Audit Finds Major Issues In CBP's Use Of Force Policy
September 18, 2013 1:17 p.m.
Shawn Moran, Vice President, National Border Patrol Council
Mitra Ebadolahi, ACLU Border Litigation Attorney
Related Story: Audit Finds Major Issues In CBP's Use Of Force Policy
CAVANAUGH: A report on the use of force by Customs and Border Patrol officers has just been released, and it seems to raise as many questions as it answers. The department of Homeland Security was directed by Congress to issue the report after a series of deadly force incidents raised concern along the border, in particular the case of Anastacio Rojas whose beating and tazing by Border Patrol recovers in San Diego was caught on camera in 2010. Agents claim he was resists them he want died of a heart attack after the beating. His death was determined to be a homicide. Joining me to discuss the report are my guest, Shawn Moran, vice president of the Border Patrol officers council. Welcome to the program.
MORAN: Thank you for having me.
CAVANAUGH: And Mitra Ebadolahi, thank so much for coming in.
EBADOLAHI: Thanks for having me.
CAVANAUGH: Let me start with you. The report from the department of Homeland Security's officer of inspector general indicates that the Customs and Border Patrol does not have a system to track use of force cases. What's your reaction to that?
EBADOLAHI: That's correct, one of its first recommendations is that the Border Patrol create such a system. My reaction is one of disbelief. It's very important for any law enforcement agency, particularly one as large and complex as CBP to track allegations of excessive use of force.
CAVANAUGH: And corresponding with that, another finding that would seem fundamental to law enforcement is that border agents are not fully trained in all less lethal options in dealing with threats.
EBADOLAHI: Yeah, I think one of the things that border advocates have been saying for many years now is that we want to see more training, we want to make sure that people are fully aware of the options they have that don't amount to lethal force. And this report seems to indicate that there could more that could be done to make sure officers have alternative tools at their disposal.
CAVANAUGH: Now, Shawn, what training do customs and border protection officers receive to determine the appropriate use of force?
MORAN: Well, from the very first day of the academy, agents are trained in the use of force, the use of force continuum, which ranges from compliance all the way up to deadly force. And this is one area that we commend the agency. We have no complaints as to how they are training agents. Believe me, if we thought there were a lack of training, especially it came to deadly force and less than lethal force, we would be speaking out, but we think the agency does a good job of training its agents, and they reluctantly use deadly force and any type of force only whens in.
CAVANAUGH: How do you think the office and the inspector general then came up with this conclusion, that there is a lack of training on all the options of the less lethal options for Border Patrol officers?
MORAN: My assumption there would be that because agents aren't required to carry every single type of less than lethal device that is in our arsenal, that may be why they said there needs to be more training. If an agent were tracking a group of illegal aliens and they had to carry every kind of device, they would never catch anyone. We're not like police departments. We're not working out of a radio car where we have easy access to the trunk to carry other weapons systems. Our agents are off out there miles from their vehicles, miles from help, and they just don't have the ability physically to carry every single device that's in the agency's arsenal.
CAVANAUGH: As far as you're concerned, is there a clear use of force policy within the CPB?
MORAN: Actually that is the one area that I have no complaints. I think every single agent, every single officer that works at the ports knows clearly what the use of force option are, when they should use that force, and how to escalate and deescalate as necessary.
CAVANAUGH: And the findings about the tracking, that there was no clear way to indicate a report on use of force and deadly use of force within the agency, did you ever find that? Did you ever hear that from other officers? That in an incident report in a local police department, there's paperwork and reams and reams of paperwork, and any time an incident occurs, is that also the policy within the Border Patrol? Or does this not get tracked at all?
MORAN: One thing that the Border Patrol is not lacking in is paperwork. It takes more paperwork to deport somebody from this country than to book someone for murder. We have plenty of paperwork. We've don't have a single case-tracking system that tracks assaults on agents or use of force incidents. We do have databases that are used to show that we use force and that we use our less than lethal devices. But I think a unified system that shows use of force incidents would be great, because it would also show how many times agents have not used force when they have been assaulted. The number of assaults on agents far outnumbers the times we use force.
CAVANAUGH: This report was sparked by a series of deadly force incidents at the border, 19 of them in two years. Does this department of Homeland Security report answer the questions that the ACLU and immigrant activists wanted answered?
EBADOLAHI: No, it doesn't, it raises more questions than it answers. Of the fact that this organization doesn't have any meaningful system for documenting use of force incidents is just outrageous. If we were to think about any other law enforcement agency having 19 separate incidents where lethal force was used resulting in people's deaths in two years, I think anybody in this country would just be outraged to hear that. If our local police office was accused of that kind of behavior, people would be up in arms. This is an agency that is completely opaque, it lacks transparency and accountability. We have no idea what they're doing and why they're doing it. They are refusing to adopt best practices used by other law enforcement agencies, things that are viable giving their roving around wearing body cameras so they can actually be held accountable for incidents where use of force is used so people can see what's going on, and making sure they're not beating people senseless, which is what happened with Anastacio Rojas, which led to this request for the report. The OIG, the office of the inspector general passed the buck down to CIP. It's supposed to be an investigative independent agency, and all it was able to do in this instance was raise a series of questions which reflect many of our own question, and not provide us anything even approaching the kinds of answers that we want to see. Of the report says that there were over 1 thousand cases of possible excessive force in the last five years. But acknowledges that because of insufficient data collection, we don't even know whether that's all. There's no mention whether whether any of that force was appropriate, there's no sense of appropriate investigations or discipline. Whether the high instance of excessive force incidents is problematic, etc.
CAVANAUGH: Based on this report and two others that they're undergoing at this point, the Border Patrol says it's already making changes in its policies and training. You have seen that happening?
MORAN: Well, are CBP is slow to react to reports and to change. It's took many years for us to get less than lethal devices. I'm not here to be an apologist for the agency. But I think they have done a good job, are the Border Patrol has done a good job in investigating all of these. Every single incident that is reported, and many, many times I say the vast majority, upwards of 90% of the time, these allegations are completely unfounded, and they're made by people that are facing serious jail time, and they know how to play the system. They know if they make an allegation, their case is going to be slowed down, and they can try to avoid at least temporarily being sent to a prison.
CAVANAUGH: How about this suggestion from the ACLU and others of agents wearing body cameras? Would you be in support of that?
MORAN: I think the Border Patrol likes -- or has a history of giving the grease to the squeaky wheel. So any immigrant rights group that cries loud enough and long enough gets change from the Border Patrol. And I don't think that's a way to run a federal law enforcement agency.
CAVANAUGH: Wouldn't this protect agents too?
MORAN: I think it would. But I'm not going to be the person that says our agents have to mandatorily wear yet another piece of equipment when they go out to do their job.
CAVANAUGH: I wonder, this issue, is that now just a request? Or has that moved down the chain at all, and why do you think that would be helpful?
EBADOLAHI: We believe it's a best practice, and our belief is reflected by what the Department of Justice itself has indicated. According to the DOJ, the use of cameras improves the justice by providing effective evidence, deters violent behavior, and helps deter those who attack officers. There was a study done in Rialto where the police department spearheaded a study to see what would happen with officer-mounted cameras, and they concluded that the use of the cameras resulted in an 88% decrease in complaints filed against officers. If we're concerned about too much paper, why wouldn't we use a neutral, effective recording device that would allow us all to know what's going on within this agency? There was also a recorded 60% decrease in incidents where officers used force with those officers not wearing cameras being twice as likely to use force. Clearly there's something going on that when people think they're not being recorded, they have impunity, they can do whatever they want.
CAVANAUGH: The ACLU is calling on Customs and Border Patrol to be more transparent and accountable in use of force incidents. What does that actually mean? What do you want them to do?
EBADOLAHI: Absolutely. The first step is what is actually happening? How many incidents are occurring every day where these issues are coming up? We have no clear numbers. The OIG report itself makes clear that we have no real sense of what's happening inside this black box. If you think about what happened to Anastacio Hernandez, I just have to respond to this, that these allegations are unfounded and people are facing jail time and trying to pass the buck. He was handcuffed, he was broken, this is a Rodney king style beating. You can see it on the internet. People were recording this egregious violation of this individual's rights. He died of a heart attack. He was not a risk to anyone he want couldn't do anything. He was surrounded by a gang of agents. And the agents tried to get people to delete the video recordings and the audio recordings they took of that incident. That is the complete opposite of accountability. So when we say we want transparency and accountability, we want there to be a public reckoning with this organization that's funded by our tax dollars, it's a federal law enforcement agency, we have right, we should know what's going on.
CAVANAUGH: I get from you, Shawn, that with this, and the accusations being made against Border Patrol officers that you kind of feel like you're getting an unfair rap in reports like this. I wonder though, you willing to see changes being made on the front line as Border Patrol recovers go and do the job that's so important to this country, to make changes in policy? Do you think that's warranted?
MORAN: I don't know if a policy change is necessary. But we're always open to training that betters our agents and makes it safer for them and for the public and anyone that we encounter. I think the thing that most people forget is that there's always another side and another party when we have an allegation of force against an agent. People make choices, whether they ingest drugs, whether they decide to assault an agent, the case near the San
RIGHT2: Sid row point of entry, where the individual died, he had drugs in his system, he assaulted agents and continued to assault them. You make the choice to take drug, you make the choice to assault agents, you have to deal with the repercussions. It's a tragedy that people die when they come in contact with law enforcement. But we've also lost 119 Border Patrol agents over the years. Those are the people that I'm concerned about protecting. So if we can have straining that's going to make people safer, we're all for that.
CAVANAUGH: Considering that illegal immigration numbers are down, are use of force complaints against agents down as well?
EBADOLAHI: They're not. This is the thing. Since January 2010, we have at least 19 people who are dying as a result of excessive use of force. Of that number, 17 are minors under 21. You have to wonder why these things persist. Mr. Hernandez, I'm not sure how you can assault someone when you're in handcuffs and on your stomach, prone, surrounded by officers with tazers. But if that's your reading of the facts, that's all the more reason we want we should have recording devices.
MORAN: You can ignore everything he did before he got handcuffed if you want.
EBADOLAHI: There is no reason he should have gotten tazed to death.
CAVANAUGH: Okay. You can go and make up your own mind, you can watch that video on our website, KPBS.org. Thank you both very much.
EBADOLAHI: Thanks for having us.