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National review board clears CBP in four new use-of-force incidents

Following its promise to become more transparent about use-of-force incidents, U.S. Customs and Border Protection again released the findings of a national review board on Wednesday, saying that agents acted "in compliance" in four separate encounters—including two where someone was killed.  

The National Use of Force Review Board was created by Commissioner R. Gil Kerlikowske in December 2014 following years of harsh criticism that the agency was failing to review deadly force incidents by agents and officers. In June, CBP released the first review findings from the board.

The board is a committee of senior leaders from CBP, the Justice Department, Immigration and Customs Enforcement and Homeland Security, and reviews use of force incidents that result in serious physical injury or death caused by a firearm, officials said. 

The board reviews cases that have been through the investigative process and declined for prosecution by a U.S. attorney, state or local prosecutor.

The reviews released Wednesday, included two incidents in which agents and officers used tasers, one with a deadly result. 

Among the reviews of incidents released Wednesday was an encounter between 21-year-old Jessica Cooke, a law enforcement leadership student at SUNY Canton and Border Patrol agents at a checkpoint near Waddington, New York.

The incident received wide coverage because Cooke recorded her interaction with agents with a cellphone. 

The Watertown Daily News first reported the incident, which eventually received national coverage after Cooke announced she was going to sue the agency. 

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After demanding the return of her ID an agent tells her to get back in the car. When she refuses, the videos shows that the unidentified agent responds, "Alright, I'm going to tell you one more time, and then I'm going to move you. Got it?" 

In the video Cooke says, "If you touch me, I will sue your ass. Do you understand?" 

"Move over there now," the agent said and then he lunges toward Cooke and the video tumbles. However, the camera continues to record audio which captures the crackling sound of a deployed taser and Cooke's screaming. 

The review board said that Cooke was "argumentative" and "ignored the agent's repeated instructions to return to her vehicle." 

The review board said that Cooke "made physical contact with the agent by bumping him" and the agent grabbed her forearm and elbow. Cooke "resisted by flailing her arms and hitting the agent" and "attempted to strike the agent with her elbow" and a female agent, also captured in the video, shot Cooke in the lower back with a taser. 

The review board said that the use of the taser was "in compliance with CBP's Use of Force Policy" and made one "operational and policy recommendation" for consideration.

A second incident reviewed by the NUFRB had deadly consequences. 

On Christmas Eve 2014, a man, identified by the San Diego Union Tribune as 40-year-old Francisco Manuel Cesena, attempted to cross into the United States through the San Ysidro Port of Entry near San Diego, California, but was stopped by CBP officers. 

According to the review board, a CBP officer checked the man's information and discovered that Cesena had a felony warrant for violating his probation. After Cesena was arrested, a CBP officer searched him and found that he had 7.7 grams of heroin and two syringes wrapped in electrical tape and hidden in his pants. 

Cesena was taken to the security office, but as CBP officers processed his paperwork he "suddenly and without provocation" stood up, ran toward the officer,  jumped over a counter and began hitting the officer on the head with his fists, the review board said. 

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The officer fought back while another tried to stun Cesena with a taser, which "had little effect." The officer tried again, tasing Cesena on his buttocks, but Cesena continued to fight. However, "shortly thereafter" Cesena stopped breathing and died. 

The review board also considered two incidents involving firearms. 

On March 19, 2015 two U.S. Border Patrol agents working near Sumas, Washington responded to the activation of a sensor along the U.S.-Canada border. 

The first agent to arrive found a man carrying a backpack, who mumbled "incoherently" as the agent approached, and then pulled out a can of Oleoresin Capsicum spray designed to deter bears. 

The man, later identified as 20-year-old Jamison Edward Childress by the Bellingham Herald, pointed it at the agent, dropped his backpack and ran down a hill covered with blackberry bushes. The agent returned to his vehicle and drove down the road in an attempt to cut off the man. 

The second agent arrived at the bottom of the hill in his vehicle, along with two officers with the Sumas Police Department and found Childress, who appeared to be agitated and had blood running down his face. The agent left his vehicle, "deployed his collapsible straight baton," and walked toward the Childress, who responded by pointing the bear-spray at the SPD officers and screaming obscenities, telling the officers to "Kill me, just kill me." 

According to the review released by the board, the agent abandoned the baton, and switched to his service-issued handgun, continuing to issue commands as he backed away to create some distance. Childress lunged, and then sprayed the agent in the face and torso with the bear spray. 

The agent fired two shots and one round hit the man in the head, killing him. 

Childress was a suspect in the murder of an 18-year-old man and had a warrant out for his arrest, the review board said.

Following the shooting, Whatcom County Prosecuting Attorney Dave McEachran told the Bellingham Herald in May 2015 that the shooting was justified. 

On the morning of April 11, 2015 an agent operating a mobile surveillance truck near Arivaca, Arizona spotted a group moving along a ridge near Coches Well and two agents were sent to track the group.  

As the agents moved through a wash, they were forced to split up. One agent followed a trail while the other agent continued through a wash. As the agent moved through the wash, he spotted five men carrying burlap sacks, commonly used to smuggle drugs through the desert. 

The agent ordered the men to stop, and all five dropped their packs. Four of the men fled, but a fifth man stopped and picked up a rock and "cocked his arm over his head as if to throw the rock at the agent," the review board said. 

The agent responded by firing one round from his service rifle and the man dropped the rock and ran away. There is "no evidence or indication to suggest the subject was struck by the round," the review board said. 

All told, the NUFRB has released findings for eight incidents, however, at least 64 people have been killed in confrontations with CBP agents and officers since 2005. 

Moreover, in the fiscal year of 2016, CBP officers and agents used force at least 756 times, according to the agency's own statistics. 

In the Tucson Sector alone, Border Patrol agents used "less-lethal" weapons—which includes tasers, collapsible batons, and pepper spray—at least 109 times, a sharp increase above the year before when the agency reported that agents used "less-lethal" weapons 69 times. Tucson Sector Border Patrol agents also used firearms four times in 2016, the highest rate in the United States. 

Customs officers in San Diego have the highest rate of use-of-force in the nation, with five incidents involving firearms and 32 incidents involving "less-lethal" weapons. 

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Paul Ingram/TucsonSentinel.com