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Report: Border Patrol should double investigators, limit use of deadly force

A federal oversight panel charged with reviewing how Customs and Border Protection handles deadly-force cases recommends the agency more than double the number of investigators to review abuses and corruption.

Published by the Los Angeles Times, the 40-page draft report by the Homeland Security Advisory Council made a series of recommendations, including increasing the number of investigators at CBP's Office of Internal Affairs from 218 to at least 550. The office would also be given the lead role in reviewing cases of misconduct, corruption, and excessive force by Border Patrol agents and CBP officers.

Eight senior and retired law enforcement officers, including Tucson Police Chief Roberto Villaseñor, began their review in March as part of an overall effort announced by CBP Commissioner R. Gil Kerlikowske to improve the agency's transparency and accountability.

The panel recommended that the agency's use-of-force policy should include the statement that "CBP values human life and the dignity of every person and that the primary duty of every CBP officer/agent is the preservation of human life."

The panel said the agency should adopt clearer guidelines on when agents can fire their weapons. Last year, new rules of engagement required agents to seek alternatives to opening fire on people throwing rocks. If possible, agents were urged to seek cover or move back.

Agents should also be expressly prohibited from firing at moving vehicles, unless the occupants of the vehicle present a deadly threat to the agent or another person. This, the panel said, must be other than the use of the vehicle itself.

This panel also said that agents should avoid opening fire if bystanders could be hit.

The recommendations echo those made last year by the Police Executive Forum, which said that the agency lacked diligence with regard to the investigation of use of force incidents, pursuing a "no-harm, no foul" approach that lead to "tacit approval of bad practices."

The report by PERF questioned the agency's seriousness with regard to deadly force incidents, writing, "it is not clear that CBP consistently and thoroughly reviews all use of deadly force incidents."

The release of the report led to the ouster of internal affairs head James F. Tomscheck last June.

The HSAC panel agreed with a move by Homeland Security Secretary Jeh Johnson to increase the investigatory power of internal affairs agents from administrative violations to review criminal offenses.

"Since corruption by its nature is a potential criminal offense," the report said, "CBP's Office of Internal Affairs, astonishingly, had lacked the authority to investigate such matters."

"Indeed, the failure to adequately staff CBP Internal Affairs" to "promptly and thoroughly investigate allegations of internal corruption and other serious misconduct leaves CBP with an enormous vulnerability: the risk of systemic corruption and potential scandal," the report said.

This situation, the report read, should be "rectified as expeditiously as possible."

Earlier this month, the agency announced that after reviewing 67 shooting incidents that killed 19 people, agents were resolved in all but an handful of cases. The Justice Department continues to review three lethal shootings that happened in 2012 and criminal charges may still be possible.

Advocates have reviewed abuse complaints and found the agency lacking when it comes to transparency and action.

Last May, the Washington-based American Immigration Council reviewed 809 abuse complaints and found that fewer than two percent of complaints made against agents led to action.

More than a third of those complaints came from Tucson Sector, however, when compared to the number of apprehensions, the Del Rio Sector in Texas had the highest rate of abuse complaints.

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This could include the shooting death of Jose Antonio Elena Rodriguez, a 16-year-old boy shot to death in October 2012 by Border Patrol agent Lonnie Swartz. Swartz fired through the border fence in Nogales, Ariz., hitting the boy approximately 10 times. The government has claimed that the agent was responding to rock-throwing that broke out in the wake of a report of suspected drug smuggling.

While the Justice Department has not announced formal charges against Swartz, his lawyer Sean Chapman said in court that the U.S. Attorney's Office is currently conducting an investigation.

Nearly 50 people have been killed by Border Patrol agents since 2005, including an incident Friday when an agent with BORSTAR, the agency's tactical unit, shot and killed escaped murderer Richard Matt in upstate New York.

In Arizona, Border Patrol agents killed two men last year, including Edgar Amaro López in October and Jose Luis Arambula in May. Both men were connected with smuggling incidents when they were killed.

The report noted that arrests for corruption among CBP personnel "far exceed, on a per capita basis, such arrests at other federal law enforcement agencies."

In part, the inability to investigate misconduct among agents was an "inadvertent, unintended consequence" of the creation of the Department of Homeland Security in March 2003. During the reorganization, which revamped the U.S. Customs Service into CBP, the internal affairs office was "decimated," the report said.

"Until this is reversed, CBP remains vulnerable to corruption that threatens its effectiveness and national security," the report said.

TucsonSentinel.com's original reporting and curation of border and immigration news is generously supported in part by a grant from the Ethics and Excellence in Journalism Foundation.

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Paul Ingram/TucsonSentinel.com

A Border Patrol vehicle at the scene of a shooting by agents southwest of Tucson in October 2014.