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Was the Killing of a Migrant by a Former ICE Warden a Hate Crime or a Terrible Accident?

On a balmy evening in far West Texas in late September, several Mexicans were fired upon by two white Americans. A man was hit and died at the scene; a woman was gravely wounded.

The shooting victims were part of a group of 13 migrants, including a 13-year-old girl. Many were kin and friends from a cluster of small farming communities in northern Mexico. Most were poor and wanted to immigrate to the U.S. to work and send money to their families. One was fleeing homicidal violence in Mexico that had already landed him in the hospital with bullet wounds.

They walked into Texas illegally and hiked for two days through mountains, desert, and arroyos. They planned to meet up with a driver who would take them into the U.S. interior. Just before reaching their pick-up spot, they happened upon a shallow body of water ringed by lush greenery and golden wildflowers. They were at Fivemile Tank.

In Texas, tanks can refer to ponds of water that ranchers maintain for their cattle and other livestock. All kinds of wild animals are also drawn to them, and sometimes so are people, especially near the border. The migrants were exhausted and thirsty. They walked to the water and crouched down to drink.

The migrants said they ducked into the brush after hearing a vehicle approach. They had been drinking from the west side of the tank, which is shaped roughly like a circle some 200 feet in diameter, when they heard the noise from a public farm road on the east side. In an affidavit written by an investigator with the Texas Rangers and later made public, the Mexicans said the driver then backed up, exited the truck, and laid a firearm on the hood. Then, according to the affidavit, one of the Americans yelled, in Spanish, the English equivalent of “Come out, you sons of bitches, little asses!”

The shooter fired twice. One shot hit Jesús Iván Sepúlveda, a young father, in the head; it proved fatal. The other tore into the gut of Brenda Casias Carrillo, a mother of three children.

A national uproar ensued, with civil rights advocates and politicians denouncing the shootings as attacks against immigrants — as murder, attempted murder, and hate crime.

Cattle is pictured through a car window next to the Five Mile Tank, where a group of migrants were shot at by Michael and Mark Sheppard in late September, near Sierra Blanca, Texas on Sunday November 6, 2022.   Photo: Paul Ratje for The Intercept

Cattle pass by Fivemile Tank in late September, near Sierra Blanca, Tex., on November 6, 2022.

Photo: Photo: Paul Ratje for The Intercept

I reconnoitered the tank in the mid-afternoon a few days after the killings, and weeks later at sunset, the approximate time when the shootings occurred. I also reviewed the tank’s history with its owner and interviewed most of the migrants who were eyewitnesses to the shootings and who remain in the United States. People in Sierra Blanca acquainted with the men arrested in the shooting also spoke with me. And I connected with their lawyers.

What I found casts doubt on the commonly offered scenario — that this was a shooting deliberately done to harm the Mexicans — though the alternative explanation for the shootings is equally disturbing. Instead, they appear to have been a hunting accident, albeit one caused by indifference to various kinds of life — animal and human — on the border with Mexico. These days on the north side of the Rio Grande, it doesn’t take consciously bad actors to hurt and kill. The entire region is now a bad actor, saturated with fear, loathing, and suffering, especially among the newly arrived.

The accused shooters are Mike and Mark Sheppard, 60-year-old twins originally from Florida’s rural Panhandle. They are charged with manslaughter in the death of 22-year-old Sepulveda and aggravated assault with a deadly weapon in the wounding of Casias Carrillo. Neither of the charges implies an intent to harm or kill. Both imply criminal recklessness, behavior that any reasonable person would avoid as dangerous and deadly.

According to the Texas Ranger affidavit, Mark Sheppard said that, at Fivemile Tank, his brother used a shotgun on what they thought were javelinas, the Southwestern term for collared peccaries, 40- to 60-pound mammals that look something like wild hogs.

In Texas, javelinas are classified as game that must be retrieved, dressed, and processed for meat after being killed. But many people dislike the animals’ rank smell and taste. “I don’t know anyone who eats them or that brags about killing them,” said Liz Rogers, a longtime, small-town West Texan. “Lots of folks kill javelina just to kill them.”

The West Texas Detention Facility, where Michael and Mark Sheppard, who shot at a group of migrants in late September worked, is pictured at dusk in Sierra Blanca, Texas on Sunday November 6, 2022.   Photo: Paul Ratje for The Intercept

The West Texas Detention Facility, where Michael and Mark Sheppard worked, is pictured at dusk in Sierra Blanca, Texas, on Nov. 6, 2022.

Photo: Photo: Paul Ratje for The Intercept

Before the shootings, Mike Sheppard was warden of the West Texas Detention Facility, about a mile up the road from Fivemile Tank. A private jail that used to house noncitizens held on immigration law charges, it has been wracked in the past by reports of physical and verbal abuse, particularly against Black detainees — violations said to have been inflicted even by Sheppard himself. In 2018, 30 African detainees, represented by immigration advocate organizations including RAICES, alleged abuse by authorities at the jail. Among the accusations was that Sheppard had told one African inmate to “shut your black ass up” and called two others “boy.”

The Department of Homeland Security’s Office of the Inspector General immediately launched an investigation of Sheppard in his capacity as warden, and the department’s Office for Civil Rights and Civil Liberties followed months later with its own probe. Both organizations verified that, during Sheppard’s tenure in 2018, African detainees were tear-gassed on two occasions. The inspector general found that the gassings occurred after large groups of detainees became agitated, unruly, and violent about their impending mass deportations. A nurse said she heard Sheppard yell and curse at detainees during one of these events and call one African man a derogatory name.

Homeland Security’s Office of Detention Oversight also did an inspection. It found that some supervisors were not certified in the proper use of “less lethal munitions,” such as tear gas. The inspector general produced evidence suggesting substandard medical care. The detention oversight office noted unacceptable levels of dirt, dust, and debris in detainees’ living areas and toilets.

Nevertheless, the inspector general report declared that all the African detainees’ allegations of abuse were “unsubstantiated.” The Office for Civil Rights and Civil Liberties found no improper behavior by the warden or his staff. And the Office of Detention Oversight only recommended that the local field office “work with the facility to remedy any deficiencies.” Sheppard stayed on at the West Texas Detention Facility as warden.

The government reports remained virtually unpublicized until this year — when the shootings scandal erupted.

After the Fivemile Tank incident, U.S. Rep. Veronica Escobar, D-Texas, organized 16 Democratic members of Congress to write to the Department of Justice, urging an investigation into the September shootings as hate crimes. RAICES had co-sponsored the original abuse report, more than four years earlier. Now RAICES denounced the shootings as “xenophobic attacks” and the Sheppard brothers as white supremacists.

“Mike loves to hunt,” Arvin West told the New York Times. West is the sheriff of Hudspeth County, where the shootings occurred, and runs the county jail, where he employed Mark Sheppard as a maintenance worker. West also sometimes substituted for Mike Sheppard at the West Texas Detention Facility when Mike was unavailable to work. (Mike Sheppard was fired from the jail after the shootings.)

Hudspeth County owns the West Texas Detention Facility and leases it to LaSalle, a national private prison company. LaSalle detention centers, many of which are part of a sprawling network of Immigration and Customs Enforcement facilities for detaining migrants, have been the subject of numerous media reports and government investigations for allegations of substandard conditions and violations of detainees’ civil rights. The most infamous involved accusations that a LaSalle facility in Georgia contracted a doctor who performed invasive, often unnecessary gynecological procedures on women detainees without their knowledge or consent. (ICE no longer holds immigrant detainees there.)

Both the Hudspeth County jail and the West Texas Detention Facility are located in Sierra Blanca, a town 80 miles east of El Paso. Only about 800 people live there, most of Mexican American heritage.

Few outsiders have heard of Sierra Blanca. It consists of little more than crumbling old buildings, a gas station that sells fast-food pizza, a couple of cafes, and the state’s only courthouse made of adobe. The town is known mainly for its proximity to a Border Patrol checkpoint on Interstate 10, infamous for arrests of celebrities caught driving with small amounts of marijuana, including Willie Nelson, Snoop Dogg, and Fiona Apple.

An old building is seen through a reflection in the town of Sierra Blanca, Texas on Sunday November 6, 2022.   Photo: Paul Rate for The Intercept
Rough terrain is pictured near the U.S.-Mexico border in Hudspeth County, Texas on Sunday November 6, 2022. Photo: Paul Rate for The Intercept

Scenes from around the town of Sierra Blanca, Tex., on November 6, 2022.
Photo: Paul Ratje for The Intercept

Paul Rate for The Intercept

Fivemile Tank lies a few miles south of town. It’s popular with locals for shooting and hanging out. When I walked its perimeter a few days after the migrants were shot, the crime scene evidence had been removed. Left behind were dozens of spent shotgun shells, several empty beer containers, and the tattered straps of an old backpack, likely discarded by a migrant passing through.

Gwen Wilbanks owns the tank. She is the 87-year-old widow of Russell “Rusty” Wilbanks, a cattle rancher and for years the chief deputy sheriff of Hudspeth County. Rusty, who died in 2010, looked and acted the part. A 2001 book about Texas mountains described his lanky, Western good looks and cowboy attire, complete with Wranglers. His nickname was “Paladin,” after the hero of the television show “Have Gun – Will Travel.”

Gwen Wilbanks has known for years that people trespass onto Fivemile Tank with recreational alcohol and recreational guns. The property is all that’s left of over 12,000 acres that she and Rusty ranched until about two decades ago, when they sold the land to a Miami real estate investor. The investor created Sunset Ranches LLC, selling off hundreds of tiny plots that people in the area call “ranchettes.” Other companies have subdivided additional ranchland, with the parcels averaging 20 acres each. Many can be purchased for no money down and less than $300 a month. They generally come with no water hookup, no well, no electricity, and spotty internet. Street signage is irregular. Roads are often impassible, mired in drifts of desert sand.

Many ranchette newcomers hail from states far from the Mexico border. Knowing little or nothing about the area where they just bought land, they arrive with fantasies of peace and quiet and the Milky Way. Many are shocked by the hard reality of life off the grid, and many stop making their monthly payments. They leave, abandoning junked campers and cabins.

For generations, it’s been common to see migrants walking across the land. Many longtime Sierra Blanca residents have grandparents who came to Texas illegally from Mexico, and many speak Spanish. In the past, when she and her neighbors saw migrants, Hudspeth County Administrator Joanna MacKenzie recently told local media, “We would help them, we would give them a ride, it was not a problem.”

Last year, however, Texas Republican Gov. Greg Abbott began pushing border counties to issue “disaster declarations” describing migrant men as dangerous criminals out to commit violence and vandalize and steal landowners’ property. Hudspeth County issued one, and many newcomers seem to take the warnings seriously. Social media is littered with tips on how to prevent trespassing on the ranchettes. Responding on a “neighborhood watch” page on Facebook, one commenter wrote: “If I catch someone on my property without my permission they will be leaving in a body bag.” On another page discussing similar concerns, a poster said, “A twelve gauge will solve your problem.”

“There’s just not much to do. Young people go there to smooch and drink beer.”

Other ranchette owners hunker down, like Sharon Smoot. A 63-year-old ex-Floridian, Smoot was a full-time massage therapist until the Covid-19 pandemic decimated her business. Now she lives alone on desert scrub about five miles north of the border. She bought the land sight unseen and occupies an old camper trailer, surrounded by jury-rigged wood corrals for her seven dogs. She has arranged mystic-looking crystals and rocks into circles. Her closest neighbor is almost half a mile away.

“There’s just not much to do,” Gwen Wilbanks said, while explaining why she is fatalistic about trespassers at Fivemile Tank. “Young people go there to smooch and drink beer. People target-shoot and hunt quail. They should ask me for permission, but they don’t, though someone called recently and asked if they could shoot coyotes.”

Coyotes are the only big game in Texas that may legally be shot and left to rot. All other prey must be collected after being killed and harvested for meat. Wilbanks said she is happy to have people slaughter coyotes at Fivemile Tank. She readily told the caller yes.

She said she never gave the Sheppard brothers permission to hunt anything at the tank.

In addition to the shooters and drinkers, another set of denizens that frequent Fivemile Tank are green-uniformed Border Patrol agents. The state ranch road fronting the tank hosts a veritable parade of their vehicles, passing by every few minutes. Smoot said she often sees agents on a ridge overlooking the tank, surveilling for undocumented migrants who are trying to avoid detection.

The Border Patrol’s work intensified over the past two years. For the first time in local memory, the Big Bend Border Patrol Sector, which encompasses Sierra Blanca, saw dramatically rising numbers of undocumented immigrants. One of the largest and most remote of the nine Border Patrol sectors on the southern border, Big Bend covers 165,000 square miles of mostly unpopulated desert and mountains. It is a brutal place to hike through and historically has been the least traveled sector by migrants.

Lately, however, that has changed. According to Border Patrol statistics, only about 3,000 single adults were apprehended in Big Bend during the first quarter of fiscal year 2020, during the Trump administration. A year later, the numbers spiked, with over 14,000 single adults apprehended. Today, this group makes up the vast majority of unauthorized migrants encountered by Border Patrol agents in Big Bend.

The spike occurred in good part because the Biden administration has been accepting families and minors into the U.S. after they turn themselves in at the border. When single adults have tried to cross, however, most have been immediately expelled, under the Trump administration containment policy known as Title 42. It’s an old, little-used public health law ostensibly being employed lately to protect the country against immigrants with Covid-19, but the Centers for Disease Control and Prevention has said the law should not be implemented in this manner. Its use against immigrants has widely been seen as an excuse to deny people the right to claim asylum.

On November 14, a federal judge in Washington blocked this use of Title 42, calling it “arbitrary and capricious.” The order is now scheduled to be lifted on December 21. Meanwhile, the government used it to summarily expel over a million migrants in 2021 alone. Most were from Central America and, like the group who stopped at Fivemile Tank, from Mexico.

Single adults turned back by Title 42 at places like El Paso discovered the Big Bend sector as a good crossing spot because its vastness makes it easier to elude Border Patrol. Traversing the area on foot, though, can be deadly. Over the past two years, border counties in far West Texas have become charnel houses. In the fiscal year 2021, Hudspeth County recovered some two dozen bodies from the mountains and desert, up from only three the year before. All were presumed to be migrants who succumbed to exposure. Up and down the southwest border, migrant deaths recorded by Homeland Security have more than tripled since fiscal year 2020, from 247 to at least 853 deaths in 2022. The United Nations International Organization for Migration now calls the Mexico-U.S. border the deadliest land crossing for migrants in the world.

“It’s usually men walking alone. They’re thirsty and hungry and exhausted.”

Out on her ranchette, Sharon Smoot feels bad about the deaths, but she’s also annoyed by migrants walking through her land. She keeps guns for protection, though she said the migrants have never made her feel unsafe.

“It’s usually men walking alone,” she said. “They’re thirsty and hungry and exhausted. I give them water and crackers. They inhale the food! While they’re eating, I call Border Patrol. I have them on speed dial.”

“I am humanitarian toward the illegals,” Smoot said, employing the word practically every English speaker in Sierra Blanca uses. “It’s wrong for them to come into this country, but I don’t want them to be hurt. I don’t target-shoot out here; that would be dangerous. Whether or not I see them, I know there are people who are hiding.”

Mass concealment is a fact of life in the area. Gwen Wilbanks’s grown sons still manage family ranchlands, and when they go out to work, they go armed. Yet, Wilbanks said, the migrants are never glimpsed by her sons: “They hide.”

A beer can and shotgun shell casings are pictured on the banks of the Five Mile Tank, where a group of migrants were shot at by Michael and Mark Sheppard in late September, near Sierra Blanca, Texas on Sunday November 6, 2022. Photo: Paul Ratje for The Intercept

A beer can and shotgun shell casings on the banks of the Fivemile Tank, near Sierra Blanca, Texas. on Nov. 6, 2022.

Photo: Paul Ratje for The Intercept

Both times I visited Fivemile Tank, I found a multicolored riot of empty shotgun shells among crushed Pabst Blue Ribbon cans and Coors bottles, and the occasional ragged backpack. I unzipped one and shook it. Empty paper wrappers fell out, wrappers for Mexican candy. At the tank, animals and people in varying states of legality, vulnerability, and hiddenness share space with each other — and with deadly weapons.

On September 27, the day the migrants were shot, the tank was ringed by foliage that was unusually dense due to recent monsoon-like rains. Gwen Wilbanks said she doesn’t like that much vegetation. It blocks the view of the tank from the road, and she likes to see her water when she drives by. She’d been thinking she needed to send some maintenance workers to cut back the brush.

The sun would have set at 7 p.m., the approximate time the Sheppards and the migrants encountered each other, according to the affidavit. I later visited at sunset to compare visibility at that time with the same conditions on September 27. The light was remarkably dim. Looking west from the road 200 feet eastward, the shrubbery, brightly colored and crisply edged in the daytime, now resembled a grayish-black smudge. It was difficult to impossible to distinguish objects in front of the smudge — much less anything or anyone who might be hiding inside it.

A view of the Five Mile Tank after sunset where a group of migrants were shot at by Michael and Mark Sheppard in late September, near Sierra Blanca, Texas on Sunday November 6, 2022. Photo: Paul Ratje for The Intercept

A view of the Fivemile Tank from the road at sundown in late September.

Photo: Paul Ratje for The Intercept

The Texas Ranger affidavit does not mention visibility problems. It also appears flawed by numerous omissions and inaccuracies. For one, it has Mark Sheppard saying that Mike used a shotgun on the migrants. Shotguns have a relatively short range, and Kevin Marcantel, the assistant district attorney assigned to the Sheppards’ cases, referenced the affidavit while remarking at a recent court hearing that Mike must have fired on the migrants from close up. “I can’t hardly believe these guys didn’t know those were human beings they were shooting at, versus javelina,” Marcantel said.

According to Mike Sheppard’s defense lawyer, Brent Mayr,  however, Mike did not use a shotgun; instead, he employed a .204 Ruger rifle. It shoots over a long distance compared to shotguns, with exceptional lethality.

Mayr and Richard Esper, Mark’s attorney, did not allow me to speak with their clients. In a phone interview, Mayr said, “Mike has been hunting his entire life and has a hunting license.” He said the brothers arrived at Fivemile Tank with shotguns in their truck, and their plan was to hunt doves. Then Mike took up the Ruger, Mayr said. Looking through its scope, he thought he saw javelinas, and he took a shot. He saw movement and asked Mark to look through binoculars. “Mark told Mike he thought he saw the black butt of a javelina,” Mayr said. He said Mike fired again but didn’t think he’d hit anything with either shot.

At the tank, animals and people in varying states of legality, vulnerability, and hiddenness share space with each other — and with deadly weapons.

“Hunters have a sixth sense about whether or not they’ve hit things,” Mayr said. He contended that Mike did not know his bullets had struck anything. Mike apparently did not have the sixth sense Mayr described: His bullets did hit living things — two members of the species Homo sapiens.

Why didn’t Mike and his brother go looking for what they might have shot? Mayr noted that javelinas are considered by many hunters to be “trash,” as he put it — animals so derided that they are not worth looking for if the hunter is unsure of having hit one. This could well explain why Mike and Mark immediately drove off after the shootings, Mayr suggested.

Yet, in Texas, neglecting to retrieve javelina carcasses after killing them is illegal. The Texas Parks and Wildlife Department calls such behavior poaching, said Jen Shugert, a department spokesperson.

Taken as a whole, however, there is no convincing evidence that the Sheppards meant to harm human beings at Fivemile Tank — or commit hate crimes against migrants. In the weeks after the shootings, I located and interviewed five eyewitnesses: most of the eight survivors who are still in the United States. Not one of them reported hearing the Sheppards utter any epithets, in any language.

Three of the eyewitnesses recalled that Mike said something after firing the first shot — but his utterance was not Spanish, as the affidavit said. Instead, according to those I spoke with, Mike said something in English, incomprehensible to the Mexicans, who said they don’t speak or understand the language. A fourth eyewitness recalled hearing Spanish, but the words he reported are innocuous: “Van a verlo” — You (plural) will see it. Another witness said that Mike said nothing at all, nor did Mark.

Within minutes of the shootings, the brothers attended a county water board meeting. A woman who was there told me that no one noticed them acting at all out of the ordinary. The next day, Mike spent time on Facebook, writing on the page of a friend who has cancer and was complaining that he was suffering from intense discomfort. “You need anything?” Mike asked in the comments. And later: “You want something for pain?”

A day and a half after the shooting, Mike and Mark were arrested and moved to a county jail in El Paso. Each was charged with manslaughter in Jesús Sepúlveda’s death. Jail records indicate that neither of them was able to sign for his jail-issued toothpaste or toilet paper, because both were put on suicide watch.

Days later, they received a second charge, for the wounding of Brenda Casias Carrillo. Punishment for each crime is two to 20 years in prison. The brothers have paid large bonds and been released from jail. So far, their charges have not been presented to a grand jury for formal indictments.

A view from the banks of the Five Mile Tank at sunset where a group of migrants were shot at by Michael and Mark Sheppard in late September, near Sierra Blanca, Texas on Sunday November 6, 2022.   Photo: Paul Ratje for The Intercept

The moon rises over the banks of the Fivemile Tank at dusk on November 6, 2022.

Photo: Paul Ratje for The Intercept

In Sierra Blanca, the community is torn. Were their neighbors hapless, if careless, shooters in a tragic hunting accident? Or did they mean to murder and maim migrants?

A resident, whose job until Mike Sheppard’s arrest brought the two in frequent contact, said they had heard Mike use derogatory language about migrants. On multiple occasions, they heard Mike disparage Border Patrol agents as “lazy asses” for not making more arrests. (The person asked that their name not be published, for fear of losing work.) In addition, the person said, Mike complained about migrants passing through Sierra Blanca. “He said, ‘Why do these motherfuckers come when there’s nothing here for them?’” (Mike’s lawyer said his client “vehemently” denies making such statements.)

Echoing statements to the media from other locals, Sharon Smoot called the brothers her friends. “They were always kind to me,” she said, adding that many townspeople who used to like the Sheppards now condemn them as hate-crime perpetrators. She denounced the rush to judgment.

Standing at Fivemile Tank at sunset six weeks after the shootings, however, Smoot admitted that she herself felt anguished. She did not know what to believe.

Struggling with her thoughts, she gazed at streaks of orange turning purple in the sky. Down on the ground, beer cans, shotgun shells, and backpack trash littered the shore, with a flock of birds dotting the water. Though their species was impossible to discern in the waning light, their presence suggested other life, maybe nearby and maybe hiding.

The post Was the Killing of a Migrant by a Former ICE Warden a Hate Crime or a Terrible Accident? appeared first on The Intercept.