The nation’s largest federal law enforcement agency has new use-of-force rules. How much will change?
The San Diego Union-Tribune February 21, 2023
SAN DIEGO (Tribune News Service) — Last year, in an effort to fulfill his campaign promises of bold criminal justice reform, President Joe Biden issued an executive order he said would increase accountability for federal law enforcement agencies.
While many local police and sheriffs’ departments across the country had already reckoned with the social justice protests of 2020 by enacting modest policy enhancements, the nation’s largest law enforcement agency, Customs and Border Protection, and its parent agency, the Department of Homeland Security, had gone unchanged.
This month, DHS finally made its move. The department — an agency that includes CBP, Border Patrol, Immigration and Customs Enforcement, the Secret Service and 12 others with varying degrees of law enforcement power — announced updates to its use-of-force policy, citing the requirements laid out in Biden’s executive order.
Secretary of the Department of Homeland Security Alejandro Mayorkas said the policy aimed to advance values such as public trust, accountability and transparency. But critics and scholars say the policy updates fall well short of what’s needed for any kind of legitimate reform. One former Border Patrol agent turned prominent agency detractor called the updates “a joke.”
Human rights and border community advocates argue that lasting transformation — especially among the Customs and Border Protection officers and Border Patrol agents most commonly encountered in San Diego — would require at least two major changes: a stricter legal standard for the use of force, and a shift in militarized border enforcement culture.
“These new policies are not anywhere near enough,” Andrea Guerrero, executive director of the community organization Alliance San Diego, said. “The policy doesn’t protect life, it protects officers and agents.”
While CBP and Border Patrol have an extensive presence in the San Diego area and collectively employ roughly 50,000 officers and agents nationwide, the policy updates are not border specific. Law enforcement officers from various agencies under the DHS umbrella have jurisdiction at airports, border crossings and throughout the interior of the U.S. They investigate everything from financial crimes, fraud and human trafficking to immigration violations, illegal entry and terrorism. CPB and Border Patrol agents, including tactical teams, have even been deployed to police crowds of protesters in cities such as San Diego, Portland, Seattle and Washington, D.C.
The updated DHS policy, while only pertaining to law enforcement officers, is a department-wide protocol that each agency within DHS must now include in their own specific policies. But it doesn’t appear the updates have received much attention among active DHS employees, at least not yet.
Both a spokesperson for the San Diego-area CBP office and a representative of the union for local customs officers were unaware when contacted last week that DHS had issued a use-of-force policy update.
Once union officials read the updates, they said the policy didn’t appear to prompt significant changes for customs officers, whose primary job is to screen incoming travelers and cargo at land, air and sea ports of entry.
“This is something we’ve been doing for a very long time,” said Alfonso Ortiz, a CBP officer and treasurer of the National Treasury Employees Union’s San Diego-based Chapter 105.
For the union officials, this was good news, as they felt their members have already been meeting the higher standards. “We’re years ahead of the game,” Derrick Arnold, a CBP officer and vice president of NTEU Chapter 105, said.
Officials for CBP, the parent agency of Border Patrol, did not respond to questions about the policy updates or how they might be implemented here.
For critics such as Jenn Budd, the former Border Patrol agent turned detractor who wants to see the status quo altered, the updates were too incremental. “From a (Border Patrol) agent’s point of view, in an agent’s field operations, literally nothing has changed,” she said.
The required updates to the DHS use-of-force policy were laid out in Biden’s May 2022 executive order, which he issued two years to the day after the in-custody death of George Floyd. The order, aimed at increasing police accountability and public safety, highlighted policing disparities for people and communities of color.
“It is time that we acknowledge the legacy of systemic racism in our criminal justice system and work together to eliminate the racial disparities that endure to this day,” read part of the order. “Doing so serves all Americans.”
Among other things, the executive order mandated the creation of a national database aimed at tracking officer misconduct. It also directed the heads of all federal law enforcement agencies to reassess their internal investigation and discipline processes, as well as clarify their guidance on use-of-force standards.
The resulting DHS policy now bans officers from using deadly force against a person who is only a threat to themselves or property. It also requires increased use-of-force training.
The new policy also outlined limitations on the use of chokeholds and the carotid restraint, though CBP and ICE already had such limitations in their agency-specific policies.
“Trainers have been telling us that carotid chokes are not a part of our use-of-force policy for quite a while,” Arnold, the CBP officer and union vice president, said.
All local law enforcement agencies, including the San Diego Police Department and county Sheriff’s Department, banned the use of the carotid restraint in the weeks after the police killing of Floyd, who officers subdued with a neck hold.
But the updated DHS policy does not go as far as the local standards to outlaw such maneuvers. Like the CBP and ICE policies, it states that such actions can still be used, but only in situations in which deadly force is authorized, and not as a means to simply control a person who the officer believes is not complying or is resisting arrest.
“Chokeholds put lives at risk, and this policy still allows that wiggle room,” said Lilian Serrano, director of the Southern Border Communities Coalition, a human rights group. “They should have been (completely) prohibited.”
The new DHS-wide policy also codifies the use of no-knock entries, the controversial practice at the center of Breonna Taylor’s slaying by police in Kentucky in which officers enter a dwelling without first announcing their presence. The previous DHS policy did not address the use of no-knock entries, nor did those specific to CBP and ICE.
The new policy limits such entries “to situations where knocking would create an imminent threat of physical violence to the (law enforcement officer) or another person or only for evidence preservation in national security matters.”
Ortiz, the CBP union treasurer, said, “The employees we represent don’t do no-knock warrants.”
The new policy also adds requirements for the collection and reporting of use-of-force data, such as incidents when officers or agents use a dog against a person, or when they use a vehicle, weapon or any other object “that delivers a kinetic impact to a subject.”
The ‘reasonable’ standard
What the new policy does not change, and likely can’t change because of legal precedent, is the legal standard that dictates when law enforcement officers can use force. In the U.S., the standard is derived from the U.S. Supreme Court’s decision in Graham v. Connor, which established that use of force should be judged on its “objective reasonableness.”
Critics, including Guerrero from Alliance San Diego, argue that standard is too low, giving officers and agents too much leeway, and must be raised to meet international standards. A law enforcement code of conduct adopted by the United Nations in 1979 states that force must be used only when “strictly necessary” and based on the principle of proportionality.
“Instead of asking if it’s ‘reasonable,’ which is centering the officer, we should ask if it’s ‘necessary and proportionate,’ which centers the life at risk,” Guerrero said.
CBP officers and Border Patrol agents used force 973 times in fiscal year 2022, and this fiscal year is on track to exceed that, according to the agency’s data. Guerrero said that until the legal standard is raised, incremental policy updates will have little impact on such numbers.
A study published last year by University of California, Irvine sociologist Irene Vega, who interviewed more than 50 Border Patrol agents in California and Arizona, argued that Border Patrol agents’ perceptions of reasonable force are shaped by politics, law and culture.
“A sense of exceptionalism pervades the organization,” Vega wrote in “’Reasonable’ Force at the Border” for the academic journal Social Problems. She argued that internal messaging within Border Patrol paints the border as uniquely dangerous and gives agents an overly individualist view of objective reasonableness.
“These messages foster a combination of vulnerability and power among agents, who come to understand their work as disproportionately dangerous and see their use of force as largely justifiable,” Vega writes.
To illustrate, Vega pointed out that CBP inflates its assault statistics using an “atypical counting strategy” that, instead of simply counting the number of agents assaulted, multiplies the number of agents by the number of assailants and how many weapons, such as rocks, bottles and tree branches, they used. This, Vega writes, resulted in CBP reporting 1,431 assaults combined in 2016 and 2017, while the FBI reported 235 Border Patrol agents were injured in assaults during that period.
According to CBP, there were 692 agent assaults last fiscal year.
She also analyzed on-duty deaths of CBP agents and found that no Border Patrol agent has ever died from being struck with a rock. And yet, the agency considers what it calls “rocking” to be a potentially lethal assault that agents can answer with deadly force, which has resulted in at least 12 fatal shootings by Border Patrol agents since 2010.
Arnold, the CBP union vice president, said it’s easy for those who have never done the job to criticize law enforcement from the outside.
“The majority of the population might never get in a fight, might never experience the force we deal with on a regular basis,” he said.
Ortiz said their bargaining unit “is very satisfied with (CBP’s) training department and what the agency has been teaching.”
The Federal Law Enforcement Training Center is another component of DHS which trains law enforcement officers from more than 100 federal agencies. In its training documents, authorities repeatedly remind officers that, no matter how strict their own agency’s policy might be, they’ll ultimately be judged based on the objective reasonableness legal standard, not policy.
In her study, Vega pointed to a podcast conversation between one of the center’s use-of-force instructors and one of its legal chiefs that illustrates how federal law enforcement officers receive training on the issue “at the highest level.”
“Officers have more leeway than most of them probably realize,” the instructor says. “As long as they stay within that wide lane of travel established by the U.S. Supreme Court, objective reasonableness, their use-of-force actions are going to be lawful.”
©2023 The San Diego Union-Tribune.
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