EDINBURG, Texas (Legal Newsline) - The Texas Department of Public Safety can’t escape a lawsuit over an incident in which two undocumented immigrants were fatally shot in the bed of a speeding pickup from a police helicopter circling overhead.
The state waited too long to appeal an adverse decision by the trial judge rejecting its motion asserting sovereign immunity from suit, the 13th District Court of Appeals ruled in a Feb. 3 decision by Justice Gina M. Benavides. While “ultimately unsatisfying to both parties,” the appeals court said, it couldn’t exercise jurisdiction over the state’s interlocutory appeal of the trial judge’s refusal to dismiss the case.
Maria Luisa Mejia Sunic sued on behalf of the estates of Marcos Estrada and two minors after Marcos and a companion were fatally shot by a Texas DPS sniper riding in a helicopter overhead. The helicopter intercepted the truck the two men were riding in along the Mexican border and police officers said they thought there were illegal drugs stored in the bed under a tarp. The two men hiding under the tarp were killed in a volley of 19 rounds the sniper said he had aimed at the truck’s rear tire.
Texas first filed a plea with the trial court asserting it had no jurisdiction because of sovereign immunity. While the lawsuit named Texas DPS Director Steven McCraw and said it was seeking changes in the department’s use-of-force policy, Texas argued it was in fact a tort lawsuit barred by sovereign immunity.
Several years later, the state filed a motion to dismiss, citing evidence that emerged during discovery including statements by the officers in the helicopter. A pilot described how they were on patrol when they saw a cloud of dust from a speeding vehicle and that the tarp in the back “appeared to be covering something stacked higher towards the cab of the pickup.”
“To me that indicated that more than likely it was bundles of drugs,” the officer recalled. Concerned the truck was headed toward a school and might endanger children there, he authorized the sniper to disable the vehicle by shooting out its tires.
“We obviously did not want to shoot in an area that could contain cars, houses, and persons in the immediate vicinity,” he testified. “We could not wait to shoot until we were in a school zone.”
Texas argued that the troopers were entitled to official immunity because they acted in good faith when they decided to shoot. But the plaintiffs presented the report of an expert who said it wasn’t proper to fire at a moving vehicle from a helicopter just to stop it unless there were other justifications for using deadly force.
Texas also argued constitutional claims can only be made against a “person” and since the plaintiffs sued McCraw in his official capacity, they didn’t have a claim. The state also said it had changed its policy to prohibit shooting from a helicopter, eliminating any claim that the lawsuit was intended to force such a change in policy.
The appeals court said the state’s arguments were irrelevant since it should have appealed the judge’s first rejection of the sovereign immunity defense. The new evidence largely duplicated a videotape that was before the court early in the case, the appeals court ruled.