Texas National Guard member says it’s not clear how his gun discharged, shooting migrant

By Rosa Flores and Zoe Sottile, CNN

(CNN) — The Texas National Guard member who shot a migrant during a struggle in January unholstered his pistol, then switched the pistol from his right hand to his left before the firearm went off, striking the migrant in the shoulder, according to his sworn statement.

In a sworn statement obtained by CNN through an information request, the National Guard member described the altercation with the migrant.

“Under the threat of serious bodily injury I unholstered my M17 pistol to show I was armed, but he continued throwing body blows towards my torso,” says the national guard member’s sworn statement. “I switched my M17 from my right hand to my left in the low ready, in order to have more positive control over him in keeping a distance between me and him but he continued to grapple with me and I could feel him trying to take me down to the floor with him.”

The shooting happened in the early morning of January 15 in the Rio Grande Valley of South Texas, the incident report states. At the time, Border Patrol requested the assistance of the Texas National Guard in the search for migrants who had breached the border wall, according to the National Guard member’s sworn statement.

This was the first known incident involving a service member shooting and injuring a migrant since Texas’ Operation Lone Star started in March 2021, CNN previously reported.

The name of the guard member is redacted, but the incident report states that the Caucasian male had secret security clearance and was assigned to D Company, 3rd Battalion, 141st Infantry Regiment. In his sworn statement, he says that he and his partner followed a Border Patrol agent, with a K-9, to an abandoned house and they shouted at the migrants in both Spanish and English to “stop and surrender.”

With the help of a headlamp, the guard member says he saw an individual trying to exit through a window and he approached the person.

The migrant “began throwing back-ward elbow blows and hammer punches at me, which struck my upper torso,” the sworn statement says. In the scuffle, the National Guard member states he was trying to keep his balance while the migrant struck his front chest plate.

“While I held him with my left hand I touched my holster to check if my M17 pistol was still there but he tried to get hold of my wrist so I took a step back while still having one hand on him,” the statement says.

The National Guard member unholstered his weapon to show he was armed, lost his balance, fell on his back and the migrant fell on top of him, according to the sworn statement.

“During the commotion my M17 accidentally discharged one round. I do not know if [it] was me or the migrant who caused the discharge. I got up on one knee as soon as possible and immediately holstered my pistol. With my other hand I held on to the migrant asked him if he was okay, and began checking him to see if he had been hit,” the statement continues.

The migrant who was shot is a man from El Salvador who was not identified by authorities, CNN previously reported. He was shot in the shoulder and released from the hospital the same day.

Through an information request, CNN obtained copies of the incident report, the use of force policy, sworn statements by two National Guard members, the policy regarding service members providing emergency aid to migrants, and the policy regarding a service member’s ability and authority to apprehend or detain migrants.

The sworn statement by the second service member states they were inside the abandoned house with their partner when they heard “a round go off.”

“When I got to [redacted] he was on his back with the migrant on top of him and [I] asked him and asked them if they were okay,” the sworn statement says.

National Guard authorized to use ‘minimum force necessary’

CNN also obtained a copy of the policy regarding the National Guard’s ability and authority to apprehend or detain migrants. A portion of the policy is redacted, but the unredacted portion states service members “are authorized to use minimum force necessary to apprehend or detain” migrants and are authorized to do so when “directed by a law enforcement officer (LEO) or responding to requests for assistance from LEOs.”

The documents obtained by CNN do not indicate that the migrant was armed. According to the use of force policy obtained by CNN, National Guard members may use “only the MINIMUM level of force necessary to control the situation and to defend yourself or others,” and “firing a weapon is always deadly force!”

The account of the service member whose weapon discharged does not explain how and when the safety switch of the weapon was flipped.

“The M-17 is a military version of the SIG Sauer P320 equipped with a safety mechanism that a shooter must manually disengage with their thumb before the gun can fire,” said Josh Campbell, CNN Security Correspondent and a former FBI Supervisory Special Agent. “In this case, only one of two things could have happened to enable the gun to fire: either the safety was accidentally disengaged during the physical altercation, or the guardsman purposefully set his weapon in the ready to fire position.”

“Authorized ‘minimum’ force to detain someone can quickly escalate to deadly force if a guardsman reasonably believes an individual poses an imminent threat of death or serious injury,” Campbell said. “But the Texas National Guard’s policy indicates a guardsman must exhaust all other available means of controlling a situation before resorting to deadly force. According to the agency’s protocols, simply being in a physical fight with someone is not enough justification to shoot them.”

The Texas Rangers – a division of the Texas Department of Public Safety – are investigating the case. CNN has reached out to the agency for an update on the investigation and has not immediately heard back.

Governor Greg Abbott launched Operation Lone Star in response to a rise in illegal immigration. The state has allocated more than $4 billion to finance the effort, which includes the deployment of thousands of Texas National Guard members and Texas Department of Public Safety troopers to the Texas-Mexico border.

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