DHS agency set to release border use-of-force policies
An independent report faults Customs and Border Protection's investigations of questionable shooting deaths involving its agents.
The spot where Jose Antonio Elena-Rodriguez was shot to death by Border Patrol agents on Oct. 10, 2012, is marked along the border fence in Nogales, Sonora.(Photo: Nick Oza, The Arizona Republic)
- Agency's lack of transparency criticized
- Border agents have killed at least 45 people since 2005
- Many involved shooting at people accused of throwing rocks
PHOENIX -- Customs and Border Protection will make public its use-of-force policies "any day now," Homeland Security Secretary Jeh Johnson told a U.S. House committee — a day before Thursday's leak of a report that charged the federal agency has failed to thoroughly investigate questionable deaths involving its agents.
Lawmakers and the media have been lobbing heavy criticism at CBP in recent weeks for its lack of transparency, especially over agents' use of deadly force in incidents on the Mexican border.
The independent report, which previously had been heavily redacted, also recommended, among other things, a ban on shooting at people throwing rocks at agents, according to the Los Angeles Times, which published an account of the leaked report.
Since 2005, Border Patrol agents and CBP officers have killed at least 45 people in use-of-force incidents while on duty, according to data collected by The Arizona Republic.
One-fifth of those deaths, including one two weeks ago near San Diego, involved agents shooting at people they accused of throwing rocks.
As The Republic reported in December, agents have not faced any public repercussions in any of those deaths, even in nine cases in which the justification for shooting seemed dubious or agents' accounts were directly contradicted by other witnesses or other law-enforcement officers.
Speaking at the House Homeland Security Committee hearing on Wednesday, Johnson said he is "interested in reviewing some of the recent cases myself to make sure we're getting this right."
In addition to releasing the use-of-force policy, Homeland Security officials have been considering potential changes about what circumstances justify the use of deadly force. It isn't yet clear when any changes to the policy would be announced.
Border Patrol officials have said that, under their current policy, they consider rocks and vehicles to be deadly weapons that justify lethal force.
However, unlike many other federal or state law-enforcement bodies, CBP has refused to make its use-of-force policies public.
Last fall, Homeland Security's Office of Inspector General released a heavily redacted report on CBP's use of force that found many agents and officers didn't understand when and how much force they are allowed to use.
Inspectors also said they couldn't figure out how many allegations of excessive force there had been, or how many CBP investigated, because CBP didn't track allegations or its own investigations.
The inspectors recommended changes in policies and in training; but some of their recommendations were redacted before the report was released. The report included recommendations and findings from an earlier review by an outside law-enforcement research agency, the Police Executive Research Forum. But the forum's findings and recommendations also were redacted before the report was released.
On Thursday, the Times said an uncensored version of the forum's report it had obtained blasted the Border Patrol's "lack of diligence" in investigating agents' use of deadly force. The forum report also questioned whether, in some vehicle shooting cases, agents had intentionally and needlessly put themselves in front of vehicles to justify the use of deadly force.
Homeland Security officials declined to discuss the forum report. Chuck Wexler, the forum's executive director, did not respond to calls or emails seeking comment.
Wednesday's hearing marked Johnson's first appearance before the House Homeland Security Committee since he was confirmed as Homeland Security secretary in December.
Johnson stuck to generalities in answering members' questions. He didn't respond to a request by Rep. Beto O'Rourke, D-Texas, that he release the forum report.
"I agree generally with the importance of law enforcement being credible and being transparent in the communities in which they operate," Johnson said.
But the lack of transparency at Homeland Security and CBP has been an ongoing issue. House and Senate members have been requesting unredacted copies of the Office of Inspector General report since shortly after it was released last fall, without success.
Unlike many agencies, CBP will not release the names of agents or officers involved in deadly use-of-force incidents. CBP officials have said that agents have been disciplined for using excessive force; but they have refused to say whether they have ever determined the use of deadly force not to be justified, or whether any disciplinary actions have been taken in any specific instances.
That includes the death in October 2012 of Jose Antonio Elena Rodriguez, a teen from Nogales, Sonora, who was shot 10 times in the back or head by one or more Border Patrol agents firing through the border fence.
The Border Patrol has maintained that agents fired in response to rock throwers.
But Elena Rodriguez's family have said he was walking to the convenience store where his brother worked when he was shot. And two witnesses on the Mexican side of the fence also said Elena Rodriguez was walking when other people, possibly the rock throwers, ran past just before the shooting began.
The FBI investigation remains open.