Did Border Patrol tell agents to not stop drunken drivers?

In recent days, an allegation that the Border Patrol told its agents in the Tucson Sector not to detain drunken drivers at their checkpoints along Interstate 19 and other roads has gone viral.

The Border Patrol has not denied the allegations. And both critics and supporters say the agency's legalistic, bureaucratic responses are feeding the fire by making Border Patrol leaders look like they are more concerned with avoiding being sued than with protecting lives.

On Feb. 13, the conservative website Judicial Watch first published portions of an alleged internal Border Patrol memo telling agents that they and the agency face a potential legal liability for detaining suspected drunken drivers but no liability for letting them go on their way.

"If you allow this driver to continue down the road and they kill someone, aren't you liable?" the memo asked, posing a hypothetical question.

The answer?

"There is no legal requirement for a Border Patrol agent to intervene in a state crime, including DUI ... therefore there is generally no liability that will attach to the agent or agency for failing to act in this situation," the memo said.

Even if state or local police ask agents to hold someone, the memo continued, "there is no duty to detain the alcohol-impaired individual. But if you do, this option can raise potential liability for the agent and the agency."

And if an agent detains a potential drunken driver on his or her own authority, that "poses the greatest liability for both the agent and the agency," the memo said.

Border Patrol response

Initially, Customs and Border Protection responded to reporters' questions with a written statement saying the memo was internal information and "inappropriately released."

The statement added that agents "are trained to exercise their professional judgment" when they see a possible drunken driver. The memo "does not direct agents to detain or not detain these drivers," it said.

CBP officials declined to answer any other questions, including why the memo was written or why officials would tell agents they're not liable if a drunken driver they allow through a checkpoint kills someone. The agency also wouldn't say whether agents have allowed drivers who may have been drunk through checkpoints.

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Art del Cueto, president of the Tucson Sector's local of the National Border Patrol Council, the union for Border Patrol agents, said he never saw the memo but believes it was up on TV monitors throughout the Tucson station that play information for agents.

"My understanding is ... this was up there, saying 'Hey, this is the law, this is the extent of what we can and can't do,' " del Cueto said.

Asked whether he's seen drunken drivers, he said, "I've been involved in that situation on checkpoints, and I've called local authorities. … I've never seen an agent let somebody go. I've always seen them call the local agency."

Bart Graves, a spokesman for Arizona's Department of Public Safety, said that "when Border Patrol agents suspect DUI, they do call us and we do assist them."

Graves said in eight years at DPS, he has never heard of an incident in Arizona where agents did not refer a suspected drunken driver to state troopers or local police.

Representatives for Yuma and Santa Cruz counties' sheriff's offices said they don't track calls from the checkpoints but said most of those calls would go to DPS first.

The Arizona Republic did not find any news reports of cases in the Tucson Sector in which a driver in a DUI-related accident had gone through a checkpoint.

Public-relations professionals' critique

Several public-relations professionals to whom The Republic forwarded the memo and CBP's responses were aghast.

"That is one of the most brain-boggling bits of communication I have been exposed to in a while," said David Leibowitz, who runs a public-relations firm in Phoenix. "You're telling people, 'I know you're a public-safety officer, but don't act in the interests of public safety.' "

As for CBP's complaint that the memo was an internal communication, "it's unfathomable to me that you would put out such a communication and not expect it to make its way to the outside world. In the 21st century, there is no such thing as an internal document," Leibowitz said.

"This is why lawyers don't do PR," said Stacy Pearson, principal at the public-relations firm Up Agency in Phoenix. "Encouraging anyone not to detain a drunk driver is absurd."

She added, "Most of public relations is peeking around the corner for the worst-case scenario — and the worst-case scenario here is as bad as it can get."

As The Republic has reported, agents have limited policing authority at the checkpoints, which are supposed to focus on checking people's immigration status.

Border Patrol agents can't issue traffic citations or arrest people for other criminal violations. But they do routinely detain suspects and call local or state law-enforcement officers.

However, in Vermont in 2013, a judge dismissed a DUI charge against a woman who had been detained by Border Patrol agents for more than an hour before a state trooper arrived and arrested her.

Judge Howard Van Benthuysen ruled that agents had no grounds to detain the woman because there was no cause to suspect she had committed a federal crime.

CBP's limitations on enforcing the law

The American Civil Liberties Union, which is suing the Border Patrol for alleged civil-rights violations at checkpoints, advocates strict limits to agents' authority. But even the ACLU's Tucson attorney scratched his head at the memo.

"The Border Patrol is not local law enforcement," James Duff Lyall said. "But that doesn't mean they are powerless to act in the face of drunk driving. They can and do call local law enforcement if they have reason to believe someone is intoxicated, and they should do that."

He noted that the Border Patrol hasn't been shy about having agents aggressively enforce other laws. In Yuma and Texas, the Border Patrol's zero-tolerance policy on drugs at checkpoint stops has inundated local prosecutors with so many cases that several counties now refuse to take minor cases from the agency.

In a further response to The Republic, CBP provided a statement noting that Border Patrol agents "are not peace officers under the laws of many states."

The statement added that the "Tucson Sector expects all agents to act in the interest of public safety should they encounter a possibly impaired driver."

Keith Yaskin, who runs a public-relations firm in Scottsdale that offers crisis-communications management, said the Border Patrol's responses were "lame."

"Drunk driving is an emotionally charged issue. Their responses don't acknowledge that. This is not the time to act like a robot," he said. "They missed a huge opportunity here."