Border Patrol Agent entitled to qualified immunity after shooting fleeing suspect

Mendez v. Poitevent No. 15-50709 (5th Cir. June 2nd 2016)

This is a §1983/excessive force case where the 5th Circuit affirmed dismissal based on qualified immunity of the individual officer.

After receiving a radio report of smuggling near the Mexico border, Border Patrol Agent Taylor Poitevent pursued a suspect truck into a residential cul-de-sac, where the truck’s two passengers bailed out and began to run towards a fence. On the other side of the fence was the Rio Grande and border to Mexico. One passenger escaped over the fence, but Poitevent caught Mendez, who struggled against the arrest. The court went into great detail regarding the struggle. During the struggle Mendez —later revealed to be high on cocaine and marijuana— overpowered Poitevent, struck him in the temple causing severe disorientation (and later revealed a concussion). Believing his life was in danger Poitevent drew his pistol and fired two shots, killing Mendez. At the time Mendez was shot, he had run about 15 feet away from Poitevent after Agent Poitevent became disoriented. The Texas Rangers investigated the shooting and concluded that Poitevent “was clearly within his right to protect himself and others.” Mendez’s relatives sued Poitevent for excessive force, but the trial court granted Poitevent’s motion for qualified immunity. The court dismissed the United States as well for the tort claims.

The court analyzed the record and held an officer’s use of deadly force is not excessive, and thus no constitutional violation occurs, when the officer reasonably believes that the suspect poses a threat of serious harm to the officer or to others. This is an objective standard.  The court held a reasonable officer in Poitevent’s situation could have believed that Mendez posed a serious threat of harm. The court went through the detailed fight to show Mendez, as an aggressive opponent, “…had proven his dangerousness.” “…the question here is not, as plaintiffs assert, whether an officer violates the Fourth Amendment by shooting a suspect who is running away. Rather, it is whether an officer violates the Fourth Amendment by shooting a suspect who just fought the officer at length; disarmed him of his baton; prevented him from using his radio to call for backup; potentially attempted to obtain his gun; concussed and disoriented him; and broke free of his grasp; at the precise moment the officer’s vision is impaired and he fears losing consciousness—and the evidence indicates that it was not apparent to Poitevent that Mendez was running away.” Poitevent’s disorientation may have prevented him from discerning whether Mendez was fleeing, regrouping, going for dropped baton, or even whether Mendez was in fact running away.  As a result, the trial court properly granted Poitevent’s motion for qualified immunity. The court then held the United States was also properly dismissed.

To read the full opinion click here. Panel consists of Judges Jolly, Clement and Owen. Judge Clement issued the opinion.

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