Fatal 2010 Border Patrol shooting comes under renewed scrutiny
After a U.S. Border Patrol agent in 2010 fatally shot a fleeing teenage drug smuggler twice in the back, a review by the Justice Department deemed the shooting death justified.
But now that conclusion has been called into question by law enforcement officials, some of whom suspect that the agent who shot the smuggler was coached on his version of events by an internal affairs investigator.
Just after 8:30 a.m. Oct. 5, 2010, Border Patrol Agent Taylor Poitevent, then 26, shot and killed Juan Mendez Jr., an 18-year-old U.S. citizen, after the two men had fought on a lawn in a residential area of Eagle Pass, Texas, a U.S.-Mexico border town southwest of San Antonio.
As Mendez lay dying a few feet away, Poitevent, then a two-year veteran of the agency, cried out, “They’re going to convict me,” according to witness accounts.
That never happened. No Border Patrol agent, including Poitevent, has been convicted or charged in any of the nearly 30 deaths at the hands of U.S. Customs and Border Protection employees since 2010.
In the years since Mendez died, however, investigators and an assistant U.S. attorney have turned their attention to the case.
An internal affairs agent for Customs and Border Protection, Luis Valderrama, recently was placed on administrative leave pending the outcome of an internal investigation into his involvement in the case, multiple sources told The Center for Investigative Reporting.
The renewed interest in Mendez’s shooting comes as members of Congress, immigrant advocates, the Mexican government and civil rights groups have criticized the Border Patrol and its parent agency, Customs and Border Protection, for a lack of transparency and accountability.
The removal of Customs and Border Protection’s chief internal affairs
officer in June was designed to smooth over this criticism, but it has exposed even more divisions among the multiple agencies investigating misconduct by Border Patrol agents and others.
The mother of another slain teenager, Jose Antonio Elena Rodriguez, sued the Border Patrol this week, alleging that unnamed agents violated his constitutional rights when the 16-year-old was shot 10 times in October 2012 while walking in Mexico near a border fence. A recent federal appeals court ruling allowed another lawsuit related to a similar cross-border shooting in 2010, involving a minor near El Paso, to move forward.
After the Eagle Pass shooting, investigators and federal agents had conflicting views on whether it was legitimate. An investigation conducted by the Texas Rangers and relied upon by the FBI and Department of Homeland Security inspector general’s office eventually cleared Poitevent of any wrongdoing, though it appears the agent never spoke to investigators.
The U.S. Justice Department and the local U.S. attorney’s office both declined to prosecute. The local district attorney’s office referred the matter back to the federal government, saying it couldn’t prosecute a Border Patrol agent under Texas state law. The Mendez family has sued Poitevent and other Border Patrol agents.
Meanwhile, local and federal law enforcement officials – including the then-sheriff for Maverick County, where Eagle Pass sits, and a high-ranking Customs and Border Protection internal affairs official in Washington – challenged the decisions to not seek prosecution and questioned the rigor of the Texas Rangers’ investigation.
“I don’t believe that shooting was justified,” Tomas Herrera, the former Maverick County sheriff, said in an interview last fall. “The agent didn’t need to shoot him.”
In the hours after the incident, top Border Patrol officials asserted that Poitevent’s actions amounted to “a good shoot.” James Wong, then the No. 2 internal affairs official at Customs and Border Protection, said he and others, including the recently ousted internal affairs chief, James F. Tomsheck, disagreed.
“That was almost the stock response to any Border Patrol shooting – it was a good shoot,” Wong said of the view held by senior Border Patrol officials. “We in internal affairs, recognizing the admissibility of spontaneous statements, doubted the conclusion of Border Patrol managers. It was just a totally different mindset.”
Tomsheck was reassigned in June from his role as the head of internal affairs, a post he’d held since 2006. He was accused of a lack of aggressiveness, but Wong and other former top officials at Customs and Border Protection and the FBI have disputed that claim.
Justice Department officials in Washington and San Antonio have declined to comment on the Mendez family lawsuit and the earlier investigation into the shooting because they say it remains open. The FBI has refused to release records for similar reasons.
Coy Smith, the now-retired Texas Ranger who led the investigation, said in an interview that Poitevent did nothing wrong. Steve McCraw, director of the Texas Department of Public Safety, which includes the rangers, declined an interview request.
Federal attorneys have argued in court that the facts are indisputable and that Poitevent can’t be sued because he was acting in his official capacity. Based on his statement, Poitevent had a reasonable fear for his or others’ safety, they argue.
Struggle ends in shooting
With his 15-year-old cousin as a passenger, Mendez had attempted to drive a white Ford pickup loaded with 320 pounds of marijuana, valued at $256,000, that had been ferried across the Rio Grande from Mexico. Poitevent chased the teenagers down a rural road in his patrol truck, then caught up to and ran down Mendez after the cousins jumped out of the pickup and attempted to evade arrest by hopping a fence.
As Poitevent ordered Mendez to submit, the two men repeatedly traded blows, according to witness accounts and a Texas Rangers investigation. Mendez fended off Poitevent’s chokehold and hit the agent on the side of his head, which caused Poitevent to stagger and may have disoriented him momentarily.
Slipping out of the agent’s grasp, Mendez again tried to run away. Poitevent felt he was losing consciousness, and, if he had, the smuggler could have grabbed his pistol. Fearing for his life, Poitevent drew his weapon, according to a statement filed in a U.S. district court in Texas. He fired twice, pausing between shots, and hit Mendez in the back and side.
Other agents soon arrived at the scene and took Poitevent first to the Border Patrol station and then later to a hospital, according to the Texas Rangers’ investigative report. He was treated for a bloody nose, concussion and “post-traumatic anxiety,” according to the report.
Mendez was taken to an area hospital, where he was pronounced dead soon after he was shot. The 18-year-old, who had a long criminal record as a juvenile, had just gotten out of jail about a month before on burglary charges. An autopsy report showed he had marijuana and cocaine in his system.
Valderrama, a veteran Border Patrol agent who had joined internal affairs, was one of the first agents on the scene, according to former supervisors. He later appeared at the hospital and had other contact with Poitevent, according to internal documents and current and former officials. He was not assigned to investigate the shooting.
After Poitevent’s statement for the civil lawsuit was filed in March 2013, an assistant U.S. attorney defending him began to interview internal affairs agents about inconsistent statements Poitevent had made. Did he first use a baton to strike Mendez to try to subdue him? Had someone coached the agent on what to say?
Customs and Border Protection’s Office of Internal Affairs pushed to place Valderrama on administrative leave in May after months of suspicion that he had coached Poitevent, sources said. The homeland security inspector general’s office soon opened an investigation into the allegation. A spokesman for the office declined to comment on the investigation, citing policy.
Poitevent, who was reassigned to another Border Patrol station in South Texas, did not respond to requests for comment made to family members. A Border Patrol union spokesman also declined to comment.
In an interview, Valderrama said: “I really believe in the mission, and I still support the mission” of the Border Patrol. He then referred a call to his supervisor, saying there were “some management issues going on.”
“I need to be careful,” he said.
Amid all of this, R. Gil Kerlikowske, commissioner of Customs and Border Protection, has pledged to make the agency more transparent in how it handles – and investigates – use of force.
In an interview last month, the commissioner said he was working to streamline the complicated oversight system that probes shootings. He added that he had called for a review of 67 violent incidents that were referenced in an outside review of the agency’s use-of-force policy. It is not known whether Mendez’s shooting death was one of those cases.
The reason the agency hadn’t reviewed some shootings to determine whether they were within policy was, in part, because it often had to wait until a criminal investigation was completed, which Kerlikowske said he hopes to change.
“You could be waiting literally several years before the criminal investigation was concluded,” he said. “It’s important that we run a parallel investigation. And that can be done.”
Reprinted by permission of The Center for Investigative Reporting.