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ACLU: Lax investigation drives Border Patrol misconduct at checkpoints

In at least 142 cases, Border Patrol agents may have violated the civil rights of motorists passing through checkpoints that straddle highways along the southern borders of California and Arizona, according to complaints obtained by the ACLU through a Freedom of Information Act lawsuit. 

On Thursday, the American Civil Liberties Union of Arizona released a 31-page report which compiled more than 6,000 pages of complaints, apprehension statistics, and other records from U.S. Customs and Border Protection, and its parent agency, the Department of Homeland Security. 

Covering January 2011 to August 2014, the records detail encounters that show an agency either unwilling or unable to police its own agents. 

Drivers repeatedly accused agents of racial profiling, verbal abuse, and complained about damage to vehicles and personal belongings. Two drivers said Border Patrol agents handled their firearms and made overt threats, including one motorist who said an agent at the checkpoint on Highway 78 touched his weapon and said, "How would you like to have a gun pointed at your face?"

Among the complainants was a military veteran who said that an agent at the Highway 90 checkpoint frightened his children by repeatedly demanding that he prove they were his. In another, a motorist at a checkpoint said agents repeatedly asked about his employment and when he objected, the agent was said to have replied that the motorist was "required to have a job to cross the checkpoint." 

The system may also be failing agents. 

In one case, multiple agents reported an agent's "abuse of authority and unstable behavior" at a checkpoint as "out of control and mentally unstable." The agents reportedly took the agent's weapon and gun belt and "secured it in a K-9 vehicle lock box." 

"It is unclear whether any further action was ever taken," the ACLU said. 

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Another agent complained in 2012 that a supervisor at the Border Patrol's Naco Station — now named for murder agent Brian A. Terry — told agents to stop any vehicle on roads running along the border. Again, it was unclear whether action was taken, the ACLU said. 

Border Patrol has repeatedly defend the practice of checkpoints in Arizona, calling them a "critical piece of infrastructure and a highly effective tool in our our enforcement efforts to secure the nation's borders." 

"U.S. Border Patrol traffic checkpoints are a critical enforcement tool for carrying out the mission of securing our nation’s borders against transnational threats. Checkpoints deny transnational organizations major routes of ingress from the borders to the interior of the United States," the agency said. 

However, according to apprehensions statistics in 2013, apprehensions made at the Tucson Sector checkpoint accounted for less than one percent of those arrested by the agency. 

That same year, nine out of 23 Tucson Sector checkpoints did not arrest "deportable subjects" or immigrants in the country without authorization. 

In Yuma Sector checkpoint arrests of U.S. citizens were nearly eight times higher than those of non-citizens, and one checkpoint in Yuma reported only one non-citizen apprehension in three years. 

The agency has refused to break out apprehensions and seizures made at each of the 11 checkpoints in Arizona. 

Some Border Patrol checkpoints, including one on Interstate 8 near San Diego, display the year's apprehension and seizures. 

When asked about that difference in 2014, an agency official told TucsonSentinel.com that Tucson Sector was "looking into the opportunity to highlight the efforts of our checkpoints and displaying those arrests and seizures at our checkpoints." 

The ACLU noted that Border Patrol does not record stops that do not lead to an arrest, potentially hiding stops made that include lengthy detention and searches. Additionally, the data showed that Border Patrol does not document false alerts by drug dogs. 

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"As a result, it is impossible for Border Patrol to track or respond to recurring incidents involving “problem agents” or chronically inaccurate service canines," the ACLU said. 

And, the complaints also extend beyond checkpoints to "roving patrols" including Clarisa Christiansen, who filed a formal complaint against the agency in May, saying that an agent threatened her with a Taser and told her he would cut her seat belt with a knife during a 2013 stop near her home in Three Points. 

After the encounter, Christiansen said she found her rear tire had been punctured, leaving her and her children on a hot desert road, she said. 

Out of 142 cases of potential civil rights violations, the ACLU found only one case where an agent was disciplined: an agent was suspended for one day for unjustifiably stopping the son of a retired Border Patrol agent. 

Officials declined to comment on the ACLU's report, and instead referred to remarks by CBP Commissioner R. Gil Kerlikowske. 

On Tuesday, Kerlikowske reiterated earlier promises to make the agency more transparent and released use-of-force numbers for the last five years

"The past year has brought many changes to CBP on use of force, transparency, and accountability," Kerlikowske said. "The steps we have taken over the past year – implementing policy changes, revamping our training, standing up a new review process, and expediting the disclosure of basic incident information to the public – are critical to achieving our mission and ensuring the trust of the American people."

While the ACLU said the data was incomplete and taken from just two of the Border Patrol's 20 sectors, the number of complaints recorded by Border Patrol vastly outweighs the number of complaints DHS and CBP disclosed to congressional overview. 

For example, from 2012 to 2013, the agencies inside DHS responsible for investigating complaints reported just three incidents alleging Fourth Amendment violations nationwide. However, records given to the ACLU show at least 81 complaints in just Tucson and Yuma Sectors during the same time period. 

In part, the records show that the structure of oversight inside the agency may result in "cursory investigations," the ACLU said. 

Oversight for Border Patrol agents and CBP officers is divided among four agencies at DHS, including the Office of Inspector General, the DHS office for Civil Rights and Civil Liberties, CBP's own internal affairs department, and the Office of Professional Responsibility at Immigration and Customs Enforcement. 

In five complaints submitted to DHS in October 2013, the ACLU found that the Inspector General's office held the complaints for 11 days, and then handed the responsibility over to CRCL. 

Two years later, the civil rights office had yet to respond, the ACLU said. 

Meanwhile, another set of complaints given to OIG and CRCL were then passed down to the sector level, where supervisors, the ACLU said, were "quick to downplay them as mere 'allegations.'" 

"It does not appear from these records that any of the complaints were ever properly investigated by Border Patrol or any other agency," the ACLU said. 

DHS has suffered problems with oversight since its creation in 2003. 

Until recently, CBP's own internal affairs was unable to investigate criminal offenses committed by agents, including corruption, fraud and sexual abuse, because of an "inadvertent, unintended consequence" of the quick restructuring of more than 20 federal agencies into a single department after Sept. 11. 

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During the reorganization, which revamped the U.S. Customs Service into CBP, the internal affairs office was "decimated," according to a draft report by Homeland Security Advisory Council released in June. 

The council advised the agency to immediately double the number of investigators. 

"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.

Even with fatal shootings, the agency has struggled to investigate complaints. 

In Sept. 2013, an Inspector General's report highlighted serious problems with the agency's own use-of-force investigations, saying that CBP lacked a system to track complaints while many agents failed to understand the agency's own polices. 

The following May, the Police Executive Research Forum submitted an equally critical report, writing that the agency lacked diligence with regard to the investigation of use-of-force incidents, operating under a "no-harm, no foul" approach. 

The report questioned the agency's seriousness in investigating such incidents, writing that "it's not clear that CBP consistently and thoroughly reviews all use of deadly force incidents."

James F. Tomsheck, the agency's head of CBP's internal affairs until he was reassigned in June 2014 told the Center for Investigative Reporting that at least a quarter of the 28 deaths caused by CBP agents since 2010 were "highly suspect." 

"In nearly every instance, there was an effort by Border Patrol leadership to make a case to justify the shooting versus doing a genuine, appropriate review of the information and the facts at hand," said Tomscheck. 

During a press conference in Sept. 2014, the acting chief of internal affairs Mark Alan Morgan told reporters that no Border Patrol agents were disciplined for deadly force incidents since 2004. 

Morgan did say that the office was pursuing one case, and would continue to review 155 other cases of misconduct and use-of-force. 

This may have alluded to the cross-border shooting of 16-year-old Jose Antonio Elena Rodriguez, who was killed by Border Patrol Agent Lonnie Swartz during a 2012 incident. 

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Swartz pleaded not guilty to second degree murder Friday, following an indictment by a federal grand jury.

However, while officials highlighted the indictment, a federal judge ordered Border Patrol to release the agent's name as part of a lawsuit by the boy's family. 

The family is still pursing the case, along with two other families who have sued in federal court over fatal shootings in Arizona. 

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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1 comment on this story

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Oct 15, 2015, 10:10 am
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Driving while white I’ve never gotten more than a nod and a wave.

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Click image to enlarge

Paul Ingram/TucsonSentinel.com

The Border Patrol checkpoint on Arivaca Road.

Out of 142 cases of potential civil rights violations, the ACLU found only one case where an agent was disciplined: an agent was suspended for one day for unjustifiably stopping the son of a retired Border Patrol agent.