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Can Border Patrol be fixed?

Maybe Border Patrol should do this less often.
Maybe Border Patrol should do this less often.
RJ Sangosti/Denver Post via Getty

"Things haven't been fine in the past. I think that's very clear."

When Customs and Border Protection head Gil Kerlikowske said that to a room of reporters on September 18, it was a milestone for the agency. For the past several years, the US Border Patrol has had a problem with agents using excessive force and getting away with it. Agents had killed at least 42 civilians since 2005 — and that was just based on cases that were known to the media. Admitting that the agency hadn't "been fine" was the closest that anyone in government had come to acknowledging the problem.

This spring, Kerlikowske arrived at Customs and Border Protection with a goal of restoring "transparency and accountability" to the agency. In mid-September, he announced several big steps toward that goal. For the first time ever, Border Patrol will actually keep records of when its agents use force — and will start investigating uses of force immediately after they occur. And CBP's internal affairs unit will now have the authority to do criminal investigations of agent misconduct.

For the past few years, Border Patrol's attitude towards its agents' use of force has sent two messages: Border Patrol agents are out of control, and the agency doesn't care about getting them in line. It's going to take successful implementation of these reforms to change the first message. But Kerlikowske is making a promise to the public that the second part, at least, is no longer the case — and that the buck stops with him.

An agency of lone rangers

lone Border Patrol agent

One riot, one agent. (John Moore/Getty)

Border Patrol agents think of themselves as the front line of defense for the US. And historically, they've thought of themselves as standing alone: "For most of its existence, Border Patrol operated very much individually," Kerlikowske said Monday. He told an old joke about a Texas sheriff who called Border Patrol in a panic to help him keep the peace during a riot, only to be disappointed when a single agent showed up and said: "One riot, one agent."

That culture has persisted, but the reality of "one agent" hasn't. Between 2005 and 2012, the number of agents on the US-Mexico border increased by over two-thirds.

Border Patrol agents along southwest border, 2005-2012

That rapid expansion came with its own problems. Congress was urging Border Patrol to hire more and more agents — but wasn't providing them with the money for training. And for the last few years, there hadn't been a strong incentive for the commissioner of the agency to take a firm hand; CBP hasn't had a chief confirmed by Congress since Obama entered office.

Border Patrol agents no longer were out on patrol alone all that often. But the "one riot, one agent" culture of the Border Patrol — which included the feeling that an agent had to protect himself and his country from people who could be out to get him — persisted.

Agents shot at cars "out of frustration"

border patrol gunboat

(John B. Carnett/Popular Science)

As with many law-enforcement agencies, when incidents happened in which officers had used force on people — or even killed them — Border Patrol's instinct was to be silent. As Kerlikowske said in September, "our basic comment was 'no comment.'" And the agency had no way of keeping track internally of use-of-force incidents. So it was hard for the public to piece together what had really happened in any given case, much less to see a pattern emerging.

But a few cases managed to grab public attention:

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...

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.

The outside group's report, which wasn't released in full to the public until after Kerlikowske took the reins at CBP, showed that Border Patrol agents weren't adhering to the agency's stated policy about only using lethal force when their own lives were in danger:

"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."

The agency simply didn't care about complaints

border memorial

An impromptu memorial to the victim of a Border Patrol shooting. (Bill Clark/CQ-Roll Call via Getty)

Border Patrol's use-of-force problem wasn't just that agents shot people too often. It was that the agency either supported its agents, or didn't care about addressing the public's concerns. In spring 2014, an American Immigration Council report analyzed over 800 complaints filed about Border Patrol misconduct — most of which were about use of force — over the past few years. What they found was alarming, as I wrote at the time:

Between January 2009 and January 2012, more than 97 percent of all complaints against Border Patrol agents that were addressed by internal investigators were closed with "No Action Taken" — not even an oral reprimand or a written report...

Not all of the complaints about excessive force or abuse were ignored. An officer who was accused of hitting an immigrant's head against a rock and causing a hematoma, for example, received counseling — the most common "action" the Border Patrol took in response to complaints, with six cases. Only one complaint resulted in a suspension.

Furthermore, of the 809 complaints that AIC analyzed, only 485 were closed at all — the others were still listed as "Pending Investigation." Those cases had been "pending" an average of 13 months (389 days) as of the end of the dataset. When the Border Patrol wanted to close a complaint, by contrast, it only took them an average of 5 months (144 days) to do it.

Customs and Border Protection didn't have a way to track use of force incidents on its own — and typically ignored complaints about use of force when they came in. If the agency wasn't trying to ignore the problem, it sure looked as if it was.

The current commissioner came to CBP to fix the problem

Kerlikowske sworn in

(Customs and Border Protection via Flickr)

Gil Kerlikowske knew what he was getting into. Kerlikowske was serving as President Obama's "drug czar" when he was asked if he had any suggestions for who should run Customs and Border Protection. He volunteered himself for the job.

CBP had taken a couple of steps toward acknowledging its use-of-force problem in late 2013: It released both revisions to its use-of-force policy and a heavily redacted version of the independent use-of-force report. But that didn't appease CBP's critics, who started calling for the full report to be released instead.

Kerlikowske came to CBP in March 2014 with the aim of fixing the agency's "transparency and accountability." In late May, he released a new use-of-force policy that incorporated the revisions — and the unredacted version of the independent report.

CBP spent most of the summer dealing with the child and family migrant crisis, which made institutional reform a little harder to implement. But with the influx of children and families from Central America in remission, Kerlikowske's moving forward again.

In September, he announced that the agency would finally be implementing a "uniform reporting process" for every use-of-force incident, and dispatching agents to respond to incidents after they're reported. Kerlikowske has committed to having a senior agent brief the press about the facts of incidents as soon as possible — a shift away from the "no comment" days of the past. And the agency will start testing body cameras this fall, to see if they'll be able to work in rugged terrain — and address agents' concerns about privacy.

The change that Kerlikowske is touting the most is that the agency's internal affairs unit will now have the authority to investigate its own agents for criminal misconduct, instead of Immigration and Customs Enforcement or DHS' inspector general. For one thing, he hopes, this will allow investigations to happen more quickly — other agencies tended to delay investigating Border Patrol cases until a prosecutor had decided whether or not to file a criminal charge.

It seems illogical that CBP's effort to improve transparency and accountability rests on having more internal control. When Kerlikowske announced the reforms in September, several reporters responded with skepticism: Would the people doing criminal investigations now be the same employees who failed so miserably to respond to complaints in the past? (The answer is that some of them will.)

But the purpose of these reforms, as much as anything, is to make it clear that Kerlikowske himself is responsible for turning his agency around. He came into office making promises, and, he said, "I'm pleased to be held accountable. But the basic rule in management is if you don't have the authority it's hard to be held accountable. Now it's up to me to make sure that I'm fulfilling those promises."

Can management fix a culture of impunity?

Border camera

Border Patrol agents don't want the cameras trained on them. (John Moore/Getty)

Kerlikowske's made it clear that the agency is no longer turning a blind eye to agents' excessive force. But that's only half the problem. What remains to be seen is whether agents are actually going to stop.

That might put Kerlikowske's goal of accountability at odds with his goal of improving agency morale. DHS agencies routinely rank very low on employee morale, and Kerlikowske's trying to fix that. But Border Patrol agents, or at least their union, routinely say that one of the reasons their morale is so poor is because their authority to use deadly force is being restricted.

Agents are particularly wary of body cameras. One San Diego union rep told a local Fox station, "Our concern is that it's going to be used against agents" by management, instead of as a tool for the public. The union's vice president was blunter: he said that the agency was testing out body cameras to "satisfy those who openly advocate against Border Patrol agents and criticize our every action."

Getting agents on board with use of body cameras is going to be a slow process, and it's unlikely that Border Patrol agents are going to start wearing cameras on patrol anytime soon. Right now, they're more a possibility than an actual reform. The short-term hopes for fixing Border Patrol's use-of-force problem rest on the new recording process, and the ability of internal affairs investigators to use their new power to investigate misconduct.

They have their work cut out for them. CBP is continuing investigations into over 150 use-of-force cases that were flagged in either the independent use-of-force report from 2013, or the American Immigration Council report on public complaints from 2014. But, in Kerlikowske's words, "no administrative action has been taken" — no one's been fired or suspended. The first clues that Kerlikowske really can reform Border Patrol from the top down are going to come when those investigations are completed, and actions are taken — or whether, the next time an agent uses deadly force, CBP is willing to bring it to the public's attention before anyone else.

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