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Is Border Patrol finally addressing its excessive-force problem?

For the last several months, Border Patrol has come under increasing scrutiny for its agents' use of excessive force. But it was withholding what many considered to be the "smoking gun" proving that Border Patrol had a systemic problem: an independent review of Border Patrol's use-of-force policies conducted last year.

Now, Border Patrol has finally published the full independent report — along with a new, updated use-of-force "policy handbook." The implication: Border Patrol is finally ending a dark chapter of agent misconduct and use of force, and is genuinely looking to turn the page.

But the report also confirms just how much abuse the agency has to reckon with.

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A memorial for an immigrant who died crossing the border. David McNew/Getty

the full, leaked report showed what officials who oversee border patrol had been trying to hide

The independent report found fifteen cases of agents shooting into cars — in some cases, agents would step into the path of a car that was trying to flee, then shoot at the vehicle once they were in its path. It also found cases of agents shooting through the border fence at Mexicans who were throwing rocks. Some agents, the report found, shot at vehicles or rock-throwers not because their lives were threatened, but merely out of "frustration."

Even worse, subsequent reports have found that Customs and Border Protection had a terrible track record in disciplining agents after use-of-force complaints were filed.

It's clear that for the last several years, Border Patrol agents have been initiating violence far too often, and being disciplined far too rarely. Now, the officials who oversee Border Patrol agents are acknowledging those facts.

More agents, more misconduct

Misconduct among Border Patrol agents, especially on the southwestern border, has become a more pressing concern in the last several years simply because there are so many more agents.

US Customs and Border Protection, the agency that oversees the Border Patrol, was ordered by Congress to put more boots on the ground on the southwest border — both at road crossings to check people entering the country legally (those are called "ports of entry," and are operated by the agency directly) and along the border between those spots, to catch people entering illegally. The latter is Border Patrol's job.

From 2005-2012, the number of Border Patrol agents on the US-Mexico border increased by over two-thirds:

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And that hiring spree wasn't accompanied by more funds for employee oversight. With limited resources, Customs and Border Protection focused on preventing corruption among border guards and keeping up with a Congressional mandate to issue polygraph tests to all new hires, not monitoring agents' use of violence.

an unarmed teenager in Nogales, named Jose Antonio Elena Rodriguez, was shot 10 times by agents firing through the border fence

The good news is that corruption hasn't become a systemic problem. There have been a couple of cases, but the rate of agents being reported for corruption hasn't increased at all throughout the hiring surge. (Among other things, the Border Patrol's policy of stationing agents at least 100 miles from their home appears to have helped keep corruption low.)

But while their agency minders weren't looking, the Border Patrol developed an excessive-force problem. The Arizona Republic found that at least 42 people were killed by Border Patrol agents since 2005. In 2010, a man named Anastasio Hernandez Rojas died in Border Patrol custody after being tased. In 2012, an unarmed teenager in Nogales, named Jose Antonio Elena Rodriguez, was shot 10 times by agents firing through the border fence. After a PBS documentary on the Rojas death, including cellphone video footage of his tasing, emerged in 2012, Sen. Bob Menendez (D-NJ) asked the Department of Homeland Security to investigate. He wanted to know how the Border Patrol's use-of-force policy was being implemented — and what happened to agents who used excessive force.

At the time, Border Patrol didn't actually have a category in its internal reporting system for use-of-force incidents. It didn't seem to be a big concern. So government inspectors had to make some educated guesses, and ultimately identified 1,187 "possible" excessive force incidents between 2007 and 2012, including 136 involving a fired weapon. At the same time, an outside group, the Police Executive Research Forum, conducted an external review of 67 shooting incidents over the same period, 19 of which resulted in death. That was the review that was published in redacted form, along with the government's report, in September 2013.

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A Border Patrol agent. John Moore/Getty

Customs and Border Protection agency standards theoretically require Border Patrol agents to use "the lowest level of force necessary" to resolve any situation. However, the old standards said that "because of unique circumstances and individual differences in every potential confrontation," it's okay for two different agents to have different reactions to the same scenario. In the policy handbook released on May 30th, the phrasing was changed — "confrontation" was replaced by "situation," for example — but the point remained: what level of force is "reasonable" is partly up to the individual agent.

And in the past, that standard has made it difficult to tell when management decides that an agent has crossed the line. The unredacted Police Executive Research Forum review, which came out in May, showed Border Patrol agents doing things most people wouldn't consider a "reasonable" response. "The cases suggest that some of the shots at suspect vehicles are taken out of frustration when agents who are on foot have no other way of detaining suspects who are fleeing in a vehicle. Most reviewed cases involved non-violent suspects who posed no threat other than a moving vehicle," the group wrote. In shooting at vehicles and rock throwers, the report says, "It is clear that agents are unnecessarily putting themselves in positions that expose them to higher risk."

Can Border Patrol get better at keeping its agents in line?

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Above right photograph: A Border Patrol agent coordinates with a helicopter crew. (John B. Carnett/Popular Science)

In fairness, it's possible that in some of these cases, the Border Patrol itself found that the use of force was not justified and took internal action. "Agents are subjected to incredible scrutiny," an attorney for the Border Patrol agents' union told the Arizona Republic. "But the process is exceedingly opaque."

Indeed, the independent review found that CBP had ruled that, of the twenty-five cases in which agents shot across the border at rock throwers, two had been "violations of policy." But it didn't reveal whether those agents had been disciplined.

When the Arizona Republic looked into the 42 Border Patrol killings, it couldn't find public record of any of those agents being disciplined. And a report by the Immigration Policy Center in April found that only 3 percent of complaints filed against Border Patrol agents between January 2009 and January 2012 were addressed by disciplining agents. For some officers — such as an officer who was accused of hitting an immigrant's head against a rock and causing a hematoma — "counseling" is the only discipline they receive.

When agency officials have gotten involved in excessive-force controversies, they have invariably issued an official account that exonerates their agents — often despite evidence to the contrary.

The agency claimed, for example, that Hernandez Rojas (the man whose killing inspired the use-of-force investigation to begin with) was acting aggressively after being tased. Yet the Arizona Republic reported that "cellphone videos showed him begging for help, face-down on the ground, as a dozen agents shocked and struck him."

When the uncensored independent review of shootings was leaked by the Los Angeles Times, the Border Patrol commissioner issued policies that were slightly more restrictive. The revisions required agents to have a "reasonable belief" that a car is using deadly force in order to shoot at it, and instructed them only to shoot when threatened with "imminent danger of death or serious injury." (These changes have been preserved in the new use-of-force policy issued in May.) Yet even these modest changes were unacceptable to the agents' union, which accused the independent review of being "shortsighted" and its authors of having an "urban policing mentality." The Border Patrol union's official statement in response to the revisions began with an excerpt from the story of David and Goliath. The message: Rocks can be lethal weapons, and agents should be empowered to respond in kind.

When the new use-of-force policy handbook was released in full in May, though, the Border Patrol union was pleased by the changes — or rather, the lack thereof. A union official said that the agency "realized the unique environment we are in and kept in place the ability to defend ourselves against vehicular assaults and stone attacks." Since the union has been so forthright in attacking any changes it feels make it harder for its agents to use deadly force, their embrace of the new policy handbook raises questions about whether it will result in on-the-ground change.

But Customs and Border Protection's decision to release a new policy handbook, and to let the public see the full Police Executive Research Forum report, are a step in the right direction. In a statement, new commissioner Gil Kerlikowske said they represent "the beginning of a continuous review of our responsibility to only use force when it is necessary to protect people." That implies Kerlikowske knows that Border Patrol hasn't been paying enough attention to when it uses force — which is a good sign that genuine change is coming. But the proof will have to come from the actions of agents themselves.

Update: This article is based on the April 2014 article "The Border Patrol has a big problem with excessive force." It has been updated substantially to reflect the release of the full independent report and new CBP policy handbook in May 2014, as well as the results of the Immigration Policy Center report on agent discipline from April 2014.