In the village of Varituc el Carmen in Guatemala’s highlands, Maria Maura is raising three children without a father. There’s not much time for dwelling on the past, only survival. The military has repeatedly cordoned off their community and placed it under quarantine because of the high rate of Covid-19 infections. Villagers can’t get to the market or to their fields to cultivate crops, which means constant hunger.
Not far away, another widow, Maria Luisa, set out from the village of Pachay las Lomas to find work. She has yet to return. Her two daughters, the oldest just 12, don’t know how to reach her, according to their grandfather. They never got much time with their father; they were babies when he died. But he also left so that they would have a better life and food on the table.
Nearly a decade has passed since the women’s husbands, Jose Leonardo Coj Cumar, 32, and Marcos Castro Estrada, 29, were fatally shot on the Texas-Mexico border by a state police marksman in a helicopter.
Since the shooting, Stacy Holland has been promoted to assistant chief pilot, overseeing DPS’s aviation division, and Mike Avila is now a lieutenant pilot.
It was a warm afternoon in October 2012. After crossing the Rio Grande near the Texas border city of Peñitas, Castro Estrada, Coj Cumar, and four other Guatemalan men hid under a black tarp in the back of a red Ford F-150 truck. Three more men were crammed into the cab with a 14-year-old driver. Both Castro Estrada and Coj Cumar had construction jobs waiting for them in New Jersey. They planned to work for a couple of years to pay off their debts, then return home and buy plots of land.
Two game wardens encountered the red pickup and began a high-speed pursuit after the driver failed to signal a right turn. The Texas Department of Public Safety chopper joined in soon thereafter as the truck sped east, turning onto an unpaved ranch road called Sevenmile.
The doctrine of sovereign immunity makes it nearly impossible for non-citizens to hold police officers accountable in wrongful death lawsuits.
Within minutes, DPS marksman Miguel “Mike” Avila opened fire from the helicopter, trying to shoot out the truck’s rear tires. Avila peppered the truck with at least 19 bullets. Almost none of them hit the tires, instead piercing the sides and back of the pickup bed, killing Coj Cumar and Castro Estrada, who were lying near each other under the tarp. Castro Estrada’s brother-in-law, Vitalino Hernandez, was also shot in the shoulder and back but survived.
For a few weeks, the shooting was national news. The discovery that DPS allowed its troopers to shoot out the tires of moving vehicles from helicopters surprised both local and state leaders. No other domestic law enforcement agency in the country allowed its officers to fire at vehicles from above to end a pursuit, especially one based on a minor traffic violation.
In a deposition, Avila said he had no real-life training in shooting at moving targets from a helicopter. He had only received classroom training before he shot 19 times at the truck.
Avila, Capt. Stacy Holland, and Lt. Johnny Prince, who was piloting the helicopter, said they believed that the truck was carrying drugs under the tarp. They also cited the safety of children at a nearby elementary school as justification for opening fire to disable the speeding pickup truck. After the shooting, Steve McCraw, the longtime director of DPS, told legislators that he was a “firm believer that they did exactly what they thought they needed to do” and that it was “consistent with the Texas penal code.” In 2013, a grand jury in Hidalgo County, where the shooting occurred, declined to indict Avila.
Since the shooting, DPS has spent years fighting a wrongful death lawsuit filed by the widows of Coj Cumar and Castro Estrada. The agency’s lawyers have delayed and appealed so many times that the case has been nearly forgotten. Meanwhile, Holland has been promoted to assistant chief pilot, overseeing DPS’s aviation division, and Avila is now a lieutenant pilot. In 2016, Prince retired from DPS.
The families have little chance of prevailing, legal experts say. Sovereign immunity — derived from the British common law concept that the king is above reproach — shields police and government agencies from most wrongful or negligent death lawsuits.
Despite these odds, Justin Smith, an East Texas attorney who “doesn’t speak a lick of Spanish,” as he put it, has spent seven years trying to get the Indigenous Mayan families their day in a Texas court. The lawsuit is currently awaiting a decision in the Texas 13th District Court of Appeals in Corpus Christi on whether it can go to trial.
Avila may have been carrying a personal handgun in addition to his service weapon. DPS policy allows officers to carry their own weapons if it's been approved by supervisors.
Much about the shooting is still a mystery. But court depositions taken in 2016 from the three officers involved, which Smith provided to The Intercept and Type Investigations, reveal disturbing new findings. Avila, the officer who shot the men, had never fired from a helicopter at a moving vehicle before and might have used his own gun in addition to his service weapon. And DPS troopers had been shooting at vehicles from helicopters since at least 2011, which was unveiled publicly for the first time during a cable TV show.
DPS declined to comment on the lawsuit or the incident despite repeated requests from The Intercept and Type Investigations. In response to a public records request seeking information on any recent shootings involving helicopters at the border, DPS obtained an opinion by the Texas attorney general that releasing the information would “interfere with law enforcement.” The three officers involved in the shooting did not respond to requests for comment.
“This should be a high-profile case,” said David Henderson, a Texas civil rights attorney who specializes in police brutality and misconduct cases. “You had a policy that was going to lead to people being killed. And let’s be honest, DPS patrols the border, and they know that sometimes there are people in the backs of these trucks, and they still created this policy allowing troopers to fire at vehicles.”
Militarizing the Border
Hours before the shooting, the troopers had escorted a VIP border tour for Texas officials. Texas has spent more than $5 billion in the last decade on spy planes, machine-gun boats, military-grade weaponry, and National Guard and DPS “surges” on the border.
In 2015, I wrote about the helicopter shooting after a multiyear battle with DPS and Hidalgo County over the release of video footage from the helicopter and other evidence from a Texas Rangers investigation into the incident. McCraw never explained why the agency created a policy allowing its officers to shoot out the tires of moving vehicles from a helicopter. And Republican leaders who control the Texas Legislature and governor’s mansion didn’t ask for answers.
“It’s unfortunate some people died,” said then-state Rep. Sid Miller, a Republican, after the shooting. At the time, Miller led the legislative committee overseeing DPS; he is now Texas’s commissioner of agriculture. “But I guess the lesson is: Don’t be running from the law. So there will be no hearing.”
That DPS would start shooting at vehicles from helicopters along the border was the predictable outcome of an aggressive militarization program that began in 2005, spurred by former Gov. Rick Perry’s bid for reelection and his desire to create a Texas-style homeland security agency from which to campaign for an eventual bid for the White House.
In the last decade, Texas has spent more than $5 billion on spy planes, machine-gun boats, military-grade weaponry, and National Guard and DPS “surges” on the border. The “boots on the ground” strategy, as Perry often called it, has since become a tried-and-true campaign tactic with Republican political hopefuls, who don flak jackets to tour the Rio Grande on DPS machine-gun boats during election season. The current Republican governor, Greg Abbott, who is running for reelection in 2022 and now pondering a presidential run himself, recently flooded the Texas border with out-of-state police and National Guard members and announced that he would spend millions of dollars building a border wall.
But back in 2010, the strategy was still in its infancy, and Perry was anxious to debut his bristling new Texas homeland security apparatus at the border. DPS hired former Navy SEAL Chris Kyle of “American Sniper” fame and his security company Craft International to train some troopers to shoot from helicopters. (In 2013, Kyle was killed on a Texas firing range by a former Marine with PTSD.)
DPS also went all in on cable TV, granting five camera crews unfettered access to film for six months in its helicopters and patrol cars along the border for a Discovery Channel show called “Texas Drug Wars.”
“We’re not going to give up 1 square inch of this territory,” Holland, the co-pilot of the DPS helicopter from which Castro Estrada and Coj Cumar were shot, declares at the opening of the show. “We’re using tactics and equipment that you will see in war zones.”
It was in “Texas Drug Wars,” which aired in March 2011, that the public saw for the first time a DPS tactical officer shooting from a helicopter at a speeding truck, which swerved down a busy highway in a crowded metro area along the border. The pilot of the helicopter was Prince, also the pilot in the fatal shooting.
In a statement provided to the Texas Rangers, Prince said that just a few hours before the shooting on Sevenmile Road, he and Holland had led a border VIP tour for David Baker, deputy director for DPS’s law enforcement operations; Kirby Dendy, the new chief of the Texas Rangers; and Republican state Rep. Byron Cook. Their helicopter touched down at Anzalduas Park in Mission, then provided “aerial support,” according to Prince, as the three officials toured the Rio Grande on one of DPS’s armored gunboats. After that, Prince and Holland were joined by Avila, the designated marksman that day, and they patrolled the northwest part of Hidalgo County until they heard the game wardens call in the pursuit on the police radio.
As the helicopter video makes clear, the three decided quickly to begin firing rather than deescalate the high-speed chase or confirm whether police on the ground could put down tire spikes, a safer tactic to disable a moving vehicle. Instead, within two minutes of joining the pursuit on a dirt road heading toward the small border town of Sullivan City, Avila can be heard asking: “Are we going to shut this down before it gets to town?”
“If he keeps on, I think it’s not a bad spot, Mike,” Holland replies.
All three officers have said that they thought the truck was carrying bales of marijuana under the black tarp and that since they were approaching an elementary school and a more inhabited area, they believed they should disable the vehicle before people got hurt. “We were convinced at that time, or I was, and it was the consensus of the other two cockpit personnel that that was — it was a drug load,” Prince told Glenn Perry, an attorney working with Smith on the depositions.
One of the most disturbing revelations from the depositions is that Avila had no real-life training in shooting at moving targets from a helicopter. In his deposition, Avila admitted that he had only received classroom training.
“They all knew that this would have been the very first time that you had ever tried to use deadly force to disable a vehicle and terminate a pursuit,” Perry said, referring to the other two officers in the helicopter.
“Correct,” Avila said. The DPS marksman explained that he was shooting at the rear tires of the truck to avoid hitting anyone in the cab. “Because I wanted to make sure where I was aiming, and where I was hitting, for the safety of the driver.”
Bullets tore through Castro Estrada and Coj Cumar as Avila repeatedly took aim at the left rear tire and missed. Fragments from a .223-caliber round were extracted from Castro Estrada’s arm during the autopsy, a different caliber from the DPS service weapon Avila was allegedly using: a LaRue OBR with .308-caliber bullets.
Smith said he wonders whether the tactical officer was carrying his personal weapon as well as his service weapon, adding to the reckless Wild West nature of the shooting. “Did he have the .223 in his hands when he first started firing, then realized his mistake and switched over to his LaRue?” According to DPS policy, officers can carry their own weapons if they receive permission from their supervisors.
In his deposition, Avila said that he owned at least two weapons that fired .223-caliber bullets but had neither of them on the helicopter. Both weapons were tested for a ballistic match, but the results were inconclusive.
Despite the tragedy, Prince said that the shooting was warranted, even if there were people in the back of the truck.
“If you had had any concerns at all that there could have been a human being in the back of that truck under that tarp, would you have agreed to use deadly force to try to disable that vehicle?” Perry asked.
“Yes, sir,” Prince answered.
“You would have?”
“So I guess it really doesn’t make any difference whether there were people under the tarp or drugs under that tarp. Is that right?”
“That is true. … But we probably would not have picked the back left tire to shoot,” Prince said. “It would have gone to the front tire … if we knew there was people there.”
“The Politics of This State”
Smith was 30 years old when he took on the Guatemalan widows’ case in 2014. He said he plans to keep battling DPS’s lawyers in court until the end, which he worries could come soon.
Smith is suing the agency under the Texas Tort Claims Act, which provides exceptions to sovereign immunity in cases of negligence. “The predominant claim is that it was negligent for Miguel Avila and the other troopers to use a helicopter to rain down bullets on a truck in an effort to disable it,” he said. “Particularly when the underlying offense is an alleged traffic violation for making a right-hand turn without using the turn signal.”
If the lawsuit prevails in the court of appeals, Smith said, he expects that lawyers for DPS will file a petition for review, which means the case will be kicked up to the Texas Supreme Court, where it will be scrutinized by a conservative, elected panel of judges. DPS has steadfastly argued that the shooting was not negligent and that because of sovereign immunity, the Guatemalan widows have no legal right to sue. Chances are slim to none that the judges will rule against the police, he said: “It’s just the politics of this state.”
Henderson also believes that the lawsuit will most likely fail. “I wish the public had a better understanding of how bad the circumstances are … when it comes to police brutality and misconduct cases,” he said. “There are special rules carved out for law enforcement that don’t exist in other cases. DPS troopers were authorized to shoot vehicles. And while I think that’s a terrible law, it’s going to make it even harder to hold these officers accountable under the theory of negligence.”
After the deaths of Castro Estrada and Coj Cumar, border residents and civil rights groups placed two white wooden crosses at the side of the rural ranch road where they’d been shot. Betty Perez, a local rancher, participated in a candlelight vigil and protest there in 2012. In late July 2021, Perez and I drove down to Sevenmile Road to see if the crosses were still standing.
“I came down here for the protest because this is basically my backyard,” she said. “It’s just five miles from my ranch. There were probably 50 of us there at the protest.” She scanned the side of the caliche road for any sign of the crosses as she piloted her dust-coated Subaru.
“After you called, I was talking to a friend, and I said, ‘Remember that DPS helicopter shooting when those men died?’ And he said, ‘What? I don’t remember that!’” Perez shook her head. “I had to remind him of it. So much horrible stuff has happened since then,” she said, slowing the car to a stop. “The military buildup, all these guns down here. I’m more afraid of the police now than I am of any immigrant.”
She gestured with her hand toward a strip of overgrown grass on the side of the road. “They were there, I think,” she said of the crosses. “They’ve probably been gone a long time now. People forget.”
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