In response to congressional concerns, the Office of Inspector General has reviewed U.S. Customs and Border Protection’s (CBP) use of force in two separate incidents.
On November 25, 2018, about 1,000 migrants attempted illegal entry into the United States near the San Ysidro, California Port of Entry in the San Diego Sector. Six agents reported being hit with rocks and other projectiles.
On January 1, 2019, a group of about 100 migrants attempted to enter the United States illegally west of the San Ysidro, California Port of Entry.
OIG found that CBP’s use of tear gas on November 25, 2018 and January 1, 2019 appeared to be within CBP’s use of force policy. However, U.S. Border Patrol did not fully comply with CBP policies related to obtaining an acoustic device with an “alert tone” mode, as well as required less-lethal device training and certification.
Regarding the incident in response to threats from migrants near the San Ysidro, California Port of Entry on November 25, 2018, Border Patrol obtained an acoustic device and used it in an “alert tone” mode which OIG determined did not conform to CBP’s use of force policy because Border Patrol did not get advance authorization to have a device with this capability. Using the acoustic device in this mode may increase the risk of temporary or permanent hearing loss to those exposed to the sound and thereby increase the government’s risk of liability.
OIG noted that CBP’s own internal investigation of the November 25, 2018 incident regarding the acoustic device was incomplete and inaccurate. Therefore, CBP did not have all the information it needed to determine whether the CBP officer and Border Patrol agents involved had complied with the use of force policy.
In addition, the review found that not all Border Patrol agents had the required training and certification to carry less-lethal devices. This occurred, OIG said, because Border Patrol lacked internal controls to ensure agents had fulfilled these requirements.
OIG found that 8 of 12 Border Patrol agents who used less-lethal devices during the incident on January 1, 2019 were not certified for the less-lethal devices they were carrying. Given the emergency situation, use of the devices was not a violation of policy, but uncertified agents carrying the devices before and after the actual incident was an infraction.
OIG’s report makes four recommendations:
- The Chief, U.S. Border Patrol should ensure Border Patrol follows existing policy requiring consultation with the Law Enforcement Safety and Compliance Directorate (LESC) before conducting demonstrations or testing devices not on the CBP Authorized Equipment List if they are intended to be directed at or on an individual or a group.
- The Chief, U.S. Border Patrol should implement controls to ensure San Diego Sector’s Special Operations Detachment issues equipment only to certified individuals and retains issuance records.
- The Director, Law Enforcement Safety and Compliance Directorate, should ensure CBP stakeholders are formally notified of the requirement to consult LESC prior to acquiring, purchasing, borrowing, or utilizing any item marketed with capabilities intended to modify the behavior or compel compliance of an individual or group with pain or discomfort.
- The Assistant Commissioner, Office of Professional Responsibility, should use the findings and deficiencies noted regarding the investigation, reporting, and review of the November 25, 2018 use of force incident for training and education to improve the overall quality of The Use of Force Incident Guide products, as well as the efficacy of Use of Force Review Board proceedings.
CBP concurred with all four recommendations and stated it expects to complete these actions by September 30, 2020.
CBP maintained that, in light of the threat created by the unprecedented surge of individuals attempting illegal entry during the incidents in question, Border Patrol agents responded reasonably and within their statutory authority, including with respect to use of force. CBP stated the collective response contributed to de-escalation and prevented injury to all involved.
However, CBP disagreed with the OIG’s characterization of the Office of Professional Responsibility’s (OPR) awareness of the use of the acoustic device. CBP acknowledged OPR was aware of the use of the acoustic device as a public address system. However, according to CBP, at the time of its investigation, OPR was not aware of the capability for, or use of, the device in alert tone. OPR however told OIG inspectors that they knew the acoustic device was used in alert tone mode, but did not report it as a use of force. OPR officials told OIG they did not believe the alert tone was a use of force, and attributed the inconsistencies found in their investigation to errors resulting from OPR’s lack of understanding of the device’s functionality.