U.S. Border Patrol Scrutinized For Increasing Fatalities

Shooting deaths of foreign national is up along the Southwest border. The agency has been called to modify its use-of-lethal-force policy. But it has a culture of secrecy and lacks transparency.

STEVE INSKEEP, HOST:

For people near the U.S. border with Mexico, the Border Patrol is part of life. You pass agents on the highway, or parked quietly by the border fence. Along with the security has come criticism for violence. In numerous incidents, agents are accused of shooting unarmed Mexicans, some of them said to be throwing rocks. The incidents are a sensitive subject for the agency. NPR's John Burnett learned just how sensitive.

JOHN BURNETT, BYLINE: The U.S. Border Patrol, with more than 21,000 agents, is the second-largest law enforcement agency in the United States, after New York City's. Working on the southwest border, often in remote back country, populated with bandits, smugglers and undocumented immigrants, the job presents unique challenges. A MORNING EDITION team witnessed the arrest of 18 migrants last month near Hidalgo, Texas for the Borderland series.

(SOUNDBITE OF DOOR CLOSING)

INSKEEP: One by one, the people were loaded into vans, and the agents loaded their belongings into plastic bags. Other agents continued searching the woods.

BURNETT: The Border Patrol says in recent years, conditions have gotten more dangerous here on the southern frontier, and violence against agents is on the rise. But fatalities caused by border officers have also increased sharply, prompting concern that the agency must improve its use-of-force policies and training. One recent independent review looked at 67 shooting incidents that resulted in 19 deaths between January 2010 and October 2012. The report, which was leaked to the Los Angeles Times, describes border officers shooting at moving vehicles and at rock throwers without sufficient provocation, and it criticized the agency's overall handling of officer-involved shootings. Senator Robert Menendez, a Democrat from New Jersey, has been a leading voice among 16 members of Congress calling for change.

SENATOR ROBERT MENENDEZ: Uniformity of what is the standard on the use of the force is incredibly important, because we see in some parts of the Border Patrol, where some kid on the other side of the border flings a rock and they get shot at, and another side of the border a kid flings a rock and, you know, nothing happens.

BURNETT: Responding to criticism, last month, the chief of the Border Patrol, Michael Fisher, released a directive reminding agents not to shoot at moving vehicles or rock throwers unless the agent believes his life is threatened. Many interpreted the directive as a significant change of policy. A typical headline in the L.A. Times read: "Border Patrol Restricts Agents' Use of Force." But officers don't interpret it that way, according to Shawn Moran, vice president of the National Border Patrol Council, the union that represents 17,000 agents.

SHAWN MORAN: We didn't see anything new in the directive. Any changes to the use-of-force policy would have to be negotiated with the union, and since that never happened, we view this as just a reminder to agents of what the policy is.

BURNETT: In fact, the directive restates what's already in the policy handbook: officers may use deadly force only when necessary - that is, when the officer has a reasonable belief that the subject of such force poses an imminent danger of death or serious physical injury to the officer or to another person. During a visit earlier this month I made to the Border Patrol Academy in Artesia, New Mexico, training supervisor Brian Yarges said the circumstances of every confrontation are different.

BRIAN YARGES: All that is based on, as far as when they would draw a weapon and when they would use force, is based off of officer's perception, is based off of the threat that they are presented with, severity of the crime and the actions of the subject.

BURNETT: I went there to interview the director and his deputy about the academy's evolving use-of-force training, but neither was permitted to speak to me on the record. So, I asked Yarges to go a level deeper, to get more insight into what the academy teaches young trainees about when to use deadly force or when to use non-lethal force, such as pepper spray or batons. This is the exchange that ensued with the agency's public affairs person, who oversaw my visit.

What are the hierarchy of responses to rock throwers...

UNIDENTIFIED WOMAN #1: We're not going to...

BURNETT: ...what is first action, second action or...

UNIDENTIFIED WOMAN #1: ...discuss the hierarchy or - OK. That's it. That's it.

BURNETT: I was then escorted out of the Border Patrol training academy.

UNIDENTIFIED WOMAN #1: That's it.

BURNETT: Transparency is another problem the Border Patrol needs to work on. Again, union Vice President Shawn Moran whose member-agents are part of the parent agency, CBP, Customs and Border Protection.

MORAN: You know, I sat on a panel last week, and I said that CBP has a legacy of secrecy. And I think that CBP can do a lot to alleviate the concerns by opening up the books and showing what is going on out there. And I think people would accept why agents had to use force if they knew more facts about these incidents.

BURNETT: Both the new Homeland Security Secretary Jeh Johnson and CBP Commissioner Gil Kerlikowske have pledged to make the agency more transparency. To that end, it made public a redacted copy of its use-of-force policy handbook. But they have much more work to do. An investigation by Homeland Security's inspector general urged the Border Patrol to better train agents in use of force and track citizen complaints better. Last year, the ACLU released its own list of 79 recommendations to bring Customs and Border Protection procedures more in line with the best practices of metro police departments. For instance, in most cities, when a police officer kills a citizen, a commander holds a press conference, the officer is named, he's often put on administration leave and the victim's family is updated on the progress of the investigation. When the Border Patrol kills someone, none of that happens. Chris Rickerd is policy counsel with the ACLU.

CHRIS RICKERD: CBP has its own responsibility to make clear what in the fatal and other use-of-force incidents it does in terms of putting officers on administrative leave and investigating and following up on these matters. That's a lot more transparent in urban police departments.

BURNETT: One of the special dangers faced by border agents that's different from a city cop is rock throwing. Mexicans throw projectiles from their side of the border at uniformed agents on the U.S. side, and the agents have to decide what to do - take cover, leave the area or use force. Since 2010, by the agency's count, officers have been assaulted with rocks 1,713 times. They have responded with deadly force 43 times, causing 10 deaths. One of the dead was Jose Antonio Elena. The 16-year-old high school student was shot and killed on a sidewalk in Nogales, Sonora by a border officer in October of 2012. The 911 caller describes an officer shooting from the Arizona side into Mexico.

UNIDENTIFIED MAN #1: (Spanish spoken)

UNIDENTIFIED WOMAN #2: (Spanish spoken)

UNIDENTIFIED MAN #1: (Spanish spoken)

BURNETT: Federal agents were reportedly being pelted with rocks when at least one of them fired through the international fence and struck Jose Antonio, who, witnesses say, was not throwing rocks and was not armed. The Mexican autopsy report describes 10 bullet wounds - six of them in his back. Through a translator is his 64-year-old grandmother, Taide Elena.

TAIDE ALENA: (Through translator) Because Jose Antonio did not deserve to die in such a cruel way. He was a good boy. He had dreams. He had hopes, and he was waiting to turn 18 so that he could join the military. So, what I want, what I hope, is for justice: justice for Jose Antonio, and for those who are guilty of shedding his blood.

BURNETT: As of today, 17 months later, there has been no information on who the agent is, what administration action was taken or the status of the FBI investigation into the death of Jose Antonio Elena. John Burnett, NPR News.

INSKEEP: We invited Border Patrol Chief Michael Fisher to talk about the agency's use of force, and we are working to schedule that interview. This is NPR News.

Copyright © 2014 NPR. All rights reserved. Visit our website terms of use and permissions pages at www.npr.org for further information.

NPR transcripts are created on a rush deadline by Verb8tm, Inc., an NPR contractor, and produced using a proprietary transcription process developed with NPR. This text may not be in its final form and may be updated or revised in the future. Accuracy and availability may vary. The authoritative record of NPR’s programming is the audio record.