The U.S. checkpoints on highways near the Mexican border, with trained dogs and expensive scanning equipment, are supposed to stop drugs and immigrants without legal status from heading north. But newly released complaints against U.S. Customs and Border Protection paint a disquieting portrait of the interactions between agents and many of those they stopped and searched.
Drivers repeatedly accused checkpoint border agents of improper gunplay, racial profiling, excessive roughness and verbal abuse.
Last year, in southeastern Arizona, a military veteran said his children shuddered with fear in the back seat as agents repeatedly asked him if the children were really his. A woman at a checkpoint between Phoenix and Tucson said an agent threatened to use a stun gun on her brother in 2012 after he asked why their vehicle was being searched. And at a California checkpoint in 2013, a man said an agent approached him, hand on his holstered weapon, and demanded: “How would you like to have a gun pointed at your face?”
The accounts were culled from nearly 6,000 pages of complaints, arrest statistics and other records released in recent months to the American Civil Liberties Union of Arizona by Customs and Border Protection’s overseer, the Department of Homeland Security, after the ACLU sued the department for access.
Collectively, the documents, detailing encounters between motorists and border agents from January 2011 to August 2014, portray an agency whose fractured oversight system has enabled at least some agents working along the southern border to stretch the limits of law and professional courtesy while rarely facing meaningful consequences.
Among the 142 complaints obtained by the ACLU, only one seems to have resulted in disciplinary action: An agent received a one-day suspension for unjustifiably stopping a vehicle, apparently driven by the son of a retired Border Patrol agent.
James Lyall, an ACLU lawyer dedicated to the border, said the records not only confirmed the types of stories his office regularly hears from border residents but also suggested that Customs and Border Protection has underreported the number of civil rights complaints it has received.
For example, in reports to Congress for the 2012 fiscal year, oversight agencies listed three complaints accusing agents of violating the Fourth Amendment, which prohibits unreasonable searches and seizures, according to an ACLU report. At the same time, the records the ACLU received include 81 such accusations filed during the same period against agents assigned to the Border Patrol’s Tucson and Yuma sectors, only two of its 20 regional divisions along the southern and northern borders.
“CBP’s own records paint a disturbing picture of lawlessness and impunity, in which the agency continually operates without any regard for accepted best practices and agents commit widespread abuses knowing they won’t be held accountable,” Lyall said.
Agency officials declined to respond to requests for comment on the complaints, directing reporters to remarks from Commissioner R. Gil Kerlikowske that highlight his effort to make openness and accountability top priorities when he took over the agency in March 2014. One agency official held up Friday’s arraignment of a Border Patrol agent, Lonnie Swartz, on the cross-border killing of a 16-year-old boy, José Antonio Elena Rodriguez, as an example that no one is above the law.
But civil rights lawyers, along with members of Congress from border towns in Texas and Arizona, have long argued that Customs and Border Protection works according to its own rules, resisting calls for greater transparency and accountability.
As evidence, they note that since Jan. 1, 2010, 33 people have died in encounters with border and customs agents but that so far Swartz has been the only one to face federal criminal charges. He pleaded not guilty to second-degree murder in U.S. District Court in Tucson on Friday.
Many of the families of those who were killed have also complained that the agency has fought hard to keep the names of agents implicated in the killings under seal. José Antonio’s family had to sue to learn Swartz’s identity.
The agency has also been slow to investigate when shots are fired but no injuries are confirmed and failed to track the number of stops at checkpoints or by roving patrols unless the stops result in arrests. A 2013 report by the nonprofit Police Executive Research Forum said such “no harm, no foul” procedures can lead to a “tacit approval of bad practices.”
Kerlikowske, in response, has convened panels and pushed for changes in the way the agency does business.
In particular, he has championed the recommendations released in June by the Integrity Advisory Panel, of which Commissioner William J. Bratton of New York is vice chairman. Its recommendations for the agency ranged from basic — “emphasize that its overarching responsibility is to preserve human life” — to practical, such as enforcing requirements that all uniformed personnel wear visible name tags at all times and improving Spanish language abilities at its call centers, where many of the abuse complaints are logged.
“I am taking steps to make transparency and accountability hallmarks of my tenure at CBP,” Kerlikowske said in April during a speech at the Brookings Institution in Washington. “The public’s trust in us depends on it.”
This month he announced the latest of several policy updates, calling for proper safekeeping of the personal effects of migrants apprehended while illegally crossing the border, adequate standards of hygiene and temperature in holding cells, and specific language on gender identity, which did not exist.
On Tuesday, the agency reported that use-of-force incidents dropped by 26 percent over the past fiscal year — to 768 in the 2015 fiscal year, which ended Sept. 30, from 1,037 in the 2014 fiscal year. There were 28 incidents involving firearms in the 2015 fiscal year, one fewer than in the previous fiscal year.
In a statement, Kerlikowske said that he was “encouraged by the progress” but that “more can be done.”
Civil rights advocates and elected officials say the agency still has a long way to go.
The civil rights complaints filed by motorists at checkpoints and roving patrols in Arizona and southeastern California that are part of the ACLU records — as well as hundreds of other cases found in complaint records obtained independently by The New York Times — are full of accusations of lengthy detentions and damaged property, such as ripped carpets and seats as agents presumably searched for drugs.
Often, drivers claimed that the agents’ aggressive reactions were prompted by a simple question: Why had their vehicle been picked for an inspection?
Rep. Raúl M. Grijalva, an Arizona Democrat whose district includes border communities from Nogales to Yuma, said his office has received numerous such complaints from constituents, who speak of “being frustrated” and “losing confidence” over the Border Patrol’s “justifications and judgment.”
“Citizens, permanent legal residents, people who have lived in the borderlands for generations — that’s who’s making these complaints,” said Grijalva, who added that his car was searched this year at a checkpoint south of Tucson. “People make the complaints, but their complaints go nowhere. There’s no acknowledgment, absolutely no response.”
Many of the complaints that he and the ACLU have received make allegations of ethnic profiling. One, by a lawyer for the city of Nogales, says: “How many non-Hispanic-looking persons get subjected to non-immigration questions? How many declarations of U.S. citizenship by non-Hispanic-looking persons are subject to further questioning? The tired excuse of ‘the dog alerted’ has worn incredibly thin as a reason to search Hispanics.”
Agents rely heavily on drug-sniffing dogs to inspect the thousands of cars that go through the Border Patrol’s busiest checkpoints, tollbooth-like way stations near the border. But the agency does not seem to keep track of when dogs alert, how often they alert and how often their alerts are wrong.
Jane Bambauer, an associate professor of law at the University of Arizona, said this type of detailed record-keeping was “critical to accountability” because it would allow the agency to assess if a program is working or not.
“If they’re only reporting when their hunches turn out to be correct, we can’t say if their hunches have been reliable,” said Bambauer, who joined the ACLU in its public records request, which the Homeland Security Department ignored until it was sued. “What you end up with is a pretty aggressive agency that doesn’t know how to measure the effectiveness of all the power that it wields.”