Border Patrol restricts agents’ use of force

Border Patrol Chief Michael Fisher directed border agents not to step in front of moving vehicles, nor to use their bodies to block them, in order to open fire at drivers. He also barred shooting at vehicles whose occupants are fleeing from agents.
(Mark Wilson / Getty Images)

WASHINGTON — The U.S. Border Patrol has restricted border agents’ authority to shoot at moving vehicles or at people throwing rocks, changing a controversial policy that has contributed to at least 19 deaths since 2010.

In a memo released Friday, Border Patrol Chief Michael Fisher directed border agents not to step in front of moving vehicles, nor to use their bodies to block them, in order to open fire at drivers. He also barred shooting at vehicles whose occupants are fleeing from agents.

A deadly threat, which would justify use of force, does not “include a moving vehicle merely fleeing from agents,” the new rule states.

Fisher also ordered agents to seek cover or move away from rock throwers if possible and not to shoot at them unless a rock or other object poses an imminent danger of death or serious injury.

The new rules would bring the Border Patrol’s practices closer to those used routinely by the nation’s major urban police departments. They are a response, in part, to widespread complaints from immigrant advocates that border agents have shot and killed people in some cases when deadly force was not necessary to protect the lives of agents or the public.


The Los Angeles Times reported last week that U.S. Customs and Border Protection had commissioned law enforcement experts to review 67 shooting incidents that left 19 people dead along the U.S.-Mexico border from January 2010 to October 2012, but then had rejected the group’s recommendations to crack down on shooting at vehicles and rock throwers.

Fisher’s directive, contained in a four-page memorandum titled “Use of Safe Tactics and Techniques,” essentially reverses that decision and sets new standards on use of force for one of the nation’s largest law enforcement agencies. U.S. Border Patrol employs more than 21,000 sworn federal agents.

Homeland Security Secretary Jeh Johnson had ordered the Border Patrol to reconsider the policy when The Times revealed that the Police Executive Research Forum, a nonprofit research and policy organization, concluded that some agents had intentionally stood in front of fleeing vehicles apparently to justify opening fire, and had fired in frustration at people throwing rocks from across the Mexican border.

Johnson also ordered Homeland Security officials on Friday to release use-of-force policies for the department as a whole, as well as for Customs and Border Protection and Immigration and Customs Enforcement. It was the first time the department has made the documents public.

In a statement, Johnson said the new guidelines for Border Patrol agents would “lessen the likelihood of deadly force situations as we meet our dual goals of ensuring the safety and security of our dedicated agents as well as the public that they serve.”

Johnson took office in December, and his first major policy revision drew flak from those who argue that border agents should be given greater latitude than police in other jurisdictions to use force to protect themselves and to prevent smugglers and others who are seeking to enter the country illegally.

The new policy “seems to be a response to political pressure from special interests,” Shawn P. Moran, vice president of the Border Patrol agents’ union, said in a telephone interview.

Customs and Border Protection is revising its Use of Force Policy Handbook, last updated in October 2010. Authorities must negotiate changes with the Border Patrol union and other labor groups that represent the federal force before the handbook can be used to train agents, however.

“We will oppose any restriction on the ability of agents to use force,” Moran said.

In Friday’s memo, Fisher said border agents “make split-second decisions in circumstances that are tense, uncertain, and rapidly evolving,” and they often face extreme danger.

Agents have reported more than 6,000 assaults since 2007, Fisher said, and three agents have been killed in that time. Since 2010, he said, agents “have been assaulted with rocks” 1,713 times, and agents responded with deadly force 43 times, killing 10 people.

In a conference call with reporters, Fisher said he had instructed supervisors to make Tasers, pepper spray and pellet guns available to give agents alternatives to lethal weapons. He also said agents would use spike strips to stop vehicles.

Fisher said the memo laid out for agents “what the leadership expects about how we can better prepare them to handle themselves to do their mission and to keep the public safer.”

Some advocates for immigration reform said the new policy doesn’t go far enough to limit the use of deadly force.

“The Border Patrol has been operating without the best practices of law enforcement,” said Chris Rickerd, a border security expert for the American Civil Liberties Union in Washington.

The ACLU has proposed that agents wear small cameras and install video cameras in their vehicles, as many local and state police forces do, to provide a clear record when force is used. The Border Patrol agreed last year to test the cameras, but Fisher said the agency was still discussing that idea.

Other groups said the new policy did not change what they viewed as a lack of accountability for Border Patrol agents who use excessive force.

Juanita Molina, executive director of the Border Action Network, a human rights organization based in Tucson, said Customs and Border Protection “must hold their officers accountable for what has become a clear pattern and practice of abuse of force.”

Sen. Robert Menendez (D-N.J.) said the directive was “a much-needed first step to prevent unnecessary killings of unarmed people near the border.”

But Menendez said he wanted to know whether disciplinary actions followed any of the 67 shooting incidents reviewed by the law enforcement group. Customs and Border Protection officials have refused to say how many agents have faced disciplinary action since 2010 for inappropriate use of force.

Rep. Zoe Lofgren (D-San Jose), the top Democrat on the House immigration policy and border security subcommittee, also called on Customs and Border Protection to be more forthcoming.

“When there are incidents in terms of injury or even death, there needs to be transparent investigations and there needs to be a public resolution of what they found,” she said.

e a public resolution of what they found,” she said.