Border Patrol Agents “Taser” Man at 62/180 Checkpoint – Motorist Told Agents He Was Armed, Refused to Show Hands, Border Patrol Says
Agents at the Hwy. 62/180 Border Patrol checkpoint in Hudspeth County shot an elderly Central Texas man with a Taser last Wednesday, Jan. 28. Border Patrol officials said the man refused to answer questions about his citizenship or to move his vehicle into the checkpoint’s secondary inspection lane – and that he “advised agents that he had a firearm.”
The man will face federal charges, Border Patrol officials said.
The encounter began in the early afternoon. The man and his wife entered the checkpoint hauling a travel trailer, and the man refused to answer an agent’s question about his citizenship, Ramiro Cordero, the acting assistant chief patrol agent for the Border Patrol’s El Paso Sector, said. The man also “advised the agent that he was armed,” Cordero said.
The Border Patrol agent asked the man to move his vehicle into a secondary inspection lane, Cordero said, but the man refused. Agents then attempted to remove the man from his vehicle, and the man “became resistant and combative,” Cordero said. Having informed the agents that he was armed, the man “refused to keep his hands where we could see them,” Cordero said.
An agent shot the man with a Taser. The electroshock weapon fires two small, dart-like electrodes, and the electrodes then deliver a current powerful enough to incapacitate a victim.
Cordero said that given the man’s lack of cooperation, and the risk posed by the presence of a firearm, the agents had acted appropriately.
“We have a job to do and rules to enforce,” Cordero said, “and I can assure you that our agents did the right thing.”
Border Patrol officials would not identify the man by name, but said that he and his wife were “an older couple from the Austin area.” Emergency responders described the man as “elderly.”
A medical responder is required to remove the Taser electrodes, and a volunteer with Desert Haven Volunteer Fire & Rescue reportedly answered the call. The man also complained of chest pains – but he then determined he did not require medical attention. Hudspeth County sheriff’s deputies traveled to the checkpoint, but did not take the man into custody.
Though the man was not arrested, agents held the man and his wife at the checkpoint for a number of hours – reportedly into the evening, when the man again complained of chest pains. An ambulance from El Paso transported him to a hospital, Cordero said.
Cordero said the U.S. Attorney’s office will prosecute the man for “assaulting, resisting, or impeding” a federal officer, a felony offense that carries a potential prison term of up to eight years.
Though the Border Patrol has operated them for decades, the internal checkpoints have become something a flashpoint in recent years. Both immigrant-rights groups and libertarian activists have criticized and opposed the checkpoints, which subject motorists well within U.S. borders to immigration questioning and possible detention.
Videos of people refusing to answer citizenship or other questions, or, in some cases, to pull into a secondary inspection lane, have circulated widely on the Internet. Some critics say the checkpoints and Border Patrol questioning violate the Fourth Amendment of the Constitution, which prohibits unreasonable searches and seizures.
A 1976 Supreme Court decision found that checkpoints on public highways leading to or away from the U.S.-Mexico border are not a violation of the Fourth Amendment. And Congress has given agents the authority to conduct searches within a “reasonable distance” of the border, which the Department of Homeland Security defines as within 100 miles. But a motorist’s legal standing to refuse to answer citizenship questions remains contested, as does the question of how long agents can detain an uncooperative motorist.
Cordero said that the internal checkpoints are “authorized by court cases,” that motorists “do have to answer the questions” and that agents have the right to detain motorists “until they establish their citizenship.” He said that, in the El Paso Sector, agents handle uncooperative motorists on a “case-by-case basis.”
He said that, in some cases, agents become familiar with a motorist who has repeatedly refused to answer questions and, having established that the individual is a U.S. citizen, will “wave the person through rather than get into an argument.” Sometimes markings on a vehicle will identify an uncooperative driver as a member of the military, and agents may call a military base to confirm the individual’s citizenship.
Cordero said sometimes agents can enter a license-plate number into an agency database to establish the driver’s citizenship. He said that agents typically seek to “de-escalate situations,” and to keep traffic moving. But he said that, in encountering motorists who refuse to answer, agents “can detain them there, as long as needed, whatever is a reasonable time for us to conduct investigation.
“If you don’t want to tell me, your three-hour trip will turn into a four-hour trip,” Cordero said. “I’m going to find out your citizenship.”
He said last week’s incident involving the tasering was “a different case” – because the individual’s repeated statement that he had a weapon was “a red light.”
“It’s more than just his unwillingness to cooperate,” Cordero said. “When in fact he tells us he has a weapon, and he refuses to show us his hands, it turns more into a safety issue.”
Denise Gilman, co-director of the immigration clinic at the University of Texas School of Law, said case law has affirmed agents’ authority to operate internal checkpoints and “ask basic citizenship questions.” But she said motorists “can’t be compelled” to answer the questions. And she questioned agents’ authority to detain uncooperative motorists for an extended period of time.
She said agents “probably do have the authority” to detain motorists for a brief period, as they attempt to establish citizenship. However, if a motorists is held for a longer period, the detention becomes an arrest, she said, for which agents would need probable cause. Refusing to answer citizenship questions does not constitute probable cause for arrest.
Gilman said she believed about a half an hour should be the longest agents can detain a motorist without probable cause for arrest. But she said the legal rights of motorists at internal checkpoints are “not completely clear.”
“It’s never been fully tested,” Gilman said. “Usually when people refuse to answer, it becomes a game of chicken. It’s relatively recently people have been testing the extent to which they can refuse.”
She said a situation in which a motorist informed agents he or she was armed and then refused to show his or her hands was a unique case, which likely provide legal justification for the more aggressive action by agents at the 62/180 checkpoint.