WASHINGTON — The U.S. government has simultaneously released a highly critical external review of federal agents’ use of force along the U.S.-Mexico border as well as an updated policy handbook incorporating most of the review’s recommendations.
Advocacy groups and border communities are applauding the moves, unveiled last week by U.S. Customs and Border Protection. The agency has come under withering criticism in recent years, with agents having left more than 28 people dead since 2010 in incidents that have included widely questioned events. Further, critics say CBP management has failed to offer transparency around the subsequent investigations or, ultimately, any accountability for the deaths.
The CBP has been without a permanent head since before President Barack Obama took office. But when Commissioner R. Gil Kerlikowske was finally sworn in to that position in March, he pledged that he would bring with him a new era of transparency. Last week’s announcements regarding use of force are thus being seen as a key initial indication in this regard, including by Kerlikowske himself.
“Before my confirmation, I told Congress that transparency, responsiveness and communication are my hallmarks. I committed to an open dialogue between CBP and its stakeholders,” Kerlikowske, the former chief of police in Seattle, said in a statement last week.
“Today’s actions on CBP’s policies address my priorities for the agency and are a significant step in CBP’s continuing progress … This release and, most importantly, the policy and training changes they represent are the beginning of a continuous review of our responsibility to only use force when it is necessary to protect people.”
Those actions involved the release of a highly anticipated report commissioned by CBP but prepared by the Police Executive Research Forum, a Washington think tank. PERF handed over the document to the agency in February last year, however, and CBP leadership has since sat on the results — despite growing calls, including legal actions, for the report’s public release.
The agency likely stonewalled on the issue both because of the report’s highly critical conclusions and because it needed time to decide how to respond. PERF researchers looked at all uses of force by CBP agents between January 2010 and October 2012 — 67 cases in all, including 28 deaths. (A tally of border patrol-related deaths from 2005 through March, including details of the incidents, can be found here.)
“This has been a long time coming, and it’s a great step forward to see the PERF report and the new manual’s release, as well,” Juanita Molina, executive director of the Border Action Network, a coalition of rights activists, told MintPress News.
“The PERF report really echoed the deepening concern felt in the communities. But there is also the question: Could some of these deaths been prevented if the PERF recommendations were implemented 15 months ago?”
Some of the report’s most damning findings involve instances in which actions by federal agents appeared to escalate confrontations. This included agents putting themselves into, rather than taking themselves out of, harm’s way, and then responding with lethal force.
“It is suspected that in many vehicle shooting cases, the subject driver was attempting to flee from the agents who intentionally put themselves into the exit path of the vehicle, thereby exposing themselves to additional risk and creating justification for the use of deadly force,” the report states.
“The cases suggest that some of the shots at suspect vehicles are taken out of frustration when agents who are on foot have no other way of detaining suspects who are fleeing in a vehicle.”
Of the 28 deaths that PERF researchers looked at, 10 were U.S. citizens. Further, six were found to be on the Mexican side of the border when they were fatally shot, including three minors. The report also finds that nine individuals were merely throwing rocks when federal agents responded with lethal force.
“Two policy and practice areas especially need significant change,” the report states.
“First, officers/agents should be prohibited from shooting at vehicles unless vehicle occupants are attempting to use deadly force — other than the vehicle — against the agent … Second, officers/agents should be prohibited from using deadly force against subjects throwing objects not capable of causing serious physical injury or death to them.”
In a media release, the CBP states that its new use-of-force policies and accompanying handbook have incorporated “most of the recommendations” found in the PERF review and another by the Department of Homeland Security’s Office of the Inspector General. These include a new requirement to carry less-lethal weapons, new training in “safe tactics” and using use-of-force simulators, and regular future evaluations of related policies.
In responding to the PERF report’s central two recommendations, however, the agency appears to have been anxious not to tie its agents’ hands.
“The commissioner decided not to fully implement these two recommendations, evidently wanting more flexibility in the rules,” Chris Rickerd, a policy counsel with the American Civil Liberties Union, a watchdog group that had sued the CBP to release the PERF report, told MintPress News.
“To us, that’s very indicative of the real challenge to these changes. This now becomes a matter of implementation, of how people in the field understand the new use-of-force policy. Otherwise, there’s a danger that they could become too subjective.”
As such, much will now come down to the strength of the training regimen that the CBP creates for its agents on this issue, and how successfully the management is able to change the agency’s internal culture.
Yet the ACLU has long been pushing for a relatively simple step that Rickerd says is already being widely embraced by law enforcement departments across the country: requiring that on-duty border patrol agents wear cameras, equipped with certain privacy safeguards, to record all interactions.
“We feel this would really be a win-win, as wearing cameras would also weed out false accusations against CBP agents,” he said. “But in addition, we need to keep in mind that it’s only happenstance that the public has been able to see what took place in several of these tragic shootings.”
Without the presence of a random passerby with a camera, Rickerd notes, “there’s a real question whether many of these incidents would have come to light.”
Looking forward, there are also important questions on whether the CBP, under its new commissioner, will be able to increase the transparency around such incidents and subsequent investigations — and ensure accountability for such incidents.
Border Action Network’s Molina says her colleagues are already noting some indications of change in this regard.
“There’s been a marked shift in policy and implementation for the border patrol, particularly in terms of agents’ increasing their interactions with the communities,” she said.
“We’re also looking at a different level of transparency in the agency. Following a shooting that took place last week, for instance, we noticed that the name of the agent involved was publicly released — that’s something that didn’t used to happen.”
But, Molina continued, “Now we’ll really be watching to see if they’re actually following up on these cases — if there’s actually any outcome. Up to now, that’s been a huge disconnect.”
In December, an investigation by The Arizona Republic newspaper estimated that federal border agents had likely killed at least 42 people, including 13 U.S. citizens, since 2005. Further, the investigators found no public evidence of consequences for those incidents, including action from either the courts or any federal agency.
“Internal discipline is a black hole,” the report states. “There have been no publicly disclosed repercussions — even when, as has happened at least three times, agents shot unarmed teenagers in the back. That appearance of a lack of accountability has been fed by a culture of secrecy about agents’ use of deadly force.”
At a press conference on Friday, Commissioner Kerlikowske reportedly stated that his agency would “hold people accountable” and “do investigations” following injuries or deaths around CBP agents’ actions.
“Ultimately that will be a real test — these families deserve accountability,” the ACLU’s Rickerd said. “These cases, and how they play out in future investigations, are the real arbiters of whether this is a successful policy change.”