Radio Silence from Border Patrol on Use-of-Force Policies Leads to Lawsuit-UPDATED

*** UPDATE: CBP Releases Report, New Training Handbook 5/30/14 ***

This morning, Customs and Border Protection officials announced the release of a revised use-of-force policy handbook and the Police Executive Research Forum report the San Diego ACLU had sued to get just eight days earlier. We welcome the overdue public release of the PERF report, and hope this is a positive step toward achieving urgently needed CBP transparency that the agency has long resisted.

Today we call on the CPB to ensure that the agency fully incorporates all major reforms in:

  • agent training,
  • use-of-force incident tracking,
  • impartial investigation processes within CBP, and
  • effective oversight and accountability.

With new leadership at the Department of Homeland Security and CBP, it is time to seize the moment to enact rapid and thorough reform of the nation’s largest law enforcement agency, with particular focus on protecting the civil and human rights of families and residents in border communities.

We will hold the CBP commissioner, R. Gil Kerlikowske, to his word, made in announcement of today’s release of the long-awaited documents, to view today’s release of documents as “…the beginning of a continuous review of our responsibility to only use force when it is necessary to protect people.”

* * *END OF UPDATE * * *

SAN DIEGO – Today, the ACLU of San Diego & Imperial Counties filed a complaint in court against Customs and Border Protection for the agency’s failure to respond to a Freedom of Information Act request seeking the release of the Police Executive Research Forum (PERF) report analyzing the agency’s use-of-force policies and practices. The ACLU previously had filed a FOIA on February 21, 2014, but to date has received no response at all—not even an acknowledgement of receipt of the FOIA.

[Lea este artículo en español, aquí.]

“Custom and Border Protection’s failure to even respond to our FOIA request exemplifies the agency’s resistance to transparency and accountability,” said Mitra Ebadolahi, staff attorney for the San Diego ACLU’s Border Litigation Project. “The PERF report is an important document, one that details CBP’s problematic and potentially unlawful use-of-force policies and practices. The report should be made public in its entirety, immediately.”

The PERF report came after sixteen members of Congress sought information about CBP’s practices following a series of high-profile deaths involving CBP personnel. Since 2010, at least 28 people have died in encounters with CBP officials. At least ten of these were U.S. citizens; six were inside Mexico when killed. Already in 2014, three people have died after encounters with Border Patrol agents, including a migrant here in San Diego near Otay Mesa.

Next week marks the fourth anniversary of one of the people killed since 2010—Anastasio Hernandez Rojas, a longtime San Diego resident whose wife and five U.S. citizen children continue to seek justice for his brutal killing by border agents, which was caught on video by several eyewitnesses.

The CBP itself commissioned the PERF, a nonprofit research organization, to conduct an external, independent review of the CBP’s use-of-force practices and policies. Though the report was written and delivered to the CBP in 2013, it has not been made public. The Los Angeles Times wrote a story after seeing a leaked copy of the report, and detailed a scathing review confirming what civil rights organizations have long charged: that the Border Patrol agents’ use of force is often excessive and arbitrary. According to the LA Times, the PERF report suggests that border agents deliberately provoked confrontations that led to avoidable violence.

Just last month, on April 7, 2014 the San Diego office of the American Friends Service Committee also submitted a FOIA request for CBP use-of-force records, including the PERF report.  Like the ACLU, the AFSC has also not received a response to their FOIA request.  Pedro Rios, director of the AFSC, said, “CBP is the largest domestic law enforcement agency in the country. The general public has a right to know what policies guide its agents and how those agents are held accountable for actions that lead to abusive treatment.”

The Southern Border Communities Coalition (SBCC), a coalition of 60 organizations from San Diego to Brownsville and of which ACLU and AFSC are a part, has also requested the release of the PERF report directly with the new leadership at CBP. “PERF is a widely respected, professional police review agency whose recommendations set the standard for best practices,” stated Andrea Guerrero, co-chair of SBCC. “There are no excuses for hiding or rejecting any recommendations that could prevent further deaths and abuses.”

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