40 caliber P2000 semi-automatic pistol.

As Mendez was once more able to escape Poitevent’s grasp during the fight, Poitevent shot Mendez, according to the report, from an estimated distance of fifteen to thirty feet away. One shot was in the back, the second in his side as he turned and fell to the ground.

Several witnesses, including testimony from CBP agents, stated that Poitevent began crying immediately after the shooting and told his CBP supervisor, Hector Nunez, that, “I had to shoot him. I thought he was coming back at me.” Eyewitnesses say Mendez was fleeing Poitevent at the time he was shot twice.

Family members and others, including law enforcement officers and retired law enforcement officers at all levels, are dissatisfied with the way in which the investigation was handled. Because of a controversial interpretation of Texas state law, jurisdiction over the case eventually fell to the Texas Rangers. Left out of the initial investigation were the local CBP IA, the county sheriff’s department, the city of Eagle Pass, the FBI, and the Department of Justice. By the time Ranger Coy Smith, who was receiving professional training and was not in Eagle Pass at the time of the shooting, arrived at the scene, CBP agents who preceded him had irrevocably contaminated the area.

Among Latino residents the Texas Rangers are almost uniformly despised and hated along the border because of the agency’s documented history of violence against local residents based upon race. In fact, the Rangers were disbanded by the Texas State Legislature because of documented atrocities against Latino residents prior to World War Two. Eventually the Texas Rangers were reconstituted and placed under supervision of the Texas State Department of Public Safety.

Even then Los Rinches, as they are called by border Latinos, earned the reputation among migrant farm workers as union busters in the 1960s and 1970s in south Texas by representing the best interests of local growers and ranchers. The Rangers worst actions are documented in multiple legal cases such as Medrano v. Allee, at which time Texas Ranger Captain Allee held the body of a suspected union member in front of a passing train (Robert Lee Maril, The Fence, 49)

Texas Ranger Coy Smith’s investigation completely exonerated Poitevent. Based upon the evidence Smith gathered, he firmly believed that the shooting was justified for one major reason: Poitevent feared for his life and for the welfare of the public should Mendez complete his escape.

Smith, according to the accepted procedures of his investigative duties as a Texas Ranger, never interviewed Poitevent.

Eventually, after the FBI, DOJ, the CBP IA, and the county sheriff’s department accepted Smith’s report, it fell upon the Eagle Pass district attorney to bring charges if he so desired. However, he declined to file charges against Poitevent or even call a grand jury, which is unusual in death cases.         

The former Maverick County, Texas sheriff, Thomas Herrera, remains doubtful of Poitevent’s innocence. Said Herrera, “Resisting arrest does not give an officer the right to kill someone.”

The Mendez family filed a civil law suit against Poitevent in 2013.

U.S. Representative Lucille Roybal-Allard (D-California) has called for an investigation into the twenty-eight deaths along the border since 2010 that directly involve CBP agents (Andrew Becker, “Lawmaker calls for new investigations into border agent fatal shootings,” Center for Investigative Research, 12 September 2014).

Robert Lee Maril, a professor of Sociology at East Carolina University, is the author o f The Fence: National Security, Public Safety, and Illegal Immigration along the U.S.-Mexico Border. He blogs at leemaril.com.