Abuse and Use of Force at the Border

Physical abuse and use of force by U.S. Border Patrol agents have resulted in countless instances of migrant bodily harm, endangerment, and death. The KBI tracks these violations among the people we serve, and advocates for reforms to improve accountability, facilitate the complaint process, and promote justice for the families and individuals devastated by these tragedies. 

Last month, U.S. Border Patrol agent Lonnie Swartz was acquitted on second-degree murder charges for the shooting of 16-year-old José Antonio Elena Rodríguez in October 2012. While other officers in pursuit of drug smugglers that night took cover from rocks thrown over the border fence, Swartz, who testified to feeling threatened, aimed and fired 16 shots into Mexico; 10 bullets hit José Antonio in the back and head, resulting in his death mere blocks from the KBI comedor. Federal prosecutors have recently announced that they will seek a retrial of Swartz on manslaughter, a charge which deadlocked the jury in the original trial.

That charges were brought at all is unusual under these circumstances and a commendable departure from standard practice, but the case revives questions about use of force (lethal or otherwise), agent accountability, and recourse for victims and their families. [For more about this case, see: https://www.theguardian.com/us-news/2018/apr/23/border-patrol-shooting-jose-antonio-elena-rodriguez-lonnie-swartz and https://www.theguardian.com/us-news/2018/may/11/border-patrol-retrial-lonnie-swartz-jose-antonio-elena-rodriguez. ]

USE OF FORCE AND OTHER ABUSES: The U.S. Border Patrol’s use of force in apprehending individuals and patrolling the border has been a long-standing issue. According to KBI statistics drawn from interviews with deported people at the comedor, one in three migrants suffers abuse from Border Patrol officers during and after apprehension. From October 2015 to early March 2017, the KBI filed 49 complaints with Customs and Border Protection (CBP) on behalf of migrants. Ten complaints cited excessive use of force, six were for illegal searches and use of restraints on a minor, and two identified verbal abuse, both reported by women. The remaining complaints covered other violations: failure to inform individuals expressing fear of the asylum process (22), denial of medical care (12), family separation (10), and confiscation of belongings (3).

This breaks down to 18 instances of physical and verbal abuse, but all the complaints represent forms of intimidation. Some, such as deporting family members separately, deporting potential asylum seekers, and withholding money and cell phones, leave individuals stranded and expose them to the danger of physical harm or death after deportation. (Several complaints included more than one violation, and are covered in greater detail in the KBI’s 2017 report, Intake Without Oversight. A downloadable version can be accessed here: https://www.kinoborderinitiative.org/advocacy/.)

LETHAL FORCE AND LEGAL RECOURSE: With respect to lethal force, CBP confrontations have led to 40 deaths at the border since 2011 (Department of Homeland Security), many on Mexican soil and perpetrated by officers on the U.S. side. These cross-border shootings bring up legal and accountability concerns. Do constitutional protections apply? Can the offending officer be criminally charged with murder or manslaughter? Can the victim’s family sue a U.S. agency or particular officer for damages in civil court?

The answers have varied case by case, but generally have favored Customs and Border Protection (CBP), of which Border Patrol is a part. A volley of court rulings have considered these issues in the current case of 15-year-old Sergio Adrian Hernandez Guereca, who was unarmed and hiding behind a train trestle pillar during a rock-throwing incident in Ciudad Juarez on June 7, 2010; when he peeked out, he was killed by a border agent’s bullet. Though several cell phone videos confirmed that Sergio Adrian was not among the rock-throwers, a district court ruled that the Hernández Guereca family had no standing to file criminal or civil charges against the agent Jesús Mesa Jr. Then, after a three-member panel of the 5^th Circuit Court of Appeals ruled the family could bring a civil suit, the full court upheld the original ruling, stating that constitutional rights were not clear. Finally, the Supreme Court heard the case in 2017 and bumped it back to the appellate court where it awaits reconsideration. Meanwhile, Sergio Adrian’s parents still have no resolution almost eight years after their son was killed.

THE COMPLAINT PROCESS: In instances of physical abuse and injuries as well as other human rights violations (dog attacks, kicking, pushing, dragging, sexual assault, withholding food and more), individuals can file a complaint with CBP. Yet KBI surveys show that fewer than 1 in 12 people (or 7.7%) who have cause to file a complaint do so or even attempt to. Many are not aware that they have this right, and others believe that complaints make no difference. They have a point—of the 49 complaints noted above, the KBI received status notifications for 13; of those, two were substantiated and resulted in disciplinary action. In the other 36 cases, the KBI received notifications only to confirm receipt, investigation status, or forwarding to a particular internal department.

In addition to lack of responsiveness, the complaint process is rife with other obstacles. First, there are the overall conditions of short-term detention—overcrowded cells, cold temperatures, insufficient medical care, and lack of visitation to name a few—creating an environment that deepens the trauma detainees have already experienced, increases their vulnerability, and is unconducive to asserting one’s rights. Investigation of complaints as well as timeliness and transparency about their progress is inadequate, and complaint databases are poorly organized, catalogued, and shared among internal investigative bodies, making it difficult to discern patterns of abuse and address them. Finally, while the number of Border Patrol agents has quintupled to over 21,000 since 1992 (U.S. Border Patrol), internal affairs investigative and oversight departments continue to be understaffed.

RECOMMENDATIONS: The KBI offers recommendations for decreasing violations and improving accountability in our reports, Our Values on the Line (2015) and Intake Without Oversight. These include:

• Increased funding for complaint investigation, agent training, and oversight.
• Stronger independent and internal oversight mechanisms to address abuse and misconduct with adequate staffing for implementation.
• Improvements in officer training, with an emphasis on conflict de-escalation techniques, language and cultural competency, and trauma-sensitive approaches.
• Body-worn cameras with both audio and video for ICE (Immigration and Customs Enforcement) and CBP officers to provide evidence, particularly in remote areas, and with stipulations about preserving data and protecting victim privacy.
• A free multilingual complaint hotline accompanied by phone access at all detention facilities and prominently posted hotline signage on Border Patrol vehicles and ports of entry.
• Greater transparency and accessibility of the complaint and investigation process.
• Integration of Department of Homeland Security databases to track complaints and patterns of abuse.
• Improved short-term detention conditions.

CBP USE-OF-FORCE REFORMS: In response to the dozens of cross-border deaths and numerous incidents of bodily injury, CBP has evaluated ways to reduce use of force at the border and during apprehensions. As the agency has increased hiring in recent years, training standards and oversight have declined dramatically. Among other directives and changes, CBP is incorporating de-escalation techniques (to defuse tense and potentially deadly encounters), “virtual” simulators, and scenario-based training (with situations solicited from various NGOs, including the KBI) at their academy with quarterly “refreshers” at Border Patrol stations. They are also working to establish full Spanish-language capability at their call centers.

As of 2015, CBP instituted use-of-force incident teams (or UFITs, multi-office units designed to streamline investigations of force and criminal misconduct), make the process more interdepartmental, and provide more timely follow-up, suggested policy changes, and when necessary, referral for further review. Nevertheless, securing independent evidence of use-of-force allegations continues to be an obstacle. This is where body-cam footage can play a critical role. CBP has recently announced that they will begin to deploy body cams more regularly, a pledge that would not only offer more indisputable documentation of force, but could help to change the internal culture of the agency and behavioral expectations of its staff.

A proposed bill, the ICE and CBP Body Camera Accountability Act, introduced by Congressman Adriano Espaillat (D-NY) in March 2017 and endorsed by the Border Patrol union, would make body cams a legal requirement, directing that all ICE and CBP agents and officers wear and turn on body cameras for their entire shifts. Currently, the bill is still in committee.

ADVOCATING FOR THE RIGHTS OF NON-U.S. CITIZENS: The widespread nature of violations and their increasing frequency point to abuse and misconduct as systemic problems. Further, in its capacity as a binational organization, the KBI is familiar with the complexities of serving justice across borders and defending the rights of citizens from other countries. You can assist us in our advocacy efforts to improve the CBP’s use-of-force record and save lives by contacting your congressional representative. Let them know you support: (1) the Body Camera Accountability Act, (2) more funding for accountability, oversight and training rather than simply increased hiring, and (3) suitable penalties for violations and incidents of officer brutality. The KBI stands with the victims and their families to defend the rights of foreign nationals who have been injured and killed by CBP agents. As part of our mission, we continue to work for reforms of policies and protocols that treat people humanely and prevent future deaths.

NOTE: To read the KBI’s recent statement in response to the Elena Rodríguez verdict, go to:  https://www.kinoborderinitiative.org/kbi-stands-with-the-elena-rodriguez-family/.