Tucson Border Patrol use of force still highest in nation

Use-of-force incidents by U.S. Border Patrol agents in the Tucson Sector continue to top other regions. In one recent incident, a Tucson Sector Border Patrol agent shot a U.S. citizen suspected of human smuggling and that man later died.

The number of use-of-force incidents in the Tucson Sector has been the highest in the nation since fiscal year 2021, Customs and Border Protection data show. Data from the current fiscal year, from October through February, shows 117 incidents, with the next highest being 89 in the El Paso Sector.

Officials say those numbers should be considered in relation to the number of assaults on agents and the demographics of people being apprehended.

“Use of force incidents will always vary by location,” Customs and Border Protection said in a statement. “Each USBP area of responsibility are extremely different environments, with different illicit activity, different demographics of subjects encountered, different flow rates of traffic. Differing operating environments present different challenges and threats to our personnel and the general public. USBP agents are trained to use force only when it is reasonable and necessary.”

So far in fiscal 2023, nearly a quarter of the use-of-force incidents nationwide have been in the Tucson Sector, although the sector has only had about a 9% of the apprehensions. As well, Tucson Sector has had far more use-of-force incidents involving a firearm since the beginning of fiscal year 2020 , at 11 incidents. The next highest is the El Paso Sector, with seven.

During the recent incident, which involved a shooting death on March 14 close to the port of entry in Sasabe, Arizona, a vehicle suspected of human smuggling failed to yield. An agent caught up to the vehicle, and after breaking both driver-side windows with his baton, he grabbed the driver’s forearm. The driver, a U.S. citizen, changed gears and started turning the steering wheel, and the agent shot him once, according to an agency statement.

There was another U.S. citizen in the front passenger seat, two undocumented migrants in the back seat and three undocumented migrants in the trunk.

The Pima County Sheriff’s Office later said the driver died at the scene. The agent is on administrative leave, which is standard practice at this point in an investigation following use of deadly force, the statement said. The incident is under investigation by the Pima County Sheriff’s Department and the FBI. It is under review by CBP’s Office of Professional Responsibility and has been referred to DHS’s Office of Inspector General.

Reasons for more use-of-force

One factor in use-of-force numbers is the high numbers of apprehensions in the Tucson Sector, although not every sector with high apprehensions has high use-of-force numbers. For example, the Rio Grande Valley and Del Rio sectors have more apprehensions but far fewer use-of-force incidents at 25 and 30, respectively, so far this fiscal year.

Demographics of subjects encountered can affect use-of-force incidents.

“Just like the terrain, the arrest demographics are different for each sector,” said National Border Patrol Chief Raul Ortiz in a tweet in February. “So far, in FY23, Tucson Sector has apprehended 55,372 single adult males. These individuals actively try to evade detection by running, hiding, and wearing camouflage.”

As well, single adults from Mexico and closer Central American countries may, in recent years, be more likely to try and evade Border Patrol because they are more likely to be immediately expelled from the country under public health policy Title 42, which allows the federal government to send migrants from certain directly to Mexico rather than enter them into immigration law where they may have an opportunity to request asylum.

Adam Isacson, Director for Defense Oversight with research and advocacy organization Advocacy for Human Rights in the Americas, says the demographic of migrants could play a role. The Tucson Sector has a migrant population that is less asylum-seeking compared to some other sectors, he says.

“The likelihood of a migrant wanting to turn themselves in is lower in Tucson right now than in those sectors,” he says, because of smuggler patterns that push more people who are likely to be subject to Title 42 through Tucson Sector while more people likely to be allowed to enter the legal immigration process are pushed through areas like Yuma.

New policy could spur change

Another reason the use-of-force numbers are so high in the Tucson Sector is because the number of vehicle pursuits are so high, which are counted in the use-of-force incidents. Tucson has the highest number of vehicle pursuits counted as use-of-force, at 83 so far this fiscal year, from October through February. The El Paso Sector and the San Diego Sector have 51 and 47 incidents, respectively.

Many vehicle pursuits are related to suspected human-smuggling incidents. Criminal organizations are finding people, especially young people, on social media in cities like Tucson and Phoenix to pick up migrants near the border, and officials say they usually don’t pull over for law enforcement.

Earlier this year, the Department of Homeland Security released a new use-of-force policy and CBP released a new policy on vehicle pursuits.

The pursuit policy was released in the wake of the Department of Homeland Security opening complaints last year, alleging violations of civil rights or civil liberties resulting from incidents related to vehicle pursuits by Customs and Border Protection employees. The complaints alleged that CBP personnel unnecessarily engaged in vehicle pursuits at high rates of speeds that were unwarranted given the alleged crime and that they deployed vehicle immobilization devices or used pursuit techniques that potentially led to serious injury or death.

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The changes to DHS’s use-of-force policy will have a negligible effect on CBP’s use-of-force policy, which was already more restrictive, CBP officials said.

Isacson, with Advocacy for Human Rights in the Americas, agrees that the new use-of-force policy will necessitate few changes in CBP. But if implemented correctly, CBP’s new pursuit policy — which goes into effect in May — will have positive changes, he said, specifically the requirement to desist from some chases that get too fast or that are in more populated areas.

“It hasn’t gone into effect yet, so we’ll have to see how it plays out,” he said.

New policy not enough, some say

Migrant advocacy groups say the DHS policy does not go far enough to protect human life and hold officials accountable who use it inappropriately.

The Southern Border Communities Coalition commended the Biden administration for the use-of-force policy reform and improved accountability mechanisms, but said the new policy falls short of meeting international human rights standards.

The standard for the use of lethal force is that it should only be used when necessary, but the Coalition said that’s less than the international standard of “necessary and proportionate.”

While most federal agencies in the U.S. follow a reasonableness standard for use of force, looking at whether the response was reasonable for the situation, the international standard is whether force was necessary and proportional, Isacson says.

“So it’s not just that he used force, but was it an appropriate level of force for the situation?” he says. “As long as you’re on the reasonableness standard, you can pretty much determine that most cases, maybe nearly all cases of serious use-of-force don’t violate policy.”

In CBP’s fiscal year 2021 Report on Internal Investigations and Employee Accountability, the most recent one available, the agency’s Office of Professional Responsibility opened investigations into 684 use-of-force incidents, 21 of which involved the use of deadly force or resulted in serious injury or death and occurred in Arizona, California, Indiana, Texas and New Mexico.

While the results of those investigations aren’t yet public, CBP reviewed seven significant use of force incidents that year, which occurred prior to fiscal year 2021. The agency ruled that five were within policy and there was no misconduct. Two were found out of policy, of which one is open and pending action and the other was referred to the agency’s Joint Intake Center for investigation, according to the report released in March 2022.

In some use-of-force incidents, the case is investigated by local law enforcement or other federal agencies, but Isacson points out that CBP often investigates itself in cases of use-of-force and possible misconduct.

“It’s sort of unique to CBP, to have this ability to investigate itself,” he said. “So if it’s a criminal matter, we certainly recommend getting CBP out of the picture.”

Use-of-force incidents ‘proportional’

Officials also say use-of-force incidents should be looked at in relation to the number of assaults on agents.

When comparing the number of assaults on agents to use-of-force incidents by agents that don’t involve a vehicle, which is likely a pursuit incident, the numbers are often comparable.

Out of the Tucson Sector’s 115 use-of-force incidents so far this fiscal year, 32 didn’t involve a vehicle. In that same period, there were 35 assault cases against an agent.

“What we don’t know from numbers is how proportionate those responses are,” Isacson says. “If the Border Patrol agent thought there was some sort of provocation … was it so severe that it required that kind of use of force?”