Health

A rise in deadly border patrol chases renews concerns about accountability

Molix had
suffered head trauma after the SUV he was driving with nine immigrants in the
country illegally inside rolled over near Las Cruces, New Mexico, while Border
Patrol agents pursued him at speeds of up to 73 mph. He died Aug 15, nearly two
weeks after the crash; even by then, no one from the Border Patrol or any other
law enforcement or government agency had contacted his family.

The number
of migrants crossing the border illegally has soared, with the Border Patrol
recording the highest number of encounters in more than six decades in the
fiscal year that ended Sept 30. With the surge has come an increase in deaths
and injuries from high-speed chases by the Border Patrol, a trend that Customs
and Border Protection, which oversees the Border Patrol, attributes to a rise
in brazen smugglers trying to flee its agents.

From 2010 to
2019, high-speed chases by the Border Patrol resulted in an average of 3.5
deaths a year, according to the American Civil Liberties Union. In 2020, there
were 14 such deaths; in 2021, there were 21, the last on Christmas.

The agency
recorded more than 700 “use of force” incidents on or near the southern border
in the last fiscal year. Customs and Border Protection does not disclose how
many of those ended in death or how many high-speed chases take place each
year.

Crossing the
border without documentation or helping people do so is full of risk regardless
of the circumstances, and stopping such crossings — and the criminal activity
of smugglers — is central to the Border Patrol’s job. But the rising deaths
raise questions about how far the agency should go with pursuits of smugglers
and immigrants, and when and how agents should engage in high-speed chases.

Customs and
Border Protection has yet to provide Simms, a fifth-grade teacher in El Paso,
with an explanation of what happened to her son. She saw a news release it
issued two weeks after the crash; officials say it is not the agency’s
responsibility to explain. She said she understood that officials suspected her
son was involved in illegal activity, transporting immigrants entering the
country illegally.

“But that
doesn’t mean you have to die for it,” she said.

Customs and
Border Protection, which is part of the Department of Homeland Security, has a
policy stating that agents and officers can conduct high-speed chases when they
determine “that the law enforcement benefit and need for emergency driving
outweighs the immediate and potential danger created by such emergency
driving.” The ACLU argues that the policy, which the agency publicly disclosed
for the first time last month, gives agents too much discretion in determining
the risk to public safety.

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In a
statement to The New York Times, Alejandro N Mayorkas, secretary of homeland
security, said that while “CBP agents and officers risk their lives every day
to keep our communities safe,” the Homeland Security Department “owes the
public the fair, objective and transparent investigation of use-of-force
incidents to ensure that our highest standards are maintained and enforced.”

But
previously unreported documents and details of the crash that killed Molix shed
light on what critics say is a troubling pattern in which the Border Patrol
keeps its operations opaque, despite the rising human toll of aggressive
enforcement actions.

A High-Speed
Chase

Early Aug.
3, a Border Patrol agent saw an SUV traveling slowly just north of Las Cruces
with what appeared to be a heavy load, according to a report from the New
Mexico State Police.

When the SUV
swerved to avoid a Border Patrol checkpoint, on a lonely stretch of road about
70 miles north of the border, the agent and a colleague in a separate car
started chasing it. They pursued it for about 1 mile before one of them
“clipped the vehicle, and it rolled,” according to local emergency dispatch
records. Eight of the 10 passengers — people from Ecuador, Honduras, Guatemala
and El Salvador — were ejected. An Ecuadorean man later died.

The New
Mexico State Police was among the agencies that responded to the crash. Body
camera footage from a state police officer captured one of the Border Patrol
agents saying: “Our critical incident team is coming out. They’ll do all the
crime scene stuff — well, not crime scene, but critical incident scene.”

The agent
said that he and his colleague would give statements to the team, which it
would share with police.

Critical
incident teams are rarely mentioned by Customs and Border Protection or the Border
Patrol. There is no public description of the scope of their authority.

Luis
Miranda, a spokesman for Customs and Border Protection, said the teams consist
of “highly trained evidence collection experts” who gather and process evidence
for investigations, including inquiries into human smuggling and drug
trafficking. He also said the teams assist in investigations conducted by the
agency’s Office of Professional Responsibility, which looks into claims of
agent misconduct and is akin to internal affairs divisions of police
departments.

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Another
Homeland Security official, who was authorized to speak to a reporter about the
teams on the condition that the official’s name was not used, confirmed another
role they have: collecting evidence that could be used to protect a Border
Patrol agent and “help deal with potential liability issues,” such as a future
civil suit.

Andrea
Guerrero, who leads a community group in San Diego and has spent the past year
looking into critical incident teams and their work, said it was “an outright
conflict of interest” for the division charged with investigating possible
Border Patrol misconduct to rely on assistance from Border Patrol agents on the
teams. She has called on Congress to investigate and filed a complaint with the
Homeland Security Department.

Customs and
Border Protection officials said the El Paso sector’s critical incident team
merely helped with measurements for a reconstruction of the crash outside Las
Cruces; the Office of Professional Responsibility, they said, is investigating
the incident. Yet a member of the El Paso critical incident team reached out to
the state police in the days after the crash seeking the department’s full
report for its own Border Patrol administrative review, according to an email
released by the state police.

Few Public
Answers

Border
Patrol encounters that result in injury or death can be investigated by
multiple entities: the FBI, state and local law enforcement, the Homeland
Security Department’s inspector general or Office for Civil Rights and Civil
Liberties, and the Office of Professional Responsibility, where most such
incidents land for review. But the findings on individual cases are rarely
disclosed; such investigations tend to yield few public details beyond total numbers,
which show only a fraction result in some type of discipline.

An incident
in 2010 drew international attention and calls for change. A 42-year-old
Mexican caught entering the country illegally died after he was hogtied, beaten
and shocked with a Taser by Border Patrol agents. The Justice Department
declined to investigate, but more than a decade later, the case will be heard
this year by the Inter-American Commission on Human Rights court — an apparent
first for a person killed by a US law enforcement officer.

After the
man’s death, the Obama administration made changes to address a litany of
excessive force complaints against Border Patrol agents and bring more
transparency and accountability to Customs and Border Protection. An external
review of Customs and Border Protection’s use-of-force policy recommended
defining the authority and role of critical incident teams.

Chuck
Wexler, executive director of the Police Executive Research Forum, a nonprofit
policy and research organization that conducted the external review, said that
if his organisation had known more at the time about the team’s purpose, it
would have “raised red flags.” But instead of explaining what the teams did,
the agency cut any mention of them out of the use-of-force policy.

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In another
case brimming with questions, a Border Patrol agent in Nogales, Arizona, shot a
woman in the country illegally who was unarmed, Marisol García Alcántara, in
the head in June while she sat in the back seat of a car. A Nogales Police
Department report noted that the Border Patrol supervisor at the scene refused
to provide information to officers about what had happened in the lead-up to
the crash. The report also noted that a critical incident team arrived on the
scene.

García
Alcántara, a mother of three, was taken to a hospital in Tucson, where doctors
removed most of the bullet from her head. Three days later, she was discharged
and sent to an Immigration and Customs Enforcement detention center, where she
remained for 22 days before being deported to Mexico. She said she was never
interviewed by law enforcement; a Customs and Border Protection official said
the FBI was investigating.

Rep. Raúl M.
Grijalva of Arizona, a Democrat who represents Tucson, said García Alcántara’s
case raised questions about the “illegal practice” of the critical incident
teams which, he said, have no legal authorisation and escape the oversight of
Congress. Other lawmakers, too, are demanding answers.

Answers have
not come easily for Simms, who had overheard whispers about a car crash and the
Border Patrol while she sat by her son in the hospital.

Three days
after Molix died, Simms heard from Customs and Border Protection for the first
time. “We wanted to give our condolences to you and your family,” an
investigator with the Office of Professional Responsibility texted. “We also
needed to see if we could meet you to sign a medical release form for Mr. Erik
Anthony Molix.”

An ACLU
lawyer, Shaw Drake, pieced together the details of the crash using police
reports, body camera footage and records of emergency dispatch calls that he
obtained through public records requests.

Details of
the investigation into what Molix was doing that day remain under wraps.
Customs and Border Protection said that because Molix was not in Border Patrol
custody after he was admitted to the hospital, it was not obliged to notify his
family about his injuries.

© 2022 The
New York Times Company

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