Border agency watchdog censors recommendations to curb deadly force

A man walks along the border fence in Tijuana, Mexico, near where a U.S. Border Patrol agent shot Mexican citizen Edgar Ortega in 2008. Authorities said Ortega was throwing rocks at agents.

Credit: Guillermo Arias/Associated Press

It’s one of the U.S. Border Patrol’s most controversial practices: shooting at migrants and suspected drug runners who throw rocks and other objects at agents. Many law enforcement experts say the best option is to take cover or move elsewhere when these “rocking” incidents don’t pose a deadly threat, rather than use lethal force.

A respected law enforcement think tank – hired last year by parent agency U.S. Customs and Border Protection to review the Border Patrol’s practices – quietly recommended restraint when agents encounter rock throwers who don’t pose an imminent threat of serious injury or death.

But when the Department of Homeland Security’s inspector general released its long-awaited report in September on the Border Patrol’s use of force, officials blacked out that call for holding back in rocking incidents, among other recommendations, according to an uncensored copy of the report reviewed by The Center for Investigative Reporting.

The censored report highlights how the Department of Homeland Security has attempted to mute the contentious debate surrounding the Border Patrol and Customs and Border Protection as a spate of agent-involved shootings has left more than 20 people dead since 2010.

William Hillburg, a spokesman for the inspector general’s office, declined to comment on the redactions and denied an interview request. He wrote in an email that the report was “redacted due to deliberative material.”

The watchdog’s use-of-force report said the redacted proposals were “under consideration for approval” by Customs and Border Protection’s acting commissioner, Thomas Winkowski.

Congress asked the inspector general to review the agency’s training and policies on use of force in spring 2012. The inspector general borrowed the redacted material from a 2013 report that Customs and Border Protection commissioned from the Police Executive Research Forum, a Washington-based law enforcement think tank.

Agency officials ordered the outside review after a rash of fatal shootings, including the October 2012 death of Border Patrol Agent Nicholas Ivie, who was killed after mistakenly exchanging gunfire with other agents while on patrol in Arizona.

The think tank report, portions of which were shared with The Washington Post and CIR, also recommended that Customs and Border Protection “train agents to de-escalate these encounters by taking cover, moving out of range and/or using less lethal weapons. Agents should not place themselves in positions where they have no alternatives to using deadly force.”

Only the inspector general’s redacted report has been made public, raising questions about whether the department watchdog is holding back from embarrassing or politically damaging the agency it is supposed to police. The inspector general’s obscuring of the outside recommendations in its own report comes as the Border Patrol is under intense scrutiny for its use of deadly force.

In a written statement provided to The Post and CIR, agency spokeswoman Melanie Roe said the agency already has begun to take steps to implement the vast majority of the recommendations, but the report remains for internal use.

“CBP is committed to engaging with stakeholders and the public to improve trust and mutual understanding on this issue,” she said. 

R. Gil Kerlikowske, the nominee for Customs and Border Protection commissioner, signaled during a nomination hearing this month before the Senate Finance Committee that he would push for more transparency with the agency’s use-of-force policies, if confirmed. He did not directly answer whether he would publicly release the think tank report or what recommendations the agency is implementing.

“Transparency and … use of force in any law enforcement agency is critical,” Kerlikowske said in response to questioning by U.S. Sen. Robert Menendez, D-N.J. “If you don’t have the trust and the cooperation of the people you serve and they don’t understand or they’re not knowledgeable of your policies, it makes that trust and cooperation very difficult.”

The Border Patrol vigorously has resisted calls to place limits on deadly force against rock throwers, who often try to distract or retaliate against agents along the Southwest U.S. border.

Agents say that when migrants or suspected drug runners hurl rocks at them, it could be lethal. To impose restrictions on when and how agents can defend themselves would, they say, result in disaster.

Such confrontations have ended in fatal shootings, including the killing of minors across the international boundary from Arizona and Texas into Mexico. No agents have been killed by thrown rocks.

Michael J. Fisher, chief of the U.S. Border Patrol, rejected two of the think tank’s main recommendations in an exclusive interview with the Associated Press published in November. His disclosures to the AP are the only public statements the agency has made about the report. Fisher told the AP that the agency did not agree with restrictions on using deadly force against rock throwers and assailants in moving vehicles.

People familiar with the think tank report say Fisher mischaracterized the rejected recommendations. Human rights groups, police scholars and consultants have questioned the agency’s stance on shootings and pushed for a public release of the agency’s use-of-force policy. Customs and Border Protection released a redacted copy of the handbook in response to a federal Freedom of Information Act request.

CIR obtained a complete copy of the 2010 policy handbook, the most recent version. The think tank recommendation to not shoot people who don’t pose an imminent threat of death or serious injury to agents or others closely follows the agency’s own policy on the use of deadly force. 

“Authorized Officers/Agents may use deadly force only when necessary, that is, when the officer/agent has a reasonable belief that the subject of such force poses an imminent danger of death or serious physical injury to the officer/agent or to another person,” the agency’s use-of-force policy says.

As far as shooting at moving vehicles, the police think tank’s review suggested: “Agents shall not discharge their firearms at or from a moving vehicle unless deadly physical force is being used against the police officer or another person present, by means other than a moving vehicle.”

According to the agency’s handbook, an agent or officer may use deadly force against someone in a moving vehicle if he or she has a reasonable belief that the person poses an imminent danger of death or serious injury and “the hazard of an uncontrolled conveyance has been taken into consideration before firing.”

That was an issue in August 2012 when Border Patrol agents in Calexico, Calif., about 120 miles east of San Diego, shot at a vehicle they suspected of being involved in human smuggling as it fled toward Mexico, according to a local news account.

The inspector general also blacked out seemingly innocuous information from its report, labeled “For Official Use Only.” Those redactions included the number of total recommendations made by the think tank – 55 – and even agency actions that the review’s authors applauded, such as the use of a computer-generated mapping program that helps Customs and Border Protection study use-of-force incidents.

U.S. Sens. Claire McCaskill, D-Mo., and Ron Johnson, R-Wis., levied allegations in 2013 against the then-top official in the inspector general’s office, Deputy Inspector General Charles K. Edwards, of being susceptible to political influence. Edwards left his post late last year and took a reassignment with a different office within the Department of Homeland Security.

Edwards’ predecessor, Richard Skinner, who retired in 2011, said that he had not seen the report but that during his tenure, the office would redact information only if the requesting agency presented a justification that was “compelling and convincing.”

“I would never redact something because it was embarrassing to the agency,” he said. “The facts speak for themselves. You primarily redact for privacy, law enforcement or national security purposes.”

The National Border Patrol Council, the union representing more than 17,000 agents, echoed Fisher’s rejection of the recommendations to stop shooting at rock throwers and moving vehicles.

In an interview, Shawn Moran, a national vice president and spokesman for the union, said the Border Patrol’s strategy to put pressure on unauthorized border crossers by placing agents close to the layered border fence contributes significantly to rock-throwing incidents and the agents’ response of force.

“When our agents are stuck between the primary and secondary fence, a lot of times, they don’t have anywhere to go” to take cover, he said. “I think rockings would dramatically decrease” if the agency jettisoned the strategy.

Josiah Heyman, a University of Texas, El Paso anthropology professor and co-author of a recent report on the Border Patrol that focused on migrant abuse, said the agency has a long tradition of bucking transparency and accountability, which has limited the public debate on issues such as appropriate use of force.

“Accountability is absolutely fundamental in this whole story,” he said, adding that the research forum is a sophisticated organization and it would be “surprising if they gave inappropriate recommendations. That’s not their style.”

This story was edited by Robert Salladay and copy edited by Nikki Frick and Christine Lee.

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