Can Texas National Guard Shoot Migrants Crossing Border?

A recent clash between migrants and members of the Texas National Guard at the U.S.-Mexico border prompted calls for retaliatory violence against illegal entrants, though legal sources tell Newsweek that federal and statewide provisions regarding self-defense differ.

On March 21, videos posted on social media showed what was described as hundreds of migrants attempting to illegally enter the country in El Paso, Texas. U.S. Customs and Border Protection corroborated the reports to Newsweek, saying that "a large group of migrants" breached the Texas National Guard's concertina wire barricades located between the Rio Grande and the border wall and were subsequently detained.

The situation, which some viewers described as a riot, led to the migrants being taken into custody at the adjacent border wall. They were transported for processing under Title 8—which outlines processes for handling migrants at the border and allows migrants to lodge asylum claims. Family groups and children were prioritized, CBP said.

As immigration is under the jurisdiction of federal laws and agencies, Texas soldiers lack the authority, including the use of lethal force, available to federal agents who work and operate along U.S. borders.

Because of the incident and the influx of migrants into the U.S. through the southern border under the Biden administration, individuals have called on the Texas National Guard to take matters into its own hands by way of lethal force against migrants who attempt to enter the country illegally.

"It is unfortunately legal for federal immigration agents (CBP) to use lethal force when it is 'objectively reasonable' and an evident threat is clear," said Aimée Santillán, a policy analyst at the independent grassroots organization Hope Border Institute, located in the El Paso–Ciudad Juárez–Las Cruces region.

She referred Newsweek to the CBP's Use of Force Policy, which was published in January 2021 and provides a general list of guidelines for federal agents to adhere to.

Less-lethal force, according to the guidelines, would be "force not likely or intended to cause serious bodily injury or death," and any use of it "must be both objectively reasonable and necessary in order to carry out the Authorized Officer's/Agent's law enforcement duties."

Certain devices and weapons may be used in "situations where empty-hand techniques are not sufficient, practical, or appropriate to control disorderly or violent subjects," the guidelines add.

The guidelines also say that reasonable consideration refers to any factors that may counsel against the use of such force, including the presence of vulnerable subjects—such as small children, the elderly, those who are visibly pregnant or individuals who lack the ability to quickly disperse from the area.

Agents and officers must also cease application of force, and seek medical assistance where feasible, when criminal activity ceases or when the incident is under control.

They may not use deadly force "solely in defense of the IBB unless there is an imminent threat of death or serious bodily injury to the officer/agent or others," the guidelines continue, referring to an international boundary barrier.

"State officials, especially the governor, have justified the use of lethal force through apprehensions and encounters related to Operation Lone Star by claiming that migrants are trespassing into private property and now into Texas property, giving the feeling of 'invasion,'" Santillán said.

Texas Governor Greg Abbott and other statewide officials and politicians are awaiting the final ruling on Senate Bill 4, a law approved by state legislators that is being litigated by the U.S. Supreme Court and lower courts. If enacted, it would allow Texas officials to arrest, detain and deport migrants suspected of entering the country illegally, in the same vein and under the same authority typically provided to border agents under the auspices of federal laws.

Margath Walker, a professor in the departments of geography and geosciences and urban and public affairs at the University of Louisville, told Newsweek via email that the National Guard had assisted CBP in securing the southwestern border but had not engaged in direct law enforcement roles. Support mostly came in the form of logistics and administrative activities.

The current debate about S.B. 4 is framed as a Title 10 (federal) versus Title 32 (state) issue.

Walker said: "The Texas National Guard cannot be 'federalized' as it were. However, this tension between state and federal authority lies at the heart of the current immigration landscape.

"Immigration enforcement is under the purview of the federal government but appears to be a moving target due to recent challenges to that authority. Senate Bill 4 is one example."

Prior to Operation Lone Star and the Texas challenge to federal authority, the rules of force were governed by state guidelines and were more restrictive than federal guidelines, she added. Only the president could activate the authority for the Texas National Guard to have the present authority of federal agents, which it currently does not have—and which precipitated the bill in question.

David Abraham, a law professor at the University of Miami, told Newsweek via email that there is no clear answer on how lethal force should in essence be delegated, listing issues surrounding proportionality and ensuring officer safety as the main determinants.

In a mode of transparency, CPB published updated standards regarding the use of lethal force in January. The new standards describe an officer's use of force as being "about balance" and "in proportion to what's called the 'totality of circumstances.'"

That balance can be difficult to discern, based on the type and amount of force used and the risk of foreseeable injury. On the other side of the spectrum, in the government's interest, officers and agents must weigh crime severity, threat and the level of resistance.

In February, U.S. Representative Morgan Luttrell, a Texas Republican, introduced the Defend Our Borders From Armed Invaders Act in the House, which would authorize the National Guard to escalate force as necessary to repel an armed individual attempting to illegally enter the U.S. through Mexico.

A spokesperson for the congressman told Newsweek that the legislation applied only to those migrants carrying lethal weapons. The bill currently awaits committee markup.

"This border crisis is a full-on invasion, and the Biden Administration continues to recklessly turn a blind eye to the ongoing danger this presents," Luttrell, a 14-year U.S. Navy veteran, told Newsweek. "I fully support Governor Abbott's and the Texas Guard's efforts to secure our border."

Abraham said that from the legislation's title alone, one could safely say the intention was to "allow, indeed encourage, the preemptive use of violent force against those trying to cross the border without legal authorization."