Alan Cunningham, a PhD student at the University of Birmingham, explains possible routes for justice following three deaths at the US-Mexico border...
Immigration is one of the hottest hot button issues going into the 2024 US presidential election. It has divided Americans, and the Republican party continues to go to extremes on the matter, with some 81% of GOP voters in the Iowa primary agreeing with former president Donald Trump’s description of immigrants as “poisoning the blood of the country.”
Others throughout the US have increased their actions and rhetoric against immigrants. Republican governors of both Arizona and Florida have sent bus and planeloads of migrants from their states to Democrat-controlled states, bringing many legal problems and heightening a humanitarian crisis. Other governors have sent their own state national guards to the southern border, while GOP presidential nominees vie on the debate stage to determine who is tougher on immigration.
However, few have been more extreme than Texas governor Greg Abbott.
In addition to busing migrants out of the state, he has sent his own Army National Guard (ARNG), under control of the Texas Military Department (TMD), and state troopers (under the control of the Department of Public Safety’s Highway Patrol) to the border, where they are officially “tasked with aiding arrests for border-related crimes, including drug smuggling and human trafficking.” Members of the ARNG themselves have heavily criticized this policy as being counterproductive and pointless. Dubbed “Operation Lone Star,” this not only brought buoys affixed with saw blades to river channels and canals, concertina wire along the US-Mexico border, and an overall militarized presence that has harmed US-Mexico relations, but it also contributed to 30 deaths and over 70 injuries in just the first sixteen months.
Now, a new battle between Abbott and the US federal government over immigration policy and border security is taking place.
The Eagle Pass Incident
On Wednesday, January 10, the Texas ARNG and the Texas Department of Public Security (DPS) went to Eagle Pass, Texas, and overtook Shelby Park, a nearly 50-acre public space along the Rio Grande, and erected concertina wire and fencing and established a staging ground of sorts to continue their border mission. Eagle Pass mayor Rolando Salinas was not informed of the mission prior, did not request the presence of the national guards or DPS, and was informed by Abbott’s spokesperson that the state would hold the park indefinitely.
Abbott’s spokesperson gave a statement later, saying the state would “continue to deploy Texas National Guard soldiers, DPS troopers, and more barriers, utilizing every tool and strategy to respond to President Biden’s ongoing border crisis,” citing gubernatorial proclamation as legal justification of Abbott’s actions. It is worth noting that in June 2023, Mayor Salinas had agreed with DPS to make the park private property “so state DPS troopers could arrest migrants crossing there on charges of trespassing” yet rescinded this almost immediately after public backlash.
On January 12, the US Department of Justice (DOJ), in a court filing asking the Supreme Court to intervene in the matter, stated, “State officers and National Guard members also have denied Border Patrol agents entry to the park, where agents routinely used a boat ramp to launch their boats to patrol the Rio Grande [in addition to] a staging area at the park that Border Patrol agents use to inspect migrants who have been apprehended in this part of the border.”
Following this filing by the DOJ, it was initially reported that around 9:00 p.m. on the same night “a group of six migrants were in distress as they attempted to cross the Rio Grande River” and that US Border Patrol agents attempted to make contact with the state forces at Shelby Park but were blocked and prevented from doing so. The next morning, Mexican authorities pulled three bodies, one woman and two children, from the water near Shelby Park.
In the following days, some information was corrected, namely that the three individuals had drowned at 8:00 p.m. Mexican authorities contacted Border Patrol, informing them of two other migrants who were “in distress on the US side of the river in the area near the Shelby Park boat ramp.” According to Chief Patrol Agent Robert Danley, the head of the Del Rio Sector, which has operational control for all Border Patrol operations in Eagle Pass, he sent a supervisory agent to the Shelby Park staging ground after receiving no response from the state units via telephone. At this point:
The guardsmen said they had been ordered not to let Border Patrol through the gate or give agents access to the park. The Border Patrol supervisor asked to speak to a superior officer and the guardsmen called a staff sergeant on his cellphone and put them on speakerphone. The staff sergeant said the Border Patrol was not allowed to enter, even in emergencies, but that they would send a guardsman to look into the situation.
The Department of Homeland Security (DHS), which has authority over the Border Patrol through the Customs and Border Protection (CBP), seemed to confirm the account relayed by both the Border Patrol and elected officials. The DHS spokesperson stated that border agents were “physically barred by Texas officials from entering the area.”
The Texas Military Department responded that it had “actively searched the river with lights and night vision goggles” and found no migrants in distress. The situation between Texas and the federal government is currently ongoing, with no clear, effective resolution in sight.
A Case for Charging the Texas Army National Guard and Other Public Officials
This is a very serious allegation. If the Texas Army National Guard and the state troopers did indeed block Border Patrol agents from going to perform their duties, leading to the deaths of migrants, the ramifications of that, politically and legally, would be catastrophic. While a few have claimed (likely in a hyperbolic sense) that the Army National Guard and state troopers are an accessory to a murder, this is not in the realm of reality; proving murder or negligence in this case would be incredibly difficult.
There are multiple other criminal charges available to the federal government. To begin, 18 USC § 111 states:
Whoever forcibly assaults, resists, opposes, impedes, intimidates, or interferes with any person designated [as an officer or employee of the United States or of any agency in any branch of the United States Government] while engaged in or on account of the performance of official duties [shall] be fined under this title or imprisoned not more than one year.
Based on the currently available sworn statements made by federal law enforcement agents, it appears that the Texas Army National Guard did indeed impede and interfere with a federal operation and efforts. Its denial of Border Patrol did not result in the deaths of three people, but it did result in Border Patrol being unable to conduct its established mission and its official duties of protecting the US border.
Further, 18 USC § 1502 states, “Whoever knowingly and willfully obstructs, resists, or opposes an extradition agent of the United States in the execution of his duties, shall be fined under this title or imprisoned not more than one year, or both.” Similar to Section 111, this charge could be used in a supplementary way as Border Patrol agents are extradition agents per their federal mandate of working to enforce US immigration laws and securing American ports of entry, be they land or water. In short, this would serve to bolster an indictment against the intended ARNG personnel.
Now, in all likelihood, Sections 111 and 1502 would not apply to Governor Abbott or even other high-ranking members of the Texas Military Department or the Texas Department of Public Safety. This charge would likely be used against the most senior ranking individual on the ground at Shelby Park or the individual who gave the order to those standing guard to not allow Border Patrol to carry out their mission. (In this case, the staff sergeant and the individual soldiers at the Shelby Park entrance gate.)
Depending on how the Shelby Park operation was constructed, how the chain of command and authority was structured, and how involved the state’s executive branch was, the DOJ could file additional charges. According to 18 USC § 372:
If two or more persons in any State…conspire to prevent, by force, intimidation, or threat, any person from…discharging any duties thereof, or to induce by like means any officer of the United States to leave the place, where his duties as an officer are required to be performed…or while engaged in the lawful discharge thereof, or to injure his property so as to…impede him in the discharge of his official duties, each of such persons shall be fined under this title or imprisoned not more than six years, or both.
This charge of “conspiracy to impede or injure an officer,” could allow the DOJ to prosecute individuals of a higher rank and authority beyond those stationed at Shelby Park, provided they instituted or were aware of rules, orders, and provisions that explicitly indicated they were to deny the Border Patrol (or federal law enforcement as a whole) the ability to conduct operations in the area. It can be argued that, by choosing a public area where there was already a Border Patrol presence, the state government intended to deny access to border agents. Such a case would require eyewitness testimony, documentary evidence attesting to the fact, and other such relevant and authoritative evidence.
Furthermore, it is already public information that a Texas Army National Guard major informed federal agents and state troopers on Thursday (the day before the drownings) “that the Guard would no longer allow the state to transfer migrants to federal custody at that location and that Border Patrol agents would no longer be allowed to pick up migrants in the park and surrounding area,” strengthening the obstruction of justice charges. It is unknown at this time if this was a direct order from a higher authority within the TMD or Texas state government, but, considering the military’s chain of command, it is highly unlikely the major made this statement of his own accord.
While both of these criminal charges would in no way be a surefire conviction and would be a tough prosecution for even the most experienced legal team, I argue given the blatant disregard and disdain for federal norms and authority, the impediment this gives to US federal law enforcement legally carrying out their congressionally mandated duties, and the potential destructiveness such actions can bring to US and Mexico relations, the federal government should continue to press the Texas state government to cease such a military operation.
With such antagonism between state governors acting out of a political desire to shore up their own defenses ahead of the 2024 elections and a federal government trying to secure the border from threats while dealing with a humanitarian crisis, the battle over immigration will continue. Actions like these by Governor Abbott serve no meaningful purpose in resolving the immigration debate; they only serve to antagonize the federal government, make enemies among the local populace and elected officials, directly harm foreign relations, prevent law enforcement from carrying out its mandated mission, and, most seriously, put migrants who are fleeing from persecution and oppression at risk of death or serious injury.
Three people are dead, and it is the direct result of an ineffective border security policy begun out of political motivations by one of the country’s most politically extreme governors.
Alan Cunningham is a PhD student at the University of Birmingham’s Department of History. Any views, thoughts, opinions expressed are solely those of the author and does not reflect the views, opinions, or official standpoint of any of the author’s affiliations, including educational institutions and past & present employers.
Opinions expressed in JURIST Commentary are the sole responsibility of the author and do not necessarily reflect the views of JURIST's editors, staff, donors or the University of Pittsburgh.