Bob Ortega

The Arizona Republic

PHOENIX -- Customs and Border Protection tightened restrictions on when and how agents and officers will be allowed to use deadly force — changes that, had they been in place, critics say, might have prevented many of the 45 deaths at the hands of agents on duty since 2005.

Following months of mounting public pressure, CBP Commissioner Gil Kerlikowske on Friday also released an uncensored, scathing report on the agency's prior use-of-force policies. That report, kept secret for 15 months, revealed that in at least two use-of-force deaths since 2010, agents violated CBP policies. The report also states that investigations into use of deadly force often lacked "diligence."

Kerlikowske also released CBP's new use-of-force handbook, which includes many — though not all — of the changes called for in the critical report.

Kerlikowske declined to say when or whether CBP would release the names of agents involved in deadly-force cases, the actions taken in such cases, or copies of videos that could show what happened. The release of names, details and video evidence is routine at many police forces around the country.

The new use-of-force policies require Border Patrol agents and Customs officers to avoid placing themselves in situations in which they have to use deadly force.

For example, the new policy spells out that agents are not to step in front of or block the path of a moving vehicle. They also are not to fire at rock-throwers unless they have a "reasonable belief" that there's an imminent danger of serious physical injury or death; when possible, agents are to seek cover or move back "out of the immediate area of danger."

The new policies require agents to carry and be trained in the use of less-lethal weapons. Previously, such weapons were optional. The new policies also require additional training and mandate the agency to investigate all incidents of use of deadly force, not just those that result in death or serious injury.

The use of Tasers is also restricted. Agents can use them only on people who are actively resisting and cannot shock anyone more than three times.

"This is a monumental victory for border communities advocating for transparency and policy reform," said Andrea Guerrero, co-chair of the Southern Border Communities Coalition, a group of civil-rights organizations that have been pushing CBP for greater accountability.

Had the Taser policy been in place, "Anastacio Hernandez Rojas would not likely have suffered the torture that he did and died as a result," said Guerrero. "Had the (vehicle) policy been in place, Valeria Tachiquin-Alvarado would not have been shot at and killed ... and the projectile policy would have prevented numerous deaths along the border, including that of Jose Antonio Elena Rodriguez."

Use-of-force deaths

Hernandez Rojas died after being beaten and shocked with Tasers five times at the San Ysidro border crossing in California in 2010. Tachiquin-Alvarado, a U.S. citizen, was shot 10 times and killed in San Diego by a Border Patrol agent who said she drove her car at him – a disputed account.

Elena Rodriguez, 16, was shot 10 times in the back and head and killed after one or more agents fired through the border fence into Nogales, Sonora, in 2012. As The Arizona Republic reported, it would have been nearly impossible for any rock thrower on the Mexican side to hit an agent standing at the spot along the fence from which the shots were fired.

The death of Hernandez Rojas, captured in two graphic cellphone videos aired in a PBS documentary, led 16 members of Congress to demand in 2012 that the Department of Homeland Security, the parent agency of CBP and the Border Patrol, investigate CBP's use-of-force policies and practices and whether agents were following them.

As part of its response, CBP commissioned the Police Executive Research Forum, an independent law-enforcement research group, to review its policies and 67 deadly-force cases, including those of Hernandez Rojas and Tachiquin-Alvarado.

But when CBP responded to Congress members' request last year, officials refused to release the PERF report; and they censored its recommendations from a report by DHS's Office of Inspector General.

In February, the Los Angeles Times reported that it had seen the report and that CBP rejected recommendations that agents be barred from shooting at vehicles unless the occupants were trying to kill them and barred from shooting at people throwing things that can't cause serious injury.

But the police-forum report goes further. When agents shot at rock throwers, "too many cases do not appear to meet the test of objective reasonableness with regard to the use of deadly force," it said. The report looked at four cases involving rocks thrown at agents on boats, and said "the tactics and strategies agents are using may unnecessarily put them in harm's way."

The report raised suspicions that in many vehicle-shooting cases, agents "intentionally put themselves into the exit path of the vehicle," to justify the use of deadly force and that "the cases suggest that some of the shots at suspect vehicles are taken out of frustration" when agents on foot see no other way to stop suspects.

In reviewing 25 cases in which agents shot at rock throwers, the report said "the more questionable cases generally involved shootings that took place through" the international border fence. Two or more of these cases were found by CBP to violate policy. CBP didn't comment on which cases, or what, if any actions were taken in response.

The report said that all use-of-force cases must be thoroughly investigated and that "lack of diligence was observed in some investigations." It charged that CBP made little effort to look at cases in which agents fired shots and injuries weren't confirmed, saying "This 'no harm - no foul' practice can lead to tacit approval of bad practices."

In most cases when agents used deadly force, the report noted, less lethal weapons hadn't been available. It said "in some cases, the use of such less lethal weapons may have reduced the risk to agents and prevented the need for deadly force." And the report called for improving the investigation of deadly-force cases.

New leaders bring change

The appointment of new DHS Secretary Jeh Johnson in December and Kerlikowske in March helped crack the opposition within DHS, CBP and Border Patrol leadership to releasing the PERF report and changing practices. Both Johnson and Kerlikowske promised Congress they would increase transparency and accountability at CBP, which, with more than 43,000 agents and officers, is the nation's largest federal law-enforcement agency.

Kerlikowske called the release of the police-forum report and the new use-of-force policy handbook "the beginning of a continuous review of our responsibility to only use force when it is necessary to protect people."

The National Border Patrol Council, the union representing Border Patrol agents, said it has agreed to let CBP implement the policy now, and bargain over any concerns it raises down the road. But council vice president Shawn Moran said "we're generally happy with the new use-of-force policy," and that the council's concerns are minor, such as details of when and what less-lethal weapons agents will be required to carry.

Members of Congress who have been seeking the report for more than a year greeted its release.

"It's a good step, and I give a lot of credit to Secretary Johnson," said Rep. Raúl Grijalva, D-Ariz.

Rep. Lucille Roybal-Allard, D-Calif., called the release of the report long overdue. "Now CBP's leadership must ensure that these reforms are fully implemented and that individuals who violate the agency's rules are held accountable," she said, noting that in 28 deaths since the beginning of 2010 no agent or officer is known to have faced any consequences.

Vicki Gaubeca, director of the American Civil Liberties Union's Regional Center for Border Rights in New Mexico, said she hopes this marks a new age of transparency for CBP, but that "the agency will require monitoring to ensure agents who violate these policies are held accountable."