DHS-OIG report on Border Patrol “Use of Force Incidents”

The Office for the Inspector General (OIG) for the Department of Homeland Security (DHS) has released a report on “use of force incidents” by border patrol agents. The report indicates US Customs and Border Protection (CBP) has been keeping records that contain incomplete data, making it difficult to assess the extent to which agents have engaged in the “excessive use of force.”

In recent years, there has been an uptick in the number of shootings by Border Patrol agents, which have resulted in deaths. The report was produced in response to calls from members of Congress for an investigation after PBS aired a “Need to Know” program in April 2012 that focused on the May 2010 death of Anastacio Hernández Rojas, a 42-year-old immigrant.

As the American Civil Liberties Union (ACLU) described:

PBS obtained eyewitness video of what are alleged to be five Taser shocks administered by Border Patrol agents on a man handcuffed and surrounded by about a dozen agents, one of whom appears to have his knee on the man’s neck while at another point the words ‘quit resisting’ are heard over the prone man. The San Diego coroner’s office classified Mr. Hernandez Rojas’s death as a homicide, noting the following injuries in addition to a heart attack: ‘several loose teeth; bruising to his chest, stomach, hips, knees, back, lips, head and eyelids; five broken ribs; and a damaged spine.’

Members of Congress were concerned this incident was “part of a larger cultural problem at the Department.”

The OIG report does not specifically describe any incidents and provide details on what happened to officers involved. It is unclear whether the Inspector General even considered doing a full assessment that could determine whether the Department had a “cultural problem.” However, the report does contain a few nuggets, which should raise eyebrows.

Apparently, the OIG was “unable to identify the total number of excessive force allegations and investigations involving CBP employees” because there is no primary “use of force” designation for data entered into DHS’s case management system.

“Although these systems include a data field that assigns specific types of misconduct, such as excessive force, discrimination, abuse of authority, and other categories, to a primary allegation type, there is no primary use of force allegation designation,” according to the report.

DHS has two systems—the Enterprise Data System (EDS) and the Joint Intake Case Management System (JICMS). The report notes, “In JICMS, excessive use of force allegations are assigned to primary categories to include detainee/alien (physical abuse), detainee/alien abuse (other), detainee/alien abuse (medical issue), and death-detainee/alien/civilian (result of agency action). In EDS, primary categories for use of force allegations include civil rights/civil liberties or miscellaneous.”

The OIG examined 2,093 records containing “possible excessive force allegations” from JICMS. In examining JICMS data, the OIG was able to identify 1,187 records as “possible allegations related to excessive force,” which included “physical abuse (punching, kicking and pushing) during apprehension, and use of an electronic control device, baton or pepper spray.” However, 205 records were determined to not be “excessive force allegations.” And, with regards to 504 allegations, the OIG was unable to conclude whether they were “excessive use of force allegations.”

Data on the “intentional discharge” of weapons included 197 records from between 2009 and 2012. The OIG was able to identify 136 “possible use of force incidents involving the discharge of a weapon.” For 38 of the records, it was unable to determine whether they were “use of force incidents,” and for 22 other records, the OIG determined those were “not use of force incidents.”

“Many allegations” were “determined to be administrative—non-criminal misbehavior,” the report explains. These were “referred to management
for action.”

According to the report, “The OIG Office of Investigations first has the option to investigate or decline to investigate an allegation. If OIG declines, the ICE Office of Professional Responsibility (OPR) and then the CBP Office of Internal Affairs (OIA),  respectively, decide whether to investigate.”

A CBP Office of Training and Development Use of Force Policy Division (UFPD) audit apparently found that “many agents and officers do not understand use of force and the extent to which they may or may not use force.” (Although, CBP disputed the inclusion of this in the OIG report, believing this conclusion by the audit team had been properly addressed.)

There are redactions in the report where the OIG made recommendations that CBP is apparently not prepared to accept. This secrecy would seem to inhibit the ability of the OIG to provide oversight, even if it appears to be toothless and only willing to suggest CBP make the changes to policy it is willing to make.

While the OIG did suggest that CBP add a “use of force” indicator to data so it would be easy to tell how many times “use of force” by Border Patrol agents had occurred, that this problem even exists seems symptomatic of the institutional indifference to accountability for agents that use force aggressively and without reasonable justification.

Since 2010, twenty people have been killed by Customs and Border Protection, which is now the “largest law enforcement agency in the country,” according to NPR. Few of these cases have been resolved. No agents have been held accountable for the deaths.

NPR reported in April that it was aware of “numerous cases that are either unresolved or still secret after years. Sometimes the investigations are done by local law enforcement, sometimes by the FBI.” And, “The names of the agents involved are often not released — which means victims and their families can’t move forward with civil suits in the absence of criminal charges.”

Sergio Adrian H. Huereca was shot by a Border Patrol agent in June 2010 when he was on the “Mexican side of the Rio Grande canal between El Paso and Juarez. He peeked from behind a pillar on the Mexican side. According to an agent, the boy threw rocks and so he shot Hernandez in “self defense.”

Another example is Jose Antonio Elena Rodriguez, who was killed when Border Patrol agents on the US side fired their weapons on a young group of people near Nogales, Mexico. He was hit with several bullets and died right in front of a doctor’s office. The agents claimed they had told the young people to stop throwing rocks at them.

The ACLU has suggested that agents use “body-worn cameras” to reduce the number of incidents. This would help address the systematic use of excessive force by Border Patrol by providing video that not only protects officers from being assaulted but also makes it possible to hold officers accountable for shootings.

The idea of having Border Patrol agents wear cameras does not appear to have been something the OIG bothered to explore.

Kevin Gosztola

Kevin Gosztola

Kevin Gosztola is managing editor of Shadowproof. He also produces and co-hosts the weekly podcast, "Unauthorized Disclosure."