On a quiet Friday at the end of May, US Customs and Border Protection finally released an independent review of its use of force policies — its hand forced by a lawsuit from the ACLU of San Diego.
The report, conducted by the Police Executive Research Forum, was commissioned by CBP in the wake of pressure from Congress, sparked by an Investigative Fund/PBS broadcast. It was issued in February, but CBP had refused to make it public until now.
There’s some pretty stunning information inside.
After two years of reporting on excessive use of force by the US Border Patrol, Investigative Fund reporter John Carlos Frey had uncovered some 20 suspicious shootings, including that of 16-year-old Jose Antonio Elena Rodriguez, shot twice in the head, and then eight more times as he lay prone on the sidewalk, and one brutal tasing death, that of Anastasio Hernandez Rojas. But the report reviews 67 incidents from January 2010 through October 2012 in which border agents used deadly force — indicating an even more pervasive problem among the Border Patrol's rookie-heavy ranks.
Twenty-nine of these cases, like the shooting incident that ended the life of Guillermo Arevalo Pedroza, shot as he was picnicking with his wife and young daughters, involved agents who claimed to be responding to rock-throwers. In four cases, as with the Arevalo incident, the border agents were in boats; the rest of the incidents took place on land. The report pulls no punches when it comes to Border Patrol agents overusing lethal force in such situations: “It is not clear that all shootings by agents on water to counter rock throwers meet the standard of objective reasonableness….Moving to a safer location when possible is preferable to using deadly force.”
As for the incidents on land, “Some cases seemed to be a clear cut self-defense reaction…while other shootings were of more questionable justification.” Among the “more questionable cases,” the report singles out incidents that involved “subjects who were throwing rocks from Mexico,” a phenomenon Frey was the first to report on, in a piece for the Washington Monthly. The report notes that “frustration is a factor motivating agents to shoot at rock throwers” and suggests, in bold face type, that there must be “clear justification to warrant the use of deadly force” and that CBP must train agents instead to “de-escalate counters” by taking cover or moving out of range.
The report recommended substantial revisions to the CBP’s use of force policies in crucial ways, including an emphasis on de-escalation, use of less lethal weapons, and defensive actions, such as moving away from rocks or moving vehicles. It also suggested adding a forward to the policy emphasizing that “respect for human life shall guide all members of US Customs and Border Protection in the use of force” and that “excessive force is strictly prohibited.”
The new, revised Use of Force Policy handbook, also quietly released on May 30, includes no such language.
The CBP’s new commissioner, Gil Kerlikowske, has promised more transparency at the agency, and the public release of this handbook is a small but important step forward. Previous use of force policy guidelines have been withheld from the public, and Investigative Fund FOIA requests to see previous iterations of the guidelines have long been stonewalled. And the new guidelines contain some important improvements: they require agents to undergo additional training in the use of safe tactics, such as seeking cover, and require all agents to carry less-lethal devices. In particular, the guidelines give agents far less latitude in using lethal force against rock throwers, saying agents “shall not discharge firearms in response to thrown or launched projectiles” unless the objects pose “an imminent danger of serious physical injury or death.”
In the 67 cases of deadly force by Border Patrol agents documented in the PERF report. A CBP spokesperson told the Orange County Register that the agency took disciplinary action against agents in only two of those 67 cases, and that internal affairs investigations are open in only 10 more. The spokesperson, Michael Friel, said CBP had disciplined agents for use of force in only 14 cases from 2010 to 2013, and the discipline amounted to slaps on the wrist: eight employees were suspended and five were merely reprimanded. None lost their jobs.