Head of US border agencies revises lethal force policy

By TIM JOHNSON | McClatchy Foreign Staff | Published: May 31, 2014

MEXICO CITY — The federal agency in charge of U.S. border security on Friday issued a revised handbook on when its agents may use lethal force, adopting changes aimed at reducing dozens of killings that have generated a handful of lawsuits and cast agents as quick to pull their triggers.

Customs and Border Protection Commissioner R. Gil Kerlikowske also released a blistering report that had been kept secret for more than a year that lays out how some agents had taken actions to justify firing their weapons, including placing themselves in the path of moving cars or failing to retreat from rock throwers.

Kerlikowske released the revised handbook and the once-secret report in a move he said would address the “need for openness and transparency” at his agency — the largest federal law enforcement arm — and bring about “better public trust.”

But he declined say when his office would release the names of agents or officers involved in fatal shootings or the records relating to any possible previous instances of lethal force. Such a practice is common among city and state law enforcement agencies.

Nor would he say if the department would ever release surveillance video that might clear up cases in which agents had drawn their weapons and fired at migrants or U.S. citizens, sometimes through a border fence.

He said agents of the U.S. Border Patrol and officers of Customs and Border Protection must comply with revised policies that call for use of less lethal force whenever possible.

He also said the agencies, which are part of the Department of Homeland Security, no longer will end probes into cases of lethal force prematurely or drag them out over years.

A recent report by the American Immigration Council, an immigration watchdog, found that 97 percent of abuse complaints lodged against Border Patrol agents and Customs and Border Protection officers resulted in no disciplinary action once an investigation had been completed. Many cases were unresolved after as many as five years, the report said.

“We will hold people accountable. We will do investigations,” he said.

Kerlikowske refused, however, to set any rules about when agents can use deadly force against rock throwers, saying that after he had visited the scene of one killing near San Diego earlier this year, he came away believing agents needed some flexibility.

“To have a hard and fast rule that would ban the use of deadly force for them to protect themselves against rock throwing, I did not think would be appropriate,” Kerlikowske said.

Border Patrol chief Michael J. Fisher said March 7 that rock throwers had pelted agents 1,713 times since 2010, causing them to fire their service weapons 43 times, killing 10 people.

The American Civil Liberties Union says that “at least 28 people” have died since January 2010 after lethal encounters with Customs and Border Protection officers or Border Patrol agents. At least 10 victims were U.S. citizens, and three were minors.

In six cases, Border Patrol agents fired through the border fence and killed people standing on Mexican soil, the ACLU says, a practice that was explored in depth in a McClatchy report on one of those killings, that of 16-year-old Jose Antonio Elena ,who was shot repeatedly in the back through the border fence that divides Nogales, Ariz., from its like-named twin on the Mexican side in October 2012.

The ACLU filed a lawsuit against Customs and Border Protection last week demanding public release of the secret report from February of the Police Executive Research Forum, an independent think tank that reviewed 67 cases of lethal force by Customs and Border Protection and the Border Patrol.

“The revised policies issued today are a step in the right direction,” said Ruthie Epstein, a policy analyst at the ACLU’s Washington office.

Another ACLU analyst, Chris Rickerd, said it is imperative that the agencies involved in protecting points of entry and the border conduct thorough probes of lethal incidents and make the results public.

“If you don’t have an objective account of the facts, you can’t verify what happened and you can’t do a proper investigation,” Rickerd said.

The 21-page Police Executive Research Forum report is withering in its condemnation of how some border agents and officers put themselves in harm’s way in order to justify drawing their weapons and shooting. The report urged additional training for Border Patrol agents on safe tactics and encouraged the use of less-lethal methods, including pepper-spray munitions and controlled tire deflation devices.

The report suggested that border agents put protective cages or screening on boats and vehicles to shield them from rock throwers and called on agents to use helmets with face shields.

In no instance should an agent fire his weapon at a moving vehicle unless its occupants threaten him or her with something other than the car, it said. Rather, agents should get out of the path of the oncoming vehicle.

“It should be recognized that a 1, 2 ounce ... bullet is unlikely to stop a 4,000-pound moving vehicle, and if the driver of the approaching vehicle is disabled by a bullet, the vehicle will become a totally unguided threat,” the report said.

The revised Customs and Border Patrol use-of-force manual says officers may not shoot at vehicles merely fleeing a scene, nor may they use firearms to disable vehicles or aircraft. It also tells them to “avoid standing directly in front of or behind” a vehicle.

It tells agents subject to rock throwers to consider “measures such as seeking cover or distancing themselves from the immediate area of danger.”

Kerlikowske said the Border Patrol, which has about 21,000 agents, is still studying how to equip its employees with lapel cameras but is “intent in trying this out” once it irons out legal issues of privacy, for instance, in cases involving migrants who are abused by smugglers.

“It is not only a technology issue that they are wrestling with, but it is also an issue of privacy, confidentiality and data storage,” he said.