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鈥淭his guy is pretty much scalped over here. This guy, he鈥檚 breathing but I couldn鈥檛 get a pulse on him. I think he鈥檚 going,鈥� a Border Patrol agent is heard saying on Do帽a Ana County Sheriff鈥檚 Office body cam footage from August 3, 2021. Early that morning, Border Patrol agents pursued a vehicle at high speeds on a narrow road, causing a crash that killed two people and injured eight others.

One of those who died following the August 3 crash was Erik Molix, a U.S. citizen whose parent is now our client. Between 2019 and 2021, the number of deaths resulting from Border Patrol vehicle pursuits jumped 11-fold, to 23 deaths last year. The body count for such chases continues to increase this year. The agency鈥檚 deadly actions raise urgent questions about how these pursuits are investigated and what measures are taken to ensure public safety and accountability.

Of particular concern has been the involvement of Border Patrol Critical Incident Teams (CITs). For the first time ever, we were able to obtain a copy of the incident report produced by a CIT following a fatal incident. That report, on the August 3 crash, is littered with inconsistencies and inaccuracies, revealing how CITs operate in a way that could obfuscate the facts of the incident and protect the Border Patrol and its agents from accountability.

This report proves that ending CITs, as U.S. Customs and Border Protection (CBP) has it will do at the end of this fiscal year, is not enough. The agency must preserve all past records created by the CITs and initiate an independent review of cases impacted by CIT involvement.

Customs and Border Protection, Border Patrol鈥檚 parent agency, has a long history of allowing personnel to commit abuses with impunity. The agency鈥檚 disciplinary system has long failed to secure appropriate outcomes for misconduct. At the center of the internal system to review agents鈥� misconduct and issue disciplinary consequences is the CBP Office of Professional Responsibility (OPR). While OPR is tasked with conducting independent and impartial investigations, confidence in their results is wholly undermined by the involvement of Border Patrol鈥檚 CITs as investigators.

Documents uncovered by the Southern Border Communities Coalition last year revealed the existence of CITs, whose is the 鈥渕itigation of civil liability鈥� for Border Patrol agents who might face lawsuits for misconduct. CITs report to Border Patrol leadership at the sector level and are tasked with conducting investigations of 鈥渁ny traffic collision鈥� and any Border Patrol conduct that 鈥渞esults in death, serious bodily injury, significant property damage, or other exposure to significant civil liability.鈥� These teams, which do not operate independently or impartially, have a clear bias and conflict of interest when they are charged with investigating incidents where agency personnel may prove to be liable for misconduct.

Troublingly, CITs are not designated by the U.S. Office of Personnel Management as criminal investigators and are not authorized to undertake any such investigations. All other federal agencies tasked with the investigation of potential criminal misconduct operate under explicit statutory authority. The U.S. Department of Justice鈥檚 own for internal investigations further instruct that only allegations of minor misconduct, such as 鈥渄iscourtesy or rudeness,鈥� should be relegated to the 鈥渦nit level,鈥� with oversight by the authorized internal affairs office.

James Tomsheck, head of CBP Internal Affairs from 2006 to 2014, in court documents published in 2021 that Border Patrol 鈥渉ad no authority to investigate, but it nonetheless consistently tried to assert investigative authority, and very frequently interfered with legitimate investigations,鈥� adding that, 鈥淚t was standard practice for Border Patrol to defend incidents in use of force, to always make it appear that it was justified.鈥�

Little is known about CITs鈥� activities in cases involving deadly vehicle pursuits, beyond their apparent mandate within the agency to investigate such incidents. We were only able to confirm the direct involvement of an El Paso Sector鈥檚 CIT in investigating the recent crash that killed our client鈥檚 son by way of state-level public records requests 鈥� and the CIT report for this crash raises more questions than it answers.

The CIT report for the August 3 incident is the first of its kind obtained by advocates investigating CBP accountability. It provides us with unprecedented insight into how CIT investigators process a scene and the quality of the reporting that they generate, upon which OPR and other investigators rely.

The 162-page 鈥淩eport of Investigation鈥� indicates that the CIT played the central role in investigating the deadly crash. The CIT immediately, deploying investigators to the scene of the crash as well as the regional hospitals where victims had been transported. They photographed the crash, collected physical evidence, obtained video recordings and radio communications, interviewed and photographed the victims and Border Patrol agents involved, obtained reports from New Mexico State Police and the El Paso County Office of the Medical Examiner, and analyzed the evidence gathered from the scene. Their investigators the crash and calculated the vehicle鈥檚 estimated speed.

Troublingly, the CIT report is riddled with errors, gaps, and inconsistencies that fundamentally undermine the investigation.

The report contains multiple inconsistent narratives that purport to describe when and why a Border Patrol agent initially began to follow the victims鈥� vehicle as it approached a Border Patrol checkpoint on NMSR 185, in rural southern New Mexico, and the CIT investigators make no effort in the report to identify or reconcile those discrepancies. The report鈥檚 summary says that the agent initially followed the vehicle 鈥�,鈥� but when the vehicle passed the checkpoint the Border Patrol agent was, according to the CIT investigators鈥� summaries of video recordings, only behind the vehicle.

The report is unclear about when the Border Patrol agent following the vehicle activated his emergency equipment, which is a critical data point because regarding vehicle pursuits only apply when an agent activates their lights and sirens. The agent reportedly did not his emergency equipment until after the vehicle bypassed the checkpoint, even though he was already following the vehicle extremely closely. Some of the vehicle鈥檚 passengers reportedly only saw emergency but did not hear sirens, but the investigators make no mention of whether recordings indicate if both lights and sirens were in fact activated. Both are mandatory under CBP鈥檚 vehicle pursuit policy.

Additionally, summaries of video recordings in the report indicate that Border Patrol agents at the checkpoint set out 鈥溾�� to attempt to stop the vehicle, but the E-STAR Incident Report states that were deployed. Again, the CIT investigators make no note of this discrepancy.

The circumstances of the crash are likewise unclear and the report does not provide any critical analysis of gaps and inconsistencies in the record. The last radio transmission by the agent who initiated the pursuit was at mile marker 27, but the crash did not occur until approximately mile marker 28.5. What transpired in the intervening mile and a half is not clearly accounted for. The CIT investigators鈥� summary of the incident states that the 鈥減ursuit鈥� lasted about , but the Border Patrol checkpoint is only approximately 2.5 miles from the crash site. The Significant Incident Report provides yet another inconsistency without explanation, stating that the pursuit only lasted about . Remarkably, the latitudinal and longitudinal coordinates in the E-STAR Incident Report indicate that the pursuit started at the Border Patrol checkpoint and ended in a location off a country road that is away. The same Incident Report states that the pursuit lasted 2 minutes and traversed . The crash is attributed varyingly to high speeds on a in the road and to the vehicle 鈥�.鈥� The report alternates between characterizing the incident as a 鈥溾�� and as a .

The report fails to scrutinize statements addressing how promptly the Border Patrol agents called for emergency medical services. The CIT investigators鈥� summary states that agents 鈥渋mmediately鈥� requested EMS, but time-stamped radio logs in the Significant Incident Report indicate that EMS and medical airlifts were not requested until after the crash. The report鈥檚 of radio communications, which lacks timestamps, indicates the urgency of the situation, with an agent on the scene stating that 鈥渕ost鈥� of the vehicle鈥檚 occupants were 鈥渘onresponsive鈥� and saying, 鈥淕ive me as many ambulances uh that you can send.鈥� ranged from brain damage and skull fractures to spinal fractures, hematomas, and lacerations. One passenger鈥檚 scalp was ripped off, multiple individuals had to be intubated, and two ultimately died.

The report makes clear that CIT investigators were among those first notified of the incident. Within 20 minutes of the crash, Border Patrol personnel to the CIT, and a CIT investigator was en route to the scene from El Paso about half an hour later. Another CIT investigator went directly to the regional hospital to meet the air ambulance there. It is not apparent from the report when OPR was first notified. The report indicates that one of the CIT investigators with an OPR Special Agent in Las Cruces on the day of the incident and OPR conducted some . The report does not contain information indicating whether CIT investigators conducted interviews alongside OPR or otherwise.

The photographs that CIT investigators took of the incident are wholly inadequate in providing clarity about the crash. The at the scene of the crash do not have a timestamp. The photographer was standing at a distance from the vehicles parked on the roadway, such that no license plate numbers or unit numbers are visible, other than for the vehicle that crashed. The report does not include any photographs of the places on the roadside where people who were ejected from the vehicle were located. Subsequent taken of the vehicle鈥檚 driver and passengers, many still hospitalized, do not have names, locations, timestamps, or other identifying information.

The of the Border Patrol vehicles involved in the pursuit are, inexplicably, not from the scene of the crash. They were taken at night, in a parking lot with poor lighting, and one vehicle is partially covered by the shadow of the photographer. The Border Patrol vehicles appear to have been recently cleaned. One of the Border Patrol vehicles was also photographed in what appears to be an automotive repair shop on a lift. These, too, lack any timestamps, although the report indicates that CIT investigators did not request photographs of the Border Patrol vehicles involved in the incident until August 9, after the crash. No explanation for the delay is provided and raises questions about any potential contact between the Border Patrol and victims鈥� vehicles.

Other inconsistencies and gaps in the report further call into question its reliability. The report does not indicate a chain of custody for any evidence collected but confirms that the photographs, diagrams, audio recordings, and video recordings of the incident are all by the El Paso CIT. A of required notifications does not indicate that any photographs were collected, although the report itself contains photos taken at the scene. That same checklist does not indicate that any administrative claim forms for damages, injury or death were distributed, despite the multiple deaths and severe injuries incurred by the vehicle鈥檚 occupants. One part of the report says that the U.S. citizen driver was at the time of the crash, but another part of the report says that he was or taken into custody. The report erroneously states that the driver died of his injuries on , when in fact he was pronounced deceased on .

The report does not provide detailed information about the custody determinations and immigration processing for the vehicle鈥檚 passengers, but it does indicate that at least two individuals were rapidly from the United States under Title 42. Those expulsions took place only a few days after the incident, while the CIT investigation into the crash was ongoing. Notably, the CIT report includes a copy of a newspaper regarding a letter sent by the ACLUs of Texas and New Mexico to CBP calling for an independent investigation into this incident. When victims and witnesses are expelled by CBP, the same agency conducting the investigation into an incident involving its own agents, it raises serious questions as to whether those individuals were denied access to legal protections or remedies that may have been available to them as a result of CBP misconduct.

Fundamentally, the CIT report of the August 3 vehicle pursuit and crash demonstrates the need for the agency to preserve all past records created by the CITs and initiate an independent review of cases impacted by CIT involvement. If this report is indicative of the standards at which CITs perform, OPR has jeopardized the independence of past investigations by relying on documentation of such dubious accuracy for serious incidents involving injuries and deaths.

Correction: A previous version of this article misstated the origin of the body cam footage from the crash scene. The footage is from a Do帽a Ana County Sheriff鈥檚 Office鈥檚 body camera.