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CBP review clears Border Patrol in 4 deadly force incidents

After years of harsh criticism over its ability to investigate deadly force incidents, U.S. Customs and Border Protection has for the first time released the results of four use-of-force investigations, saying that in each case, agents acted "in compliance" when they discharged their weapons. 

Deputy Commissioner Kevin K. McAleenan presented the findings Thursday for four cases spanning from 2012 to 2015, including one in Arizona near Nogales, two in Texas and the fourth off the coast of California. 

In two cases, a person died during the incident.

In May 2012, agents were chasing a group of people suspected of crossing the border illegally near the Atacosa Mountains, northwest of Nogales. As an agent closed in, "individuals in the group" began to throw rocks at him from their position above him. The agent fired one round at one of the rock-throwers. Neither the agents nor anyone in the group was injured.

Officials reviewed two incidents in the Rio Grande Valley. In July 2014, BP agents, along with members of the Edinburg Police Department, fatally shot a man after he barricaded himself in his home and fired on two police officers, seriously wounding them. The man, who was not identified in CBP's review, ran out of the back of his home carrying a rifle, and when he raised the weapon to shoot, Border Patrol agents and local officers shot and killed him.

In the second Texas case, a few months later, a Border Patrol agent fired a single round from his M4 assault rifle, but did not hit anyone after people on the Mexican side of the river began throwing rocks at two boats crewed by Border Patrol agents. During that incident on the Rio Grande River, agents also fired "less-lethal" rounds carrying capsaicin powder from a weapon similar to a paint-ball gun. However, CBP said the weapon was "ineffective" and became inoperable.

In another, a woman drowned after she was thrown from a small boat after it collided with a vessel carrying CBP agents near Solana Beach, Calif.  

The agents tried to intercept the boat, known as a panga, and during the chase an agent used a shotgun to fire a shell intended to disable the engine. The boat's driver slewed into CBP's vessel, throwing 19 people overboard and capsizing the boat. 

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"This is the results of the facts and finding of what we determined for each of these cases," McAleenan said. 

At least 64 people have been killed in confrontations with CBP agents and officers since 2005.

The reviews came from CBP's own National Use of Force Review Board, which was created by CBP Commissioner R. Gil Kerlikowske in December 2014. 

The board is a committee of senior leaders from CBP, the Justice Department, Immigrations 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 completed the investigative process, and have been declined for prosecution by a U.S. attorney, state or local prosecutor.

Last week, the agency announced that after 92 years, it would break with tradition and hire the chief of the Border Patrol from outside the agency. FBI veteran Mark Morgan will take over, replacing Deputy Chief Ron Vitiello, who served as interim head of the agency after Michael Fisher retired from the agency in October 2015. 

Morgan's leadership comes as the agency continues to struggle with accusations that its agents routinely violate civil rights, an issue that Morgan has already wrested with, after serving as an interim head of CBP's own internal affairs division. 

In June 2014, Morgan took over internal affairs at CBP after the former head, James F. Tomscheck, was ousted over criticism that the agency was failing to properly investigate accusations of abuse and excessive use of force by failing to assign enough investigators. 

Tomscheck sought federal whistleblower protection, and the following August told the Center for Investigative Reporting that several deadly force incidents by U.S Border Patrol agents were "highly suspect" and that officials consistently changed facts to make a case to justify shootings. 

During a press conference in Sept. 2014, Morgan told reporters that no Border Patrol agents had been disciplined for deadly force incidents since 2004, but that the office was continuing to review 155 cases of misconduct and use-of-force. 

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One case, Morgan said, was being pursued by the office — likely the case against Lonnie Ray Swartz, who has been indicted for second-degree murder for shooting and killing 16-year-old Jose Antonio Elena Rodriguez in Nogales in October 2012. 

In May 2014, CBP's Commissioner R. Gil Kerlikowke announced that transparency was a top priority at the agency, and published an updated version of the agency's own use-of-force policy. In October, the agency began to release use-of-force numbers updated month-to-month. 

However, it took six months before the agency agreed to release those numbers at the sector level. 

During an interview with TucsonSentinel.com in November, Kerlikowkse said that those numbers were available and compiled and would be released as soon as possible. In April, the agency released those numbers and continues to update them month-to-month on its website. 

Even as the agency clears one hurdle, it finds another, releasing information about specific incidents unevenly. 

In Arizona, the agency immediately released information about a June 10 incident, when an agent shot and killed an unauthorized immigrant near Yuma after the man attacked him with his own baton. 

However, the agency withheld information about a January incident in which an agent shot and wounded a man in Apache, a small town northeast of Douglas. 

For months the agency refused to release information about the shooting, but in April Tucson Sector Chief Paul Beeson announced that the man was shot and wounded and, after being treated at a nearby hospital was detained at a facility in Eloy awaiting prosecution. 

During this same press conference, Tucson Sector agents also said that members of the agency's elite tactical team BORSTAR exchanged gunfire with smugglers in Pinal County. This incident was not known to the public until it was reported by TucsonSentinel.com that day. 

The agency has withheld the name of both people who were shot and the agents involved. 

Kerlikowske also released a report written in Feb. 2013 by the Police Executive Research Forum, a nonprofit research and policy organization with close ties to police agencies. The group evaluated 67 deadly force incidents involving Border Patrol agents from January 2010 to October 2012 and determined that the agency suffered from a "no-harm, no-foul" approach that lead to "tacit approval of bad practices." 

The report also 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." 

A year later, a report by the Homeland Security Advisory Council, a review board of eight Eight senior and retired law enforcement officers including Tucson Police Chief Roberto Villaseñor, showed that the agency continued to lack the ability to investigate agents. 

The council recommended that CBP's Office of Internal Affairs more than double the number of investigators, and take the lead role in reviewing cases of misconduct, corruption, and excessive force by Border Patrol agents and CBP officers.

The agency continues to make changes, and that shift is represented clearly in its own use-of-force numbers, which it began publishing online late last year. 

Compared to last year, the number of incidents involving firearms is down agency-wide by nearly 11 percent. However, among agents working at U.S. ports, the number of incidents involving firearms is four times higher from 2015 to 2016. 

And, agency-wide, the number of incidents involving "less-lethal" devices, which includes tasers, batons, and other weapons, has risen 27 percent from 2015 to 2016. And, there are three months left in the fiscal year. 

Tucson Sector agents also used firearms and batons, tasers, and other weapons more often than any other sector in the nation. 

Statistics from CBP also shows that of the nine instances when Border Patrol agents used a firearm nationwide, nearly half were in Tucson Sector. 

When it comes to less-lethal weapons, Tucson Sector was matched only by El Centro, a sector that covers the Imperial Valley in California, where agents used "less-lethal" weapons 83 times. 

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Paul Ingram/TucsonSentinel.com

A woman points to graffiti near the street in Nogales, Son., where Jose Antonio Elena Rodriguez, 16, died after he was shot by Border Patrol agent Lonnie Swartz in 2012. Swartz will likely face trial for the shooting in November.