Bob Ortega

The Arizona Republic

PHOENIX — Six months after promising greater transparency and accountability when its agents use deadly force, Customs and Border Protection continues to struggle to deliver on both counts.

Since 2004, Border Patrol agents and Customs and Border Protection officers have killed at least 46 people, including at least 15 Americans, while on duty.

On Friday, CBP's acting internal affairs chief, Mark Alan Morgan, in response to a question from The Arizona Republic, told reporters he was unaware of any agent or officer having been disciplined or terminated in any of those deaths.

A CBP spokesman said the agency couldn't immediately confirm or deny Morgan's statement. But, James Wong, who retired in 2011 as CBP's assistant deputy commissioner for internal affairs, separately confirmed to The Republic that none of the 20 agents or officers who killed people while on duty from 2008 through 2011 was disciplined internally or terminated.

Those cases include unarmed teens who were shot in the back by agents as they fled, agents shooting through the border fence into Mexico, and two in which unarmed men died after agents severely beat them, repeatedly pepper-sprayed them, or shocked them multiple times with stun guns.

In December, The Republic reported that no agents or officers had been held accountable by the Department of Justice or by civil or criminal courts in use-of-force deaths since 2005, even in highly questionable cases. The Republic investigation found that the lack of transparency made any internal discipline a black hole.

Earlier this year, Customs and Border Protection released a highly critical study of its use-of-force practices by the Police Executive Research Forum. CBP fought for 15 months to keep the report secret, releasing it only after it was leaked to the media.

That study examined 67 use-of-force incidents and concluded that too many deadly use-of-force cases weren't justifiable to a reasonable, objective observer, and that investigations often weren't thorough or careful.

CBP's Morgan said Friday that an agency task force had completed an initial review of the 67 cases. He said it identified 14 as needing further investigation. Just one of those cases resulted in a death.

But other questions about the investigation process remain.

Changes promised

Over the past two years, the use of deadly force by Border Patrol agents and CBP officers has drawn increased public and congressional scrutiny.

Earlier this year — after CBP's previously secret use-of-force policies were leaked — Department of Homeland Security released the policies.

Under pressure, CBP also announced policy changes to reduce deadly-force incidents. Agents were to avoid putting themselves in situations where they have no alternative to deadly force. And they were to fire at rock throwers only when they couldn't take cover and the rocks posed an immediate threat of death or serious injury, among other changes.

Since last spring, Homeland Security Secretary Jeh Johnson and CBP Commissioner Gil Kerlikowske have repeatedly promised greater transparency and accountability when agents or officers use deadly force. Morgan's task-force review is part of that process.

To date, however, CBP has not taken steps that are routine at most state and local police forces, such as identifying the agents involved or releasing the outcomes of specific internal investigations. Nor has it released the number of complaints filed, or any details of any cases investigated by internal affairs or the DHS inspector general.

And when agents are sued by victims' families, CBP and the Department of Justice continue fighting to have the agents' names kept secret.

"It just boggles my mind that DHS would hide this information," said Wong, the retired CBP assistant deputy commissioner for internal affairs. "We're not talking about terrorist activities or national security; we're talking about things the American public should be aware of, should have access to. For them to say we can't tell you how many people have been investigated for excessive use of force, well, I don't understand the rationale."

Friday, Morgan reiterated a CBP policy of keeping agents' names secret, saying there can be major threats to agents or their families.

CBP didn't respond to questions submitted separately about why, if agents who are identified are at risk, it cooperates with the National Geographic television program Border Wars, which routinely reveals agents' names, faces and where they work.

Names withheld

Agents' names have become public in 16 of the use-of-force deaths since 2005. Some were made public by court orders in civil suits, others by state and local police investigating the incidents.

"It's a knee-jerk reaction," to keep federal agents' names secret, said Kel McClanahan, executive director of National Security Counselors, an Arlington, Va., law firm specializing in national security, freedom of information and privacy issues.

McClanahan noted that Homeland Security and the FBI routinely seek to keep all agents' names from the public — even the names of officers who handle information requests.

"Rules lose a lot of their effective punch. If you never know what, if anything, is done to investigate a shooting, or to address any deficiencies in procedures involved in that shooting, then you have a kind of renegade agency," said Hyde Post, president of the National Freedom of Information Coalition, which advocates for open government.

Investigations thwarted

In at least two deaths, one in 2010 and one in 2012, investigators for Homeland Security's Office of Inspector General wanted to open investigations but were overruled by their superiors, according to documents recently obtained by The Republic after 22 months of Freedom of Information Act requests and appeals.

In May 2010, an unarmed Anastacio Hernandez Rojas, 42, died after he was beaten and shocked five times with a stun gun by a group of CBP officers and Border Patrol agents at the San Ysidro port of entry, south of San Diego. An Office of Inspector General supervisor in San Diego rejected the request by an inspector to open an investigation.

The case exploded publicly in 2012, when PBS aired two cellphone videos showing Hernandez Rojas lying face down on the ground with his hands cuffed behind his back as agents kicked and shocked him. Hernandez Rojas died after being transported to a nearby hospital. A civil lawsuit against the agents involved is pending in federal court in San Diego.

In March 2012, Alexander Arthur Martin, 24, burned to death after a Border Patrol agent fired a stun gun at him and his car exploded. Martin had been driving the wrong way on Highway 80 in Pine Valley, Calif. An OIG supervisor in San Diego twice rejected requests by an inspector to open an investigation.

The Hernandez Rojas case sparked congressional demands in 2012 that CBP address the use of deadly force by agents and officers. In response, Johnson and Kerlikowske said earlier this year that 67 use-of-force cases had been re-examined. Some of those cases are now under investigation by the Department of Justice's civil-rights division, though neither Justice nor CBP would say how many.

Last month, attorneys for the civil-rights division visited the spot in Nogales, Sonora, where teenager Jose Antonio Elena Rodriguez was shot 10 times through the border fence and killed by a Border Patrol agent in October 2012. The visit, first reported by Nogales International, appears to be one of at least five investigations being conducted by the civil-rights division.

CBP's Morgan said Friday that 11 deadly-force cases are under investigation by Justice or by local or state authorities.

Policy cited

In declining information requests by The Republic, DHS' inspector general cited open investigations by "other entities" into the death of Elena Rodriguez and the four other victims in cross-border shootings involving alleged rock-throwing: Sergio Adrian Hernandez Guereca, 15, in Juarez, in June 2010; Ramses Barron Torres, 17, in Nogales, in January 2011; Juan Pablo Perez Santillan, 30, in Matamoros, in July 2012; and Guillermo Arevalo Pedraza, 36, in Nuevo Laredo, in September 2012.

"Other entities" may be a reference to the Department of Justice, which is the only federal entity outside of DHS that would typically investigate such cases.

At least four times in the past three years, judges have rejected federal efforts to keep agents' identities secret — most recently, in the shooting death of Elena Rodriguez.

The Border Patrol said the agent who killed the 16-year-old was firing at rock throwers. Witnesses said Elena Rodriguez was walking down the street when other youths fled past him as the shooting began. The American Civil Liberties Union filed a civil complaint in June on behalf of Elena Rodriguez's mother, naming "John Doe" agents.

CBP disclosed the name of the agent to the ACLU on condition that it file its amended complaint under court seal. But, Wednesday, a U.S. District Court ordered CBP to justify keeping the name under seal.

"It is properly very difficult to seal courtroom documents," said ACLU attorney Lee Rowland. "There may be rare cases where the government can show a fact-based, particular threat to an officer's safety; but CBP doesn't have a sweeping right to withhold officers' names based on vague ... claims. ... That's all the more true when officers have been involved in killing another human being."

For his part, retired CBP official Wong said cases in which people fleeing were shot in the back remain the most troubling to him. "Border Patrol agents would say, 'They were throwing rocks.' I'd say, 'Why didn't you back up?' They'd say, 'You've never been an agent; you don't know what being rocked is like.' ... I'm not naive enough to say it's never justified; there are cases where it would be. ... But the physical requirement of running in one direction and throwing hard enough behind you to cause physical injury just ... confused me," he said.

"It was disturbing."