Few Answers on Border Patrol Agents’ Use of Force

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In June 2010, Anastasio Hernandez-Rojas died in the custody of Border Patrol agents, after being hit by a baton and a taser when he resisted arrest.

Officials said Hernandez-Rojas was combative and needed to be subdued, but two years later, new footage emerged to show the man lying on the ground in a crowd of about 20 agents, calling for help in Spanish as he was tased five times.

An inspector general report, sparked by Hernandez-Rojas’ death, was released this week. Department of Homeland Security investigators found that the Border Patrol still has no way to track allegations of excessive use of force or investigations into such cases.

Since 2006, the Border Patrol force has nearly doubled to more than 21,000 agents tasked with helping stem the flow of illegal migrants. As it’s expanded, the agency has drawn scrutiny from members of Congress and human-rights groups like the ACLU, which have raised concerns about abuses of force by agents who patrol, often alone, along ungoverned stretches of the nearly 2,000-mile southern border.

The report comes as Congress is preparing to debate a massive new immigration reform bill, which focuses first on securing the border. That includes providing a $3 billion for additional Border Patrol agents and Customs officers, as well as drones and other equipment, plus the staff to man it.

Requested last spring by 16 Democratic members of Congress, the inspector general’s report was long anticipated because the members thought it would be the first time the Border Patrol defined its use-of-force policy.

But the report failed to answer most of the major questions members of Congress asked, and the information that is provided is scarce on details.

All of the reforms outlined in the report are redacted.

“It was a little disappointing,” said Vicki Gaubeca, director of the Regional Center for Border Rights at the ACLU in New Mexico. “There’s no effort to actually change their policy in a way that tells their agents and officers that, should they not follow a good use-of-force policy, then they’re going to face consequences.”

Tracking the Use of Force

According to media reports, at least 19 people have been reported killed by Border Patrol agents, almost all of them along the U.S.-Mexico border, since 2010. No agents have been disciplined in any of the incidents.

But according to the inspector general’s report, the Border Patrol had conducted an internal review of 67 shooting incidents over an unspecified time period.

Customs and Border Protection established a standard use-of-force policy in October 2010, a process that took three years to develop and negotiate, in part due to negotiations with the agents’ union.  But it has never publicly released the policy.

It launched an internal review of that policy two years later, after Border Patrol agents killed several migrants, including an incident in October 2012, when an agent shot across the border into Mexico and killed a 16-year-old boy. The agent said he fired an estimated 11 shots in self-defense because the victim, Jose Antonio Elena Rodriguez, had thrown rocks at him.

The same month, a Border Patrol agent was killed when he mistakenly fired on two other agents, believing they were smugglers. The agents returned fire, killing him.

The 2012 internal review hasn’t yet been released, nor has an independent review commissioned from the Police Executive Research Forum, a nonprofit policy research group. Border Patrol told FRONTLINE it wouldn’t release the forum report because it is “law enforcement sensitive.”

The inspector general’s report found that the Border Patrol still has no way to track how many incidents its agents engage in or even how many investigations it’s doing into allegations of excessive force.  In its analysis, which involved records gathered from two separate databases, the inspector general’s office found 1,187 records of possible uses of excessive force between 2007 and 2012.

Agents and officers are required to report incidents involving deadly force or the use of less lethal devices to a supervisor within one hour, and to an internal reporting system within 72 hours. The data is recorded to determine whether to adjust policy or training tactics — but not for discipline or investigations.

The Department of Homeland Security, which oversees the Border Patrol and investigates allegations against employees, isn’t notified of these reports, nor is the Border Patrol’s own Use-of-Force Policy Division.

The Border Patrol notes that the inspector general’s report also said that the agency has improved how it deals with use-of-force issues. “CBP [Customs and Border Protection] is committed to ensuring that the use of force by our agents and officers, who put their lives on the line every day, is appropriate and consistent with applicable laws, agency standards and procedures,” said spokeswoman Jenny Burke in an e-mail. She said that CBP had agreed with all recommendations in the IG report and “nearly all” of the recommendations from the forum review.

Burke said that the agency has begun to make “enhancements” to its use-of-force program, including policies, training and review processes.

Some changes include improving the review and analysis of use-of-force incidents, and evaluating weapons and equipment used in the field. CBP is also engaged in a working group with human-rights groups, including the ACLU, to discuss best practices.

Rep. Raul Grijalva (D-Ariz.), one of the representatives who requested the study, said he and his colleagues would pressure the agency to release more details, in particular the independent report it commissioned from the forum. “It’s an issue of oversight for me,” he said. “The agency is mature enough to have the same kinds of disclosure, accountability and oversight that almost any police agency, not just federal, but those at the state and local levels, has.”

Compromised Training?

One of the concerns Congressional officials raised was whether the spike in hiring in recent years has compromised the training for Border Patrol agents.

Agents are required to undergo 19 weeks of basic training, which includes some physical drills and written tests. In the Border Patrol’s statement, it said it was going to work in six more days of scenario-based use-of-force training into its basic training.

Not all locations provided the required number of training hours, or mandated written tests during recertification training for less-lethal force, the report said. Others didn’t use the correct course of fire — that is, a specified number of shots in a set period of time — for firearms qualifications.

Because there is no formal process for these audits, corrections are only made on a case-by-case basis, rather than across training facilities.

The report also found that “many agents and officers do not understand use of force and the extent to which they may or may not use force.” CBP noted that this observation came from only one of the 32 training sessions audited, and was resolved right away.

“Hopefully It Means They’re Being More Careful”

After the 19 reported shootings last year, no fatal incidents have been reported in 2013, which could indicate officers are using more caution.

But without a regular reporting system, the only way to know what happens on the border is through media reports. There was a non-lethal shooting incident in June, for example, that became public only because it happened near a San Diego school, which alerted parents about what happened.

Gaubeca said the dearth of shootings this year was encouraging. “Hopefully it means they’re being more careful,” she said. But the San Diego shooting suggests there may be more to the story. “That’s the only thing that gives me pause.”

There are also plenty of other incidents that don’t rise to the level of lethal force.

The inspector general report found 808 incidents of reported use-of-force by the Border Patrol last year, though there are no indications of the circumstances or whether the force was warranted. The number is down from 1,029 reported in 2011.

A survey by the University of Arizona, published in March, which interviewed about 1,000 people from 2010-2012 who had recently been deported after being apprehended by the Border Patrol, found that most migrants interviewed said that “everyone” or “the majority” of agents treated them with respect.

But there were some problems. The study found that 11 percent said they were physically abused, and 23 percent reported verbal abuse by agents. And 37 percent asked for medical attention, but didn’t receive it.

“Even those who say everything is OK note some problems,” said Jeremy Slack, one of the study authors. “There’s an attitude among young men, it’s like, ‘They push you around, but I’m illegal, so it’s not really their fault.’ They kind of expect some rough treatment.”

The study said it was difficult to judge whether the abuses the migrants reported were a result of inappropriate behavior by individual officers, or connected to broader policies at the agency.

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