‘Severity of crime’ must be considered in Border Patrol pursuits
Come May, border law enforcement agents will be prohibited from engaging in a vehicle pursuit solely on the grounds of a vehicle failing to stop at a checkpoint or yielding to an agent attempting to pull it over.
Instead, Border Patrol agents must consider the “government’s interest” before chasing a vehicle: What’s the severity of the crime believed to have been committed by those involved and the level of the subject’s threat? Additionally, risks to the vehicle’s occupants must also be weighed alongside those to public safety and the agents themselves – a point not previously outlined in guidelines.
Meant to reduce the number of incidents that have led to dozens of deaths, the new Department of Homeland Security pursuit guidelines announced earlier this month are being regarded by migrant and civil rights advocacy groups as a positive first step.
“The policy is a significant improvement on the prior version,” said Rebecca Sheff, senior staff attorney at the ACLU of New Mexico, which is representing several family members of migrants killed during high-speed vehicle pursuits involving the Border Patrol. “The main reason is that it brings CBP into alignment with many best practices across law enforcement about essentially what the rules are for vehicle pursuits.”
While the new guidelines don’t prohibit vehicle pursuits, they do expand on the definition of “objectively reasonable” – and also provide stronger oversight and accountability than years past.
“Critically, this policy does not prohibit pursuits,” U.S. Customs and Border Protection said in a January press release. “CBP’s unique border security mission requires that it retain the ability to pursue vehicles.”
The agency said the policy entrusts agents with the ability to conduct pursuits based on “the severity of the crime and the level of threat posed by the subject and foreseeable risk in their analysis, other available means to apprehend suspects, and the law enforcement need for pursuits.”
Agents may engage in vehicular pursuits if it is necessary and “objectively reasonable” after a vehicle failed to stop at a checkpoint or port of entry, entered the United States at or between a port of entry, or failed to yield when an agent attempted to stop them.
“Objectively reasonable” means agents must consider the severity of the crime at issue not including the mere act of fleeing and whether apprehending the subjects at that time “clearly outweighs” the foreseeable risk to the public, other agents and law enforcement officers and the vehicle occupants.
Sheff said that’s perhaps the biggest change to the policy.
“Agents and officers under the new policy will be asked to assess not only risk of harm to themselves or to the public at large, but also to folks that are occupants of the subject vehicle that’s being pursued,” she said. “That wasn’t really a consideration before.”
Sheff points to one technique that will no longer be allowed under the new guidelines: The PIT maneuver, where an agent’s car strikes the rear of a fleeing vehicle. The precision immobilization technique is supposed to make the fleeing vehicle spin out and come to a stop – a move experts have called highly dangerous at speeds above 35 mph.
More than 90 people died in vehicle pursuits involving the Border Patrol as of Nov. 15, according to the latest figures on the ACLU’s tracker.
Bernardo Rafael Cruz, an attorney with the ACLU of Texas, said the number of incidents involving pursuits in the region doubled from just under 150 in fiscal year 2021 to more than 300 in fiscal year 2022.
“A lot more people got injured during that time and it was very concerning,” he said.
Under the new policies, Cruz said, the default is not to engage in a pursuit unless there’s extreme circumstances.
“If a car is already exceeding the speed limit and is overloaded,” Cruz said. “There’s a greater risk for rollover or accident so that has to be considered.”
Just days before the policy changes were announced this month, a crash involving a Border Patrol pursuit in Santa Teresa in southern New Mexico killed two people and injured eight others. Customs and Border Protection in a statement called the crash a “human smuggling incident.”
A 2019 study by ProPublica found that nearly one in three border patrol car chases ends in a crash. The nonprofit news organization, together with the Los Angeles Times, reviewed the pursuit policies of police departments in the five largest U.S. cities and a dozen jurisdictions in the states that touch the border: All but one were more restrictive than the Border Patrol’s guidelines.
“CBP until now has had pretty lax policies that pose a serious risk of harm to border communities and also were out of keeping with the other practices across law enforcement,” Sheff said.
One of the largest crashes involving a pursuit in the region happened in June 2020 when seven people, including four El Paso teenagers, were killed in a vehicle fleeing the Border Patrol along Paisano Drive in Downtown El Paso. The vehicle carrying 10 people struck a trailer on the road. The other three people were injured.
The magnitude of that case sparked even more scrutiny about Border Patrol pursuits, with civil rights advocacy groups and area lawmakers raising concerns over the practice and calling for change.
Aside from better defining what constitutes a reasonable chase, the updated guidelines also more clearly state how and when pursuits are to be recorded, outline reporting requirements and change how incidents are investigated.
“It clarifies the role of supervisors and establishes clear reporting requirements on what specific steps agents have to follow,” Cruz said, adding that the new reporting rules make for greater transparency from the DHS agencies.
The policy creates Vehicular Pursuits Review Committees, which will review incident reports to determine if they complied with CBP policy, identify any potential misconduct and assess any issues related to training, equipment or the policy itself.
“I think it signals, most importantly, that the agency wants to be scrutinizing how this is being implemented in the field, learning lessons in real time – from the good, the bad and the ugly of how pursuits are playing out under the new policy,” Sheff said.
The changes follow a 2021 review of agency pursuits by the CBP’s Law Enforcement Safety and Compliance Directorate after years of criticism and calls to action by migrant and civil rights groups, as well as lawsuits by the ACLU of Texas and New Mexico on behalf of families of some of those killed in crashes during pursuits.
CBP reviewed more than two dozen vehicle pursuit policies from various enforcement agencies across the country, as well as model policies created by states, the agency said in a news release.
Last fall, the DHS did away with critical incident teams – evidence collection teams that critics said put agencies in charge of investigating themselves in cases that might involve misconduct by the agents themselves. The teams were disbanded in October. Internal investigations are now handled by the Office of Professional Responsibility.
This report was originally published on El Paso Matters.