FOIA Notes / Use of Force

FOIA NOTES: Call for Border Patrol to Use Restraint against Rock Throwers Censored from DHS Report

OIG-13-114 CBP Use of Force Training and Actions To Address Use

The redacted version of the DHS inspector general’s report was published in September 2013

The Department of Homeland Security (DHS) censored part of an internal report calling on U.S. Border Patrol agents to exercise restraint in confrontations with rock throwers at the U.S.-Mexico border, according to an article published in today’s Washington Post. First published by the DHS inspector general in September 2013 with significant redactions, a complete copy of the report was recently obtained by the Center for Investigative Reporting (CIR).

According to the Post, one of the redacted parts of the report recommended that border agents be trained “to de-escalate these encounters by taking cover, moving out of range and/or using less lethal weapons. Agents should not place themselves in positions where they have no alternatives to using deadly force.”

To be fair, parts of that same report that were not redacted say essentially the same thing, as reported on this blog in October. On page 19, for example, we find this passage:

During its internal review of use of force issues, UFPD [Use of Force Policy Division of U.S. Customs and Border Protection (CBP)] determined that CBP basic academies do not train new agents and officers on all less-lethal options that will be available to them. UFPD also identified high-risk situations, such as vehicular and rock assaults, that are not sufficiently trained at the basic academies… [O]ne official said trainees do not have the opportunity in a training environment to experience how they might react in an encounter in the field and practice working through their stress or fear reaction.

So why did DHS withhold information that was essentially released in another section of the report? The agency says the material was redacted as “pre-decisional” under the FOIA’s (b)(5) exemption, which protects information that forms part of the deliberative process. In this case, the observation in the body of the report that there were glaring deficiencies in training agents to use less-than-lethal force was releasable, while a specific recommendation that they be trained to face these scenarios was withheld as “pre-decisional.”

Still, the revelation in today’s Post is an important step forward in struggle to promote transparency and accountability around the use of lethal force against migrants and other individuals by Border Patrol agents and other law enforcement officials. The case illustrates just how difficult it is in the current environment to obtain even the most basic documentation on use of force incidents (and protocols) at the border in the face of the knee-jerk secrecy practiced by officials in response to FOIA requests. On-duty Border Patrol agents have killed at least 42 people since 2005, 13 of them U.S. citizens.

The previous post mentioned above detailed a frustrated effort to obtain documentation on one of these cases, the June 2010 cross-border shooting and killing of 15-year-old Sergio Adrián Hernández Guereca, which was captured on video and was the subject of an FBI investigation that was later dropped. CBP, the parent agency of the Border Patrol, still refuses to release some 314 pages on the Hernández shooting despite the fact that the U.S. Justice Department declined to pursue criminal charges in the case. It was only after we filed an appeal in the case that CBP agreed to release 162 pages of non-classified news reports it had collected about the shooting. CBP also coughed up a ten-page “Reportable Use of Force Incident” report on the shooting, which it categorized under, “Assault on Federal Officer: Shots fired by Agent.”

One thought on “FOIA NOTES: Call for Border Patrol to Use Restraint against Rock Throwers Censored from DHS Report

  1. Pingback: Migration News: January 25-31, 2014 | Migration Declassified

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