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Customs and Border Protection

ACLU sues to get report use of force report on agencies

Bob Ortega
The Arizona Republic
Portion of a fence along the U.S.-Mexico border.

PHOENIX — The American Civil Liberties Union filed a lawsuit Thursday in federal court seeking to force Customs and Border Protection to release a review critical of the use of force by CBP officers and Border Patrol agents.

The ACLU said it had received no response of any kind to a Freedom of Information Act request it filed with the agency on Feb. 21 seeking a copy of the review.

Various news media, including The Arizona Republic, and other civil-rights groups also have filed requests for the report by the Police Executive Research Forum. The independent law-enforcement research group was commissioned by CBP to review and recommend changes to the agency's use-of-force policies and practices. But the agency has refused to release the forum's findings, which are reportedly blistering.

Customs and Border Protection, with more than 42,000 agents and officers, is the largest federal law-enforcement agency in the country. The public has a right to know issues relating to the policies agents are supposed to follow and how CBP holds agents accountable, said Mitra Ebadolahi, staff attorney for the ACLU's Border Litigation Project in San Diego.

"Unfortunately, both the Department of Homeland Security and Customs and Border Protection have a pretty poor track record of responding to properly filed Freedom of Information Act requests," she said.

CBP is under the umbrella of the Department of Homeland Security, and both have been under increasing pressure to address public accountability and lack of transparency when agents use deadly force. As The Republic has reported, at least 44 people have been killed by on-duty agents or officers since 2005; but no agents or officers have been known to face any consequences in any of those deaths. Those deaths include three cases in which agents shot unarmed teenagers in the back. The ACLU suit cited these and other reports in seeking disclosure.

In 2012, 16 members of Congress demanded that Homeland Security investigate CBP's use-of-force practices after PBS aired a documentary by San Diego filmmaker Juan Carlos Frey. The program included a cellphone video showing Anastacio Hernandez Rojas being beaten and repeatedly stunned with a Taser by officers at the San Ysidro border crossing. Hernandez Rojas died of his injuries.

In response, CBP said its use-of-force practices would be reviewed internally as well as by Homeland Security's Office of Inspector General and by the Police Executive Research Forum. But last September, CBP redacted all the forum's recommendations from a heavily censored version of the OIG report that it released to Congress and the public. At the same time, Border Patrol Chief Michael Fisher said CBP wouldn't adopt several of the forum's recommendations.

In February, the Los Angeles Times reported that recommendations included that border agents be barred from shooting at vehicles unless its occupants are trying to kill them and from shooting people who throw things that can't cause serious physical injury.

CBP didn't respond by deadline to calls and e-mails seeking comment on the lawsuit, which was filed in the U.S. District Court for the Southern District of California. Homeland Security and CBP will have 30 days to file a response.

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