CBP Revises Use-of-Force Rules in Response to Report on Border Shootings

Virtually everyone agrees that we desperately need to modernize our immigration system, but, for the past several years, politicians who insist on “securing the border first” have held the necessary reforms hostage. The cost of placating this constituency has been high, whether one counts the billions spent on physical barriers, patrol aircraft, electronic sensors, or the surging roster of government personnel needed to operate all of it – not to mention the burgeoning prison-industrial complex that houses those apprehended for immigration violations.

Beyond the financial costs, there is a significant human toll to consider: increased border enforcement has pushed human smuggling routes further into the desert, often with deadly results. Less well-publicized, until recently, is the number of fatal shootings that have occurred along the border, cases in which Customs and Border Protection (CBP) officers fired their weapons while pursuing would-be border crossers or rock-throwing teenagers who were otherwise unarmed. [See After Shootings, Extended Silence: What the Border Patrol Hasn’t Said, by Steve Inskeep, National Public Radio, 09.Jun.2014.]

Under pressure from several members of Congress, CBP commissioned an independent review of these incidents – and of the use-of-force policies in place at the time. The review was conducted by the Police Executive Research Forum (PERF), a Washington-based think tank that provides research-based guidance on law enforcement policies and best practices. The PERF study was completed in February 2013, but the results were not made public until late May 2014, when CBP also released a series of reforms to its use-of-force policies, promulgated in response to the PERF report. [See U.S. Customs and Border Protection Use of Force Review: Cases and Policies, Police Executive Research Forum, Feb.2013, and, Use of Force Policy, Guidelines and Procedures Handbook, U.S. Customs and Border Protection, May.2014.]

The PERF report addressed two areas of special concern, where use of excessive force was found to be avoidable: incidents in which officers fired into moving cars, or at people throwing “objects not capable of causing serious physical injury or death to them.” To prevent similar incidents in the future, PERF recommended several changes to CBP’s use of force rules.

  • Better reporting – improve reporting of all rock-throwing incidents, and other assaults on border agents, to provide a better sense of the nature, frequency, and intensity of threats CBP officers encounter in the course of their work.
  • Mandatory investigation – of all uses of deadly force, because, PERF argues, bad practices may arise from a “no-harm-no-foul” environment in which use of force is only investigated when death or serious injury occurs.
  • Provide less-lethal weapons to officers, so they have alternatives other than either retreating or using deadly force.
  • Provide better protection from rock attacks – provide CBP officers with helmets, with face shields, and protective cages / screening on their boats and patrol vehicles;
  • Restrict officers from shooting into vehicles “unless deadly physical force is being used against the police officer or another person present, by means other than a moving vehicle.”
  • Train officers to de-escalate conflict, and to take cover and/or move away from rock throwers, using deadly force only when rock throwers “are capable of causing serious physical injury or death to [the officers].”

For its part, the CBP Use of Force policy contains a section entitled “Use of Safe Tactics,” which enjoins its agents to “employ enforcement tactics and techniques that effectively bring an incident under control, while promoting the safety of the officer / agent and the public, and minimizing the risk for unintended injury and/or property damage.” Lest there be any doubt, it states, further down the page, that “Authorized officers / agents should, whenever reasonable, avoid placing themselves in positions where they have no alternative to using deadly force.”

No one disputes that America’s southwestern borderland can be a dangerous place: the terrain is singularly unforgiving, and it’s crisscrossed regularly by smugglers of people and illicit drugs and weapons. That said, in securing this area, CBP has an obligation to avoid unnecessary uses of force that make it even less safe. We commend CBP’s leadership for its willingness to bear public accountability for the agency’s past mistakes, and for efforts being made to rectify them, going forward. We hope that by tightening the use-of-force guidelines, the agency will better protect CBP officers and the public on both sides of the border.

Copyright © 2014, MURTHY LAW FIRM. All Rights Reserved

Disclaimer: The information provided here is of a general nature and may not apply to any specific or particular circumstance. It is not to be construed as legal advice nor presumed indefinitely up to date.