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Migrant Justice: The rules of pursuit - Border Patrol car chase standards under scrutiny as deaths mount

By René Kladzyk

A silver SUV bolts through a series of red lights on Mesa Street near Downtown El Paso in a February video posted by the popular local Instagram account FitFam. Two U.S. Border Patrol vehicles follow closely behind, also running red lights on the thoroughfare.

Three days before that, on Feb. 23, a minivan with four migrants riding inside crashed into a roundabout in El Paso’s Upper Valley. Although the Border Patrol said they had not initiated a pursuit, they acknowledged that agents had attempted to pull over the vehicle.

Border Patrol car chases have been the subject of increasing scrutiny in recent months, amid a spike in deadly crashes, an increase in vehicular use-of-force incidents, and newly released information about U.S. Customs and Border Protection’s controversial Critical Incident Teams.

Immigrant advocates and federal lawmakers are raising alarms about how the agency defines what counts as a pursuit, how those pursuits are carried out and how they are investigated when things go badly.

“I just don’t see really when it would be justified for the Border Patrol to engage in a high-speed vehicle chase,” said Vicki Gaubeca, director of the Southern Border Communities Coalition, an immigrant advocacy nonprofit that tracks deaths and abuses linked to the Border Patrol.

“I don’t think that a civil violation of law — which is immigration law — is cause enough to chase someone. Particularly when there’s a risk of death,” she said.

U.S. Rep. Veronica Escobar, D- El Paso, recently joined other lawmakers in raising questions about Border Patrol pursuits. She signed a joint letter to CBP Commissioner Chris Magnus on April 4 calling for the agency to curtail the use of vehicle pursuits, update their vehicle pursuit policy and improve agency oversight.

But Valeria Morales, Border Patrol spokesperson for the El Paso sector, said high-speed chases by the Border Patrol are extremely rare. Smugglers will drive dangerously even when they aren’t being pursued, particularly because it’s often teenagers who are recruited as drivers, she said.

“Even when there is no pursuit, the drivers (of vehicles with migrants) still take off at a high rate of speed,” Morales said. “They’re just thinking, ‘I want to get away. I don’t want to be located.’”

Morales was involved in “about a couple” of vehicle pursuits when she worked in the field. She said agents typically will only initiate a pursuit when there are extreme exigent circumstances, such as murder, assault or an incursion (when a vehicle drives across the border from Mexico without stopping). But when asked if any of those exigent circumstances had prompted the pursuits she was in, she said no.

“Only because we weren’t in areas that were high traffic areas,” she said.

Among El Paso-area law enforcement, both the El Paso Police Department and the Sheriff’s Office have more rigorous standards than CBP for determining when officers can engage in a vehicle pursuit.

Even making a comparison between different law enforcement vehicle pursuit policies was impossible until recently, because CBP had declined to make their policy public for years despite calls from political leaders, immigrant advocates and media. Their vehicle pursuit policy was eventually made public in December 2021.

The rise in deadly crashes

In the early morning hours of June 25, 2020, a five-seat Chevrolet Cruze containing 10 people collided into a trailer at a bend in Paisano Drive known as the “deadly curve” in Downtown El Paso.

The Cruze ripped in half, the bottom half sliding underneath the trailer. Seven people died at the scene of blunt force head injury — including four El Paso teens — during the human smuggling attempt.

The Border Patrol denied that it was pursuing the vehicle at the time of the crash, though statements by witnesses, including two survivors of the crash, claimed otherwise.

The Cruze was traveling at 112 miles per hour five seconds before the crash, with Border Patrol vehicles 10 to 15 seconds behind it, according to the police report.

An El Paso police officer at the crash scene told police investigators that he “overheard several Border Patrol agents who were not identified informing one another that the vehicle pursuit had started on McNutt (Road) in Santa Teresa (New Mexico) and immediately stopped talking about the pursuit as they became aware that I was in the area.”

Nearly two years later, there are few public answers about investigations into the fatal crash, or whether it resulted in any repercussions for agents or policy changes.

CBP referred El Paso Matters to the Department of Justice for information about the incident investigation, but a DOJ spokesperson said they could not answer any questions because it is “pending litigation.”

Whether officially designated as a CBP pursuit or not, fatal encounters with the Border Patrol linked to car chases have spiked sharply in recent years. There were 23 vehicle pursuit deaths in 2021 linked to Border Patrol encounters, according to a tracker compiled by The American Civil Liberties Union.

Likewise, use-of-force incidents by Border Patrol agents involving vehicles are on the rise, up from 161 incidents in 2019 to 341 in 2021, according to CBP data.

Not all vehicle pursuits would necessarily be defined as a vehicular use-of-force incident, Morales said. Incidents that fall within the category include offensive driving techniques, the use of vehicle immobilization devices and the agency’s small boat interdiction program.

There is no specific El Paso sector data available that indicates how often Border Patrol vehicle pursuits take place, Morales said.

How the Border Patrol pursuit policy measures up

National law enforcement standards for when to engage in a vehicle pursuit have become increasingly stringent in recent years, as public safety concerns have outweighed any potential benefits of engaging in high speed chases, according to Chuck Wexler, executive director of the Washington, D.C.-based Police Executive Research Forum.

“What departments have come to realize is that really, the most important factor is the sanctity of human life,” Wexler said. “Meaning if the driver, the police officer or a third party dies, you really have to ask yourself, was this pursuit necessary?”

While many law enforcement departments are adopting strict standards that officers can only engage in chases if both a violent crime was committed and the vehicle poses an imminent threat to public safety, the Border Patrol’s threshold for agents to initiate a pursuit is vague.

Border Patrol agents can engage in vehicle pursuits when “the Officer/Agent determines that the law enforcement benefit and need for emergency driving outweighs the immediate and potential danger created by such emergency driving,” the policy reads.

In contrast, the El Paso County Sheriff’s Office pursuit policy specifies four factors, all of which must be in place in order for a deputy to pursue a vehicle: probable cause of a violent felony offense, a clear and immediate threat to public safety, the need for immediate apprehension outweighs the danger posed by a pursuit and the deputy’s authorization to use their vehicle’s emergency equipment.

A heavily redacted version of the El Paso Police Department’s vehicle pursuit policy, effective December 2021, also indicates a requirement that there be a clear and immediate threat posed by the vehicle in order to justify a pursuit.

Asked what would constitute a sufficient law enforcement benefit for Border Patrol to justify initiating a chase, Border Patrol spokesperson Morales said “hardly anything.”

“I would say 99% of Border Patrol encounters that may result in a pursuit (are) not worth the risk,” she said, emphasizing that agents often rely on local law enforcement on the ground and in the air to help locate the vehicle, making pursuit unnecessary. “The agents do a really good job of terminating the pursuits, even before the supervisors will tell the agents to terminate the pursuits.”

Shaw Drake, an attorney with the ACLU of Texas, criticized the amount of discretion the Border Patrol’s pursuit policy gives to individual agents.

“It provides no delineated lines to make clear when the agency can and cannot conduct these highly dangerous and increasingly deadly pursuits,” Drake said. “Particularly with the history of abuse that the Border Patrol has, you can’t have a policy that leaves so much discretion up to individual agents making decisions in the field that really are life and death, not only for the people that they’re pursuing in these chases, but also the local community.”

Wexler said his organization has concluded that having tangible thresholds for when officers can engage in a pursuit is important.

“Otherwise, there’s too much discretion and not enough supervision and accountability,” he said.

The murky investigation of Border Patrol pursuits

The way incidents involving potential wrongdoing by Border Patrol are investigated has also come under fire recently, with calls for greater transparency about the agency’s Critical Incident Teams.

The teams are special units created by the Border Patrol that participate in the investigation of incidents that could lead to criminal or civil liability for Border Patrol agents, such as use of force incidents and vehicle pursuits. CBP Commissioner Magnus described the teams as “highly trained evidence collection experts,” in a statement provided to El Paso Matters. He clarified that members of the teams do not lead investigations, but collect evidence.

A spokesperson for CBP’s Office of Professional Responsibility — the branch charged with investigating wrongdoing — declined to answer any questions related to how the teams are trained. Local CBP spokespeople also declined to answer questions about the teams, nor would they make any members of the El Paso sector Critical Incident Team available for an interview.

Congressional Democrats and immigrant advocates have argued that Border Patrol agents have no authority to participate in these investigations. Ten committee and subcommittee chairs in both the House and Senate requested an audit of the teams by the U.S. Government Accountability Office in January.

“Congress has not given Border Patrol agents the investigative authority to investigate these incidents,” said Gaubeca of the Southern Border Communities Coalition, adding “they can’t investigate themselves.”

The April letter signed by Escobar and other legislators calls for the critical incident teams to be suspended and banned from participating in investigations of deadly incidents. It also requests case reports, policies and an independent review of past cases to determine the legitimacy and authority of the teams.

“Over just the last two years the number of deaths resulting from Border Patrol vehicle pursuits have risen 11-fold,” the letter read. “Not holding agents accountable for misconduct or fully investigating cases of alleged misconduct is unacceptable.”