James F. Tomscheck was removed from his post as head of internal affairs for U.S. Customs and Border Protection last Monday, after it was reported that the 30-year federal law enforcement veteran had long failed to investigate claims of both physical and verbal abuse as well as excessive use of force by armed border patrol agents.
The Los Angeles Times reported that many people, including senior officials at the Department of Homeland Security, began to doubt Tomscheck’s ability to hold agents accountable after it was reported that out of the 809 abuse complaints made against agents working within 100 miles of the Southwest border between January 2009 and January 2012, only 13 resulted in disciplinary action.
The bulk of that “disciplinary action” simply required an agent to undergo counseling. Other forms of action included court proceedings against the perpetrator, oral reprimands and written reports.
Tomscheck has been temporarily reassigned to another position within Customs and Border Protection while an investigation occurs. It has been reported that in one case in which no action was taken against a border patrol agent, a pregnant woman claims to have suffered a miscarriage after she was kicked by an agent. Another involves a man who says an agent stomped on his back even after he was on the ground.
In an unusual move, FBI Director James B. Comey will assign an FBI agent — not someone within the agency — to replace Tomscheck. It is rumored that Tomscheck’s replacement will be ordered by Corney to be more aggressive when it comes to investigating claims of abuse.
While Tomscheck appears to be in the hot seat at the moment, the entire Customs and Border Patrol agency has been scrutinized since a February 2013 report from the Police Executive Research Forum found that border patrol agents intentionally put themselves in danger in order to justify the use of deadly force.
For example, instead of getting out of the way of a moving vehicle, the PERF report alleges that agents would fire their weapons at the vehicle and claim their lives were in jeopardy.
Given that Customs and Border Patrol — one of the largest law enforcement agencies in the U.S. — is one of the most secretive, there has been a push in recent years to determine how often Border Patrol agents mistreat human beings.
Through a Freedom of Information Act request, the advocacy group the American Immigration Council was able to obtain a 44-page list earlier this year regarding how often agents are disciplined. This was a huge feat, as the media and even Congress have historically struggled to obtain any information about the alleged mistreatment of individuals by Border Patrol agents.
The release of the data was applauded by some, such as Chairman of the Senate Foreign Relations Committee, Sen. Robert Menendez.
“We need accountability at Border Patrol,” said Menendez
Others such as Shawn Moran, vice president of the Border Patrol agents’ union, said that there are always a “few bad apples,” before arguing that the agents are well-intentioned, for the most part, and abuse is not widespread or condoned within the agency.
“Agents are doing a good job in terms of the sheer number of arrests they make,” Moran said.
“This is not a sterile business. It is law enforcement. Not everybody goes along peacefully,” he added, explaining that compared to the hundreds of thousands of people who have interactions with Border Patrol agents, 809 complaints is a relatively small figure.
But not many agree with Moran, including James Lyall, a staff attorney for the American Civil Liberties Union of Arizona, who said the problem is that “[t]here is no oversight and there is no accountability for agents who break the law.
“If a counseling session is the worst you will face, no wonder abuse goes unchecked,” he said.
Daniel E. Martinez, an assistant professor of sociology at George Washington University who studies unauthorized migration, agreed with Lyall that Customs and Border Protection agents are not properly trained or held accountable for their actions.
Martinez pointed to a survey he had previously conducted that found that 1 in 10 migrants are physically abused, punched, kicked or slapped by Border Patrol agents if they were found to be illegally crossing the U.S. border.
Following the revelation that use of force by Border Patrol agents was higher than the public and lawmakers had imagined, Border Patrol Chief Michael Fisher issued new rules in March that require agents to use non-lethal methods first — especially when people throw rocks at them — in order to reduce the number of officer-involved shootings.
Whether agents abide by these new rules will likely be part of future investigations, as the agency has doubled in size since 2004, but according to a report by the Congressional Research Service, the number of agents with relevant in-field experience has declined.