NEW DMCA BLOG BY DMCA PARTNER DAVID ARMENDARIZ: BORDER PATROL AND THE UNLAWFUL USE OF FORCE

Immigration Blog

NEW DMCA BLOG BY DMCA PARTNER DAVID ARMENDARIZ: BORDER PATROL AND THE UNLAWFUL USE OF FORCE

The Border Patrol (BP) is the federal law enforcement agency whose functions were previously performed by the Immigration and Naturalization Service (INS). It is now part of U.S. Customs and Border Protection (CBP), an agency within the Department of Homeland Security (DHS).

The last couple of years have been tough for the Border Patrol. The use of deadly force by BP agents and CBP officers has drawn increased public and congressional scrutiny. Earlier this year, CBP fought to avoid the release of a highly critical report (http://www.cbp.gov/sites/default/files/documents/PERFReport.pdf) by a law-enforcement panel of its use-of-force practices, releasing it only after it was leaked to the media. That study examined dozens of use-of-force incidents, many of them deadly, concluding that too many of them weren’t justifiable and that the investigations into them were neither thorough nor careful.

In Hernandez v. U.S., 757 F.3d 249 (5th Cir. 2014), the Fifth Circuit Court of Appeals, held that a Border Patrol agent could be sued individually for damages in what is known as a Bivens action for shooting a young boy who was on the Mexican side of the border. The boy is alleged to have been playing a game with friends that involved running up to touch the barbed-wire fence separating Mexico and the United States. The allegation is that after the Border Patrol agent arrived and seized one of Hernandez’s friends, Hernandez retreated beneath the pillars of a bridge where he was shot dead, in the face, by the agent.

In other news, James Tomsheck, is said to have been forced out of his position as the internal affairs chief for U.S. Customs and Border Protection, amid criticism that he failed to investigate hundreds of allegations of inappropriate use of force by armed border agents, officials said. According to news reports, Tomsheck turned right around and pointed the finger at the agency itself, complaining that the agency’s system was engineered to interfere with his efforts to hold agents accountable and that some persons in the agency either fabricated or distorted information about excessive force incidents.

In response to all the criticism, CBP released this year a new “Use of Force Policy, Guidelines and Procedures Handbook” (http://www.cbp.gov/sites/default/files/documents/UseofForcePolicyHandboo…) that incorporates some recommended changes and the agency also very recently announced that it will begin testing the use of body cameras on its agents.

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