Deadly border agent incidents cloaked in silence

Jose Antonio Elena Rodriguez was shot 10 times in the back and the head 14 months ago here in Nogales, Sonora. Photo by Nick Oza /The Republic

Jose Antonio Elena Rodriguez was shot 10 times in the back and the head 14 months ago here in Nogales, Sonora. Photo by Nick Oza /The Republic

Republic investigation finds little public accountability in Southwest Border killings

Part 1 of the Series Force at the Border

By Bob Ortega and Rob O’Dell

A ghost is haunting Nogales.

His face stares out from shop windows. It is plastered on handbills and painted on walls under the shadow of the U.S.-Mexican border fence here. Candles and doves are stenciled onto steel posts of the fence itself in his memory, each a promise not to forget the night, 14 months ago, when teenager Jose Antonio Elena Rodriguez was shot 10 times in the back and head by one or more Border Patrol agents firing through the fence into Mexico.

Jose Antonio Elena Rodriguez was shot 10 times in the back and the head 14 months ago here in Nogales, Sonora. Photo by Nick Oza /The Republic

Jose Antonio Elena Rodriguez was shot 10 times in the back and the head 14 months ago here in Nogales, Sonora. Photo by Nick Oza /The Republic

Similar specters haunt other border towns in Arizona, Texas and California, with the families of the dead charging that Border Patrol agents time and again have killed Mexicans and U.S. citizens with impunity.

An Arizona Republic investigation has found Border Patrol agents who use deadly force face few, if any, public repercussions, even in cases in which the justification for the shooting seems dubious.

Since 2005, on-duty Border Patrol agents and Customs and Border Protection officers have killed at least 42 people, including at least 13 Americans.

These deaths, all but four of which occurred along or near the southwest border, vary from strongly justifiable to highly questionable. CBP officials say agents who use excessive force are disciplined. But they won’t say who, when, or what discipline, with the exception of a short administrative leave. In none of the 42 deaths is any agent or officer publicly known to have faced consequences — not from the Border Patrol, not from Customs and Border Protection or Homeland Security, not from the Department of Justice, and not, ultimately, from criminal or civil courts.

Internal discipline is a black hole. There have been no publicly disclosed repercussions — even when, as has happened at least three times, agents shot unarmed teenagers in the back.

That appearance of a lack of accountability has been fed by a culture of secrecy about agents’ use of deadly force.

CBP leaders refuse to release their policies, calling them law-enforcement sensitive. They won’t disclose the names of agents who use deadly force. They won’t say, in any instance, whether deadly force was justified. The lack of transparency goes against the “best practices” that national police organizations recommend for dealing with deadly-force incidents.

The Republic found the vast majority of Border Patrol agents and Customs and Border Protection officers respond to conflict with restraint. Even when facing potentially deadly force, most agents and officers don’t turn to their firearms. But agents who killed mostly did so under circumstances virtually identical to hundreds of encounters that other agents resolved without lethal force and without serious injuries to either side.

In the last four years, rock-throwing incidents accounted for eight of the 24 instances in which agents killed people. The Border Patrol considers rocks deadly weapons that justify lethal force, even though it is rare for agents to be injured in “rockings,” as they call them, and even though, as agents’ reports showed, several less-lethal long-distance weapons are highly effective against rock-throwers, The Republic found.

The vast majority of rockings take place in a few, well-known, mostly urban spots along the border. But the Border Patrol doesn’t require agents working in those areas to carry or use less-lethal alternatives.

And when agents use deadly force, investigations by CBP and the FBI can take years to be released, yet can be perfunctory, and are typically opaque.

The Republic reviewed nearly 1,600 use-of-force cases by the Border Patrol and CBP between 2010 and May 2012 — some 12,000 pages of documents that it took the agency nearly a year to release. The Republic also examined many other documents relating to use-of-force deaths and use of firearms by agents since 2005. (CBP includes both Border Patrol agents, who work between ports of entry, and Customs and Border Protection officers, who work at ports of entry.)

The investigation offers the most comprehensive look to date into the use of force by CBP and the Border Patrol, which, with roughly 43,000 agents and officers, comprise the country’s largest law-enforcement body.

Border Patrol agents do face dangers. Of the 22 who died in the line of duty in the last nine years, most died in vehicle or training accidents. Four died in direct conflicts with aggressors – including one case in which Border Patrol agents fired on one another.

Of the 42 use-of-force fatalities, some — such as the five cases in which agents shot and killed people who fired at them first — provoked little dispute.

But in nine of the 24 use-of-force deaths since 2010, agents’ accounts were contradicted by other witnesses or by other law-enforcement officers. In three cases, widely distributed videos conflicted with agents’ reports of what happened.

In reviewing these incidents, The Republic filed more than 120 Freedom of Information Act and public-records requests (and many appeals) with six federal departments or agencies and seven states.

Often, records were heavily redacted and incomplete. For example, The Republic documented, through other sources, four deaths at the hands of agents that were not included in CBP’s nearly 1,600 use-of-force incident reports. In many reports, the information is so incomplete that it’s impossible to determine what happened.

Because of that lack of transparency, it can be difficult to determine the truth when agents’ accounts differ from witnesses.

Homeland Security’s Office of Inspector General, in a recent report requested by members of Congress, found that many agents don’t understand their use-of-force policy. Before the report was publicly released, DHS and CBP officials blacked out recommendations that agents being assaulted with rocks should respond with less-lethal alternatives.

Border Patrol Chief Michael Fisher insisted agents will continue to use deadly force against rock throwers, because rocks are potentially deadly weapons.

CBP, Homeland Security and Border Patrol officials declined repeated interview requests, agreeing only to a limited, off-the-record discussion from which the agency would approve a few limited statements. CBP officials declined to discuss the agency’s lack of transparency on the record.

But Acting Deputy CBP Commissioner Kevin McAleenan said CBP doesn’t control the release of information or pace of investigations, pointing to the FBI and Homeland Security.

Sen. Jeff Flake, R-Ariz., one of the architects of a immigration reform bill in the U.S. Senate that would increase the size of the Border Patrol, said border agents have “a tough job.”

The senator added: “Any loss of life incurred in the course of Border Patrol duties, as with any other government agency, should be given a close look.”

On the night he died, Oct. 10, 2012, Jose Antonio Elena Rodriguez told his grandmother, Taide Elena, that he was going to walk to the nearby Oxxo convenience store where his brother Diego worked, off Calle Internacional. That street runs below the border fence between Nogales, Sonora, and Nogales, Ariz.

“It’s our neighborhood,” said Elena, sitting on the couch of her cinder-block home, her hands balled together, two days after her grandson was shot. “He was a good boy; he’d come and go. I didn’t think much about it.”

Elena had been minding the boys for several months. Their father died three years earlier; their mother, Araceli Rodriguez, was trying to get the bank where she worked to transfer her to Nogales.

Jose Antonio, 16, had taken the separation hard, she said. He’d had to suspend school when they ran short of money for his tuition, but he was excited about starting classes again the next week.

That night, as the boy neared Calle Internacional, police and Border Patrol agents across the border responded to a 911 call about men hoisting bundles of marijuana over the fence.

Nogales Police K-9 officer John Zuniga spotted two men trying to climb back into Mexico. Agents yelled at the men to come down, Zuniga wrote in his report. He “heard several rocks start hitting the ground, and I looked up and could see the rocks flying through the air.”

As he took his dog back to his car, Zuniga heard gunfire. He looked up and saw an agent at the fence. Based on ballistics reports from Sonora state police, at least one agent fired 14 hollow-point bullets from a standard-issue .40-caliber Heckler & Koch pistol through the fence, killing Elena Rodriguez.

The Border Patrol hasn’t released the incident report. It hasn’t identified the agent or agents involved. In an initial statement, officials said agents were assaulted with rocks.

“After verbal commands from agents to cease were ignored, one agent then discharged his service firearm. One of the subjects appeared to have been hit,” the statement said. Subsequently, the agency has declined to confirm whether more than one agent opened fire.

But neither Zuniga nor another Nogales police officer there reported hearing any shouted orders. Three witnesses on the Mexican side said they heard no shouts before the gunfire. Isidro Alvarado, a security guard, said Elena Rodriguez was walking about 20 feet ahead of him when two youths ran past them away from the fence. Then he heard gunshots and saw Elena Rodriguez fall.

CBP won’t make public its use-of-force policy. Agency officials have said agents are authorized to fire when they face potentially deadly force, including rocks. However, if they can do so safely, agents must issue a verbal warning before firing, a Homeland Security memo states.

Where Elena Rodriguez died, the Mexican side of the fence is about 25 feet lower than the U.S. side. Due to the arc that rocks thrown over the fence there would have to follow, it would be all but impossible for a rock thrown from Mexico to hit someone near the fence on the U.S. side. And the agent (or agents) would have had to be standing at the fence to fire through the 3 and 1/2-inch gaps between the bars.

Araceli Rodriguez, who now lives in Nogales, said that, when the FBI interviewed her, she believed that “they’re looking for some way to blame my son, some way to make it his fault.” She asked why CBP hasn’t released or let her attorney see video from a border-fence camera less than 50 yards from where her son was killed.

“Do you think … that if they had a video of my son throwing rocks, they wouldn’t have produced it by now? They wouldn’t have spread it for all the world to see? Of course they would have,” she said.

CBP officials declined to discuss the case, citing an ongoing FBI investigation.

Whether Elena Rodriguez was simply walking by or was throwing rocks, the circumstances under which he was shot were similar to those in scores of other alleged “rocking” incidents that agents resolved without firearms.

Supporters from several Arizona base human rights groups came for vigil from the US Nogales side. Photo by Nick Oza /The Republic

Supporters from several Arizona base human rights groups came for vigil from the US Nogales side. Photo by Nick Oza /The Republic

Incident reports suggest that lookouts in Mexico often throw rocks at agents to try to help drug mules or undocumented migrants get away. In 2012, rockings accounted for nearly half of the 555 assaults on agents reported by CBP.

On the whole, agents rarely turn to deadly force. In the nearly 1,600 use-of-force incident reports reviewed by The Republic, agents resorted to gunfire about 4 percent of the time, and killed people less than 1 percent of the time from 2010 through May 2012.

Eight times since 2010, Border Patrol agents killed people whom they said were throwing rocks at them, including six across the border. But in at least 160 other reported cases, agents resolved cross-border rock-throwing with less-lethal weapons that can fire, for example, balls filled with pepper spray. In those cases, no one died and almost no one was seriously hurt — including the agents.

No agent has died from being hit with a rock; agents reported injuries in two of those 160 cross-border rockings.

CBP agents and officers can carry two categories of weapons: Lethal weapons include the H&K pistols issued to all agents and optional firearms such as shotguns and M-4 rifles. “Less lethal” weapons include close and long-range options.

For close range, agents must carry either cans of pepper spray or collapsible steel batons (which look like narrow baseball bats); most carry both.

Of the long-range less-lethal weapons, agents most commonly use two: The pepper-spray balls launching system, essentially a modified paintball gun, can fire more than 10 balls a second filled with pepper spray, letting agents saturate an area with irritating vapors. The longer-range FN-303, a rifle-style weapon, uses compressed air to shoot “kinetic impact” projectiles, which are meant to incapacitate people without killing them.

Agents who used those less-lethal weapons reported they were usually highly effective at stopping rock throwers.

On Sept. 10, 2010, an agent being assaulted with rocks from the same street where Elena Rodriguez would be killed wrote that he used his pepper-spray ball launcher to saturate the area, firing “volleys of four to six rounds each near where the assailants were throwing the rocks. The rock throwers retreated from the area without further incident.”

On April 5, 2011, another agent in the same area was trying to catch someone, “when I felt a rock strike me on my right shoulder blade. I immediately turned and started saturating the area with my pepper ball launching system as several more rocks were thrown at me … the situation was put under control. There were no injuries.”

The Border Patrol doesn’t require agents to be trained in, to carry or to use any of the long-range less-lethal devices. They are strictly optional. McAleenan said CBP is looking at giving agents more “less-lethal options in high risk areas,” among other possible changes.

Carlos LaMadrid, a 19-year-old American, was smuggling marijuana when he was killed on March 21, 2011.

LaMadrid fled toward the Mexican border as Douglas police tried to pull over his Chevy Avalanche pickup truck. Douglas Police Officer Mark Gonzales, behind him, reported that LaMadrid jammed the truck to a stop as a Border Patrol Chevy Tahoe pulled up, colliding alongside. LaMadrid and a passenger leaped out and ran to a ladder. Someone already on top of the fence began hurling rocks at the Border Patrol vehicle.

Carlos LaMadrid's mother, Guadalupe Guerrero, says that her son's actions didn't justify killing him. Photo by Nick Oza /The Republic

As LaMadrid climbed the ladder, Border Patrol Agent Lucas Tidwell fired his handgun through the Tahoe’swindshield, then opened the door and fired four more shots, hitting LaMadrid four times in the back and thigh. LaMadrid died that afternoon at a Sierra Vista hospital.

Two and a half years later, LaMadrid’s mother, Guadalupe Guerrero, says that her son’s actions didn’t justify killing him.

“If they’d arrested him, charged him, taken him to court, that wouldn’t have mattered,” Guerrero said. “But the Border Patrol took matters into their own hands…. The badge isn’t a license to kill.”

Immediately after the shooting, the Border Patrol whisked Tidwell back to the Douglas station. They declined to allow him to be interviewed by the Douglas police or the Cochise County Sheriff’s Office, noted a sheriff’s report. Under the Border Patrol’s union contract, agents must be allowed to meet with union representatives and attorneys before deciding whether to speak with investigators.

That afternoon, FBI Agents Jeremy Nielsen and Kyle Fisher met with the Border Patrol, the county sheriff and Douglas police, the sheriff’s report noted. The agents said the bureau would look into whether any crimes were committed against Tidwell. The bureau left it to the sheriff’s office to investigate whether the shooting of LaMadrid was justified. Douglas Price, the agent in charge of the FBI Phoenix Division, said that in joint investigations the local sheriff’s office typically handles homicides.

But the Cochise detectives had to do so without any access to Tidwell. Based on their findings – which included a video from a border camera that showed someone on the fence making a throwing motion – Cochise County Attorney Ed Rheinheimer decided not to prosecute. The DOJ held the case open for more than two years before announcing last August that it wouldn’t pursue charges against Tidwell. The FBI said cases are often open two years or more; Justice officials wouldn’t comment on why this case was open so long.

Tidwell “followed appropriate protocols; he defended himself; he wasn’t disciplined or anything for it,” by the Border Patrol, said Tidwell’s attorney, Sean Chapman. In a press release, the Justice Department said “LaMadrid was in the line of fire,” and that “there is insufficient evidence … to disprove that the agent was acting in self-defense when he fired at the rock thrower and mistakenly struck the victim.”

Border Patrol agents or CBP officers are rarely charged with using excessive use of force or violating someone’s civil rights by killing them. In part, that’s because agents, like other law-enforcement officers, tend to be given the benefit of the doubt by federal investigators.

The Department of Justice has not been able to show any cases in which it recommended civil or criminal charges against a CBP agent or officer who killed in the line of duty in at least the past six years. An extensive review by The Republic also found no instances.

The public, too, tends to give agents the benefit of the doubt.

In 2005, two Border Patrol agents in Texas, Ignacio Ramos and Jose Compean, shot, but didn’t kill, an unarmed drug smuggler who was fleeing. They tried to cover up the incident by falsifying reports, destroying evidence and lying to investigators.

They were convicted in 2006 on various charges and sentenced to more than a decade each in federal prison, but a swell of public pressure led President George W. Bush to commute their sentences on his last day in office.

In 2007, Rheinheimer, the Cochise County attorney, charged Border Patrol Agent Nicholas Corbett with second-degree murder after Corbett shot to death Francisco Dominguez Rivera, 22, an undocumented migrant. Corbett maintained that Dominguez Rivera had thrown rocks at him; after two trials ended in hung juries, Rheinheimer opted not to to try Corbett a third time.

In some cases, the investigations have been perfunctory.

On Jan. 4, 2010, Border Patrol Agent Miguel Torres Vasquez shot to death Jorge Alfredo Solis Palma, an undocumented migrant, on a trail east of Douglas. Solis Palma, 28, had thrown rocks at Agent Neil Hamby and his dog, and other agents. Torres Vasquez chased him for 600 yards, then shot him, a Cochise County Sheriff’s report states.

By the next afternoon, the Border Patrol’s critical incident team decided the shooting was justified, citing two agents saying that Solis Palma was in the motion of throwing a rock. That same day, the FBI’s Fisher and Nielsen (also the agents in the LaMadrid case), cited the incident team’s report and recommended no further FBI investigation. Price said such determinations can be made quickly by investigators on the scene.

The FBI held the case open for more than two years; but documents obtained by The Republic show no updates to the FBI’s Solis Palma file from the day after the shooting through Aug. 13, 2013, when the heavily redacted file was disclosed.

But was the case so open-and-shut? Cochise County detectives interviewed the Border Patrol witnesses. Agent Leon Shaw, said he saw Solis raise his hand, the nearest witness, Agent Adrian Suazo, said that Solis Palma had his hands and arms cradled in front of him, as though he were holding rocks. But he wasn’t making a throwing motion, nor had he raised his hands, when Torres Vasquez shot him.

Nevertheless, Cochise County, too, closed its investigation without charges.

In use-of-force investigations, CBP and the Border Patrol decline to identify the agents involved, often fighting in court to block the release of names even of agents being sued by the families of those killed. (Those named here were identified in court files or in documents obtained from state investigations.) The FBI also redacts agents’ names from any documents it releases. It can be very difficult for the families to find out what happened or why.

Officials at CBP and at the agents’ union said agents have been disciplined for using excessive force. But they won’t say who, how many or when. “Agents are subjected to incredible scrutiny,” union attorney Jim Calle said. “But the process is exceedingly opaque.”

This lack of transparency is not the norm at many law-enforcement agencies.

The same month as the shooting of Elena Rodriguez, Texas State Trooper Miguel Avila killed two undocumented migrants hidden under a tarp in the bed of a fleeing pickup; Avila hit them while trying, from a helicopter, to shoot out the truck’s tires as it sped toward a school zone near the town of La Joya.

Within a week, the Texas Department of Public Safety released Avila’s identity and numerous details, including maps showing the truck’s route and where it was fired on. The department also said Avila was being reassigned to administrative duties pending the outcome of the investigation.

Texas DPS announced an internal review of its policies on firing from aircraft. In February, the department changed its policy, barring shooting from the sky unless the aircraft had been fired upon or agents believed a deadly weapon – apart from the vehicle – was about to be used.

DPS’s findings were presented to a Hidalgo County grand jury; it declined to indict Avila, saying he had been following DPS policy.


Ciudad Juarez, which borders El Paso, for several recent years was among the deadliest cities in the world, as drug cartels battled for control of a key smuggling route.

But Maria Guadalupe Guereca never worried about letting her son Sergio, 15, accompany his older brother Omar to the Paso del Norte border crossing. It seemed a safe place for Sergio to play or hang out with friends while his brother worked in maintenance on the bridge connecting the border towns.

Then, on June 7, 2010, Sergio was shot to death by Border Patrol Agent Jesus Mesa Jr. Sergio and other youths had been running back and forth across the dry bed of the Rio Grande to the metal fence on the U.S. side. The FBI and CBP, without naming Mesa, said an agent fired in self-defense after he was surrounded by rock throwers.

But several cellphone videos taken from the nearby bridge later surfaced. They appear to show a different story.

Mesa wasn’t surrounded. He had tried to intercept four youths running back to Mexico across the river bed, grabbing one as the others fled. In one video, some youths can clearly be seen making throwing motions. But Guereca isn’t among them. He’s visible, peeping out from behind a pillar beneath a train trestle. He sticks his head out; Mesa fires; and the boy falls to the ground, dead.

“Why kill him? What had he done?” asked Maria Guadalupe Guereca, looking down at the spot where her son died.

The Department of Justice said last year there was insufficient evidence to prosecute Mesa on criminal or civil charges.

Attorney Cristobal Galindo, who represents Guareca’s family, said he believes three separate videos show the agent wasn’t surrounded and that a Department of Justice inquiry indicated Sergio Guereca didn’t throw any rocks. The family’s suit was dismissed by a federal district court judge in Texas, who said the court lacked jurisdiction since the victim wasn’t a U.S. citizen and his death took place on foreign soil. The case is now on appeal.

The family’s attorneys argue that the district court’s decision would in effect create a zone along the border where neither Mexican nor U.S. law would apply to any agent who fired across the border.

“Such a dangerous, implausible decision – giving the Executive the unreviewable discretion to take wholly innocent, civilian life – would be literally unprecedented,” wrote family attorney Bob Hilliard. The American Civil Liberties Union and a coalition of groups have joined in that appeal.

Shootings near the border fence near urban areas are the likeliest to be taped on CBP cameras. Not so in remote areas.

Jesus Castro Romo was shot in the side by Border Patrol Agent Abel Canales on Nov. 16, 2010. Photo by Nick Oza /The Republic

Jesus Castro Romo was shot in the side by Border Patrol Agent Abel Canales on Nov. 16, 2010. Photo by Nick Oza /The Republic

Jesus Castro Romo was among 12 undocumented migrants caught in a remote part of Arizona on Nov. 16, 2010. Romo ran, but couldn’t evade Border Patrol Agent Abel Canales, who was on horseback. He shot Romo in the side.

Canales’ incident report lacks any explanation for why he opened fire. Canales told the FBI Romo threatened him with a rock. Romo, who now is disabled and lives in Nogales, Sonora, tells a different story.

“As we were walking back to the others, he kept hitting me with his lariat. He wouldn’t stop hitting me, so I ran again. And that’s when he shot me,” said Romo, sitting in a wheelchair. “He said, ‘Yeah, how’d it have been if you’d hit me in the head with a rock? I said, ‘Who grabbed a rock? I didn’t grab any rock.’ ”

Romo sued the U.S. government in January 2012. That case continues. Government attorneys deny any wrongdoing by the agent. Canales, meanwhile, was indicted by a federal grand jury in October 2011 — not for shooting Romo, but for corruption, accused of taking bribes to let vehicles carrying drugs or undocumented migrants pass the Interstate 19 checkpoint south of Tucson. In August 2012, he pleaded guilty to one count of bribery and was sentenced to eight months in prison.

To date, the fiercest criticism for the disconnect between agents’ versions of what happened came after the May 28, 2010, death of Anastasio Hernandez Rojas at the San Ysidro border crossing south of San Diego. Officers said he was aggressive, even after being shocked with a Taser; but cellphone videos showed him begging for help, facedown on the ground, as a dozen agents shocked and struck him.

Sixteen members of Congress demanded that Homeland Security’s Office of Inspector General investigate excessive force by CBP and the Border Patrol in this and other cases.

Hernandez’s widow, Maria Pugo, filed a wrongful-death suit. Her attorney, Eugene Iredale, demanded to see the videos from CBP’s cameras.

“San Ysidro is the busiest land crossing in the world; they have millions of crossings a year, and there are video cameras throughout the facility,” Iredale said. “But somehow, the video cameras weren’t turned on, or they were facing the other way. I could say something cynical, but I don’t need to. We have no video from any of the government cameras at the border.”

The FBI’s investigation remains open. The family’s lawsuit is moving toward trial.

Homeland Security’s Office of Inspector General released its redacted findings on CBP’s use of force in September.

The review concluded that many CBP officers and Border Patrol agents don’t understand when and how much force they’re allowed to use. Inspectors said they couldn’t figure out how many allegations of excessive force there have been, or how many CBP investigated, because CBP doesn’t directly track such allegations or its own investigations. Hundreds of records had so little information that inspectors couldn’t determine what happened.

The Republic’s review of incident reports found similar issues. The report for the Carlos LaMadrid shooting, for example, has no narrative at all. Nor is there any narrative in one of the most notorious incidents — the December 2010 death of Border Patrol Agent Brian Terry. He was shot to death in Arizona’s Peck Canyon by a suspected “rip” crew (bandits who prey on drug smugglers).

Two of the weapons found at the scene were later linked to the “Fast and Furious” gun-walking operation, in which the Phoenix office of the Bureau of Alcohol, Tobacco, Firearms and Explosives allowed guns to be sold to known criminals in an effort to trace the flow of weapons to Mexican drug cartels. The incident report is so incomplete that it would be impossible to tell, merely from the report itself, that an agent died.

As part of the OIG review, the DHS asked the Police Executive Research Forum, a non-profit police chiefs’ research association, to look at how the CBP reviews use-of-force incidents. At the agency’s insistence, all the forum’s recommendations were redacted before the report was released. CBP Southwest Border Chief Bill Brooks would only say: “It is CBP’s standard practice to provide a short period of administrative leave to personnel involved in serious use-of-force incidents.”

The report didn’t discuss specific incidents or whether they were properly investigated. It called on CBP to improve how it identifies and tracks information, and to begin using that information to train agents and figure out how its policies are working.

In November, Border Patrol Chief Fisher told the Associated Press that, any recommendations notwithstanding, agents will continue to use deadly force against rock-throwers.


Many prominent law-enforcement agencies, including the New York and Los Angeles police departments and the Maricopa County Sheriff’s Office make their use-of-force policies public.

By contrast, even though CBP officials insist that their use-of-force policies follow federal guidelines, the agency refuses to disclose any copies. Several years ago, in response to a lawsuit by the ACLU, CBP released a copy of its policies — with nearly every single word redacted. CBP officials wouldn’t discuss, on the record, their reasons for withholding the policy.

The Republic obtained a 2004 copy of CBP’s use-of-force policy handbook, along with limited information about revisions made in 2010.

The current policy allows agents to use deadly force when they believe there is imminent danger of death or serious injury to themselves or another person, Border Patrol Chief Fisher has said. The 2004 policy stated agents may shoot fleeing suspects only if there is probable cause to believe the person committed a felony causing serious injury or death and poses an imminent danger of death to another person. The policy doesn’t specifically address if rocks are considered deadly weapons.

In general, officers are supposed to use the minimum force necessary.

Officials at the Police Executive Research Forum said their CBP contract prevents them from discussing their redacted recommendations.

But the police forum has published two guides on use of force “best practices.” The Republic’s review found that CBP policies are often nearly the opposite of these recommendations, which are in italics.

Collect and analyze use of force data to identify trends and patterns; act on that data. CBP tracks use of force incidents; but reports often lack key information that would be necessary to identify trends and patterns. OIG noted CBP doesn’t track allegations of excessive force or assaults on agents that don’t result in use of force. CBP declined to discuss whether and how it analyzes the data but provided a statement that it is “working to improve the reporting system.”

Officers should articulate and document their reasons for a particular use of force in a given situation. One-fifth of the nearly 1,600 incident reports included no description whatsoever about the incident; hundreds more fail to say why they used force.

Demonstrate to the community that the agency is accountable to the public when force is used. Provide as much information as possible to the public as soon as possible. Inform the public about the outcome of investigations into use of force. CBP typically issues brief press releases after deadly incident, but families of those killed consistently said it was difficult or impossible to get more information. CBP doesn’t release outcomes of internal investigations.

When force is used inappropriately, acknowledge the mistake as soon as possible. CBP officials couldn’t provide, nor could The Republic find, an example in which CBP acknowledged excessive use of force.

Be as open and transparent as possible. As noted, CBP officials won’t even discuss transparency on the record.

“The Border Patrol is a very paramilitary, very top-down, authoritarian institution, internally,” said Josiah Heyman, a professor of anthropology at the University of Texas at El Paso who has conducted field research with the agency. “DHS cloaks itself with the mantle of national security and holds a lot of information back from the public. We’re not actually talking about issues or tactics, intelligence or surveillance … how do you justify holding back use-of-force guidelines and training materials from the public?”

The National Border Patrol Council, the agents’ union, has argued vehemently against any changes in use-of-force policies. Before CBP updated its policies in 2010, it took three years to negotiate the changes with the council and the National Treasury Employees Union, which represents CBP officers.

After CBP officials said recently they’ll test dashboard-mounted video cameras (and possibly lapel cameras) to reduce the use of force and protect agents against false accusations, the union condemned the idea. Union Vice President Shawn Moran said the use of lapel cameras “would result in more injured and murdered agents.”

The union also condemned any new limits on the use of deadly force, saying agents “work in a unique environment and encounter threats that are not often seen by police and sheriff’s departments.”

Statistically, it’s safer to be a Border Patrol agent than a police officer. Much safer. In 2012, local police and sheriff’s deputies in Arizona were more than five times likelier than Border Patrol agents on the Southwest border to be assaulted, and four times likelier to be assaulted with deadly weapons, based on CBP and FBI data.


There is limited pressure for change.

“Mexico wants to know what measures will be taken so these incidents don’t happen,” said Mexico’s Secretary of Foreign Affairs, Jose Antonio Meade Kuribreña. Mexico delivers a diplomatic complaint each time a Mexican citizen is killed by border agents. Mexico notes cross-border shootings violate an agreement between the countries.

But Mexico’s complaints have had no apparent impact. In the U.S., a coalition of border and human-rights groups took family members of some of those killed to Capitol Hill in late November to push lawmakers for reforms.

“Authorities need to understand that this is not a case of a bad apple or two, it’s a systemic problem,” said Andrea Guerrero, co-chair of the Southern Border Communities Coalition. “This agency has a problem with accountability and transparency, and they don’t see it.”

Historically, the Border Patrol and CBP have come under less public pressure over use-of-force than local police forces, said Geoffrey Alpert, a professor of criminology at the University of South Carolina, “because you don’t have the same kind of local constituency, the layer of citizen response, that local police forces have.”

But that’s changing, Alpert said. With the growing use of technology, it will be harder for questionable incidents to slip through, he said. “But the numbers I’ve seen, even more than it protects the suspect, it protects the officer from false complaints.”

On Nov. 25, three days after meeting with Guadalupe Guerrero and other family members, 20 members of Congress asked to meet with acting CBP Commissioner Thomas Winkowski to discuss how to make the agency more transparent and accountable. That meeting is pending.

Maria Guadalupe Guereca. Photo by Bob Ortega/The Republic

Maria Guadalupe Guereca. Photo by Bob Ortega/The Republic

In Ciudad Juarez, Maria Guadalupe Guereca has low expectations that U.S. courts will hold agents accountable in her son’s death.

“I don’t think we’ll see justice,” she said, “just because we’re Mexican.”

In Nogales, Araceli Rodriguez’s job takes her downtown, near the border fence, every morning. Each time she sees a Border Patrol car or an agent on the U.S. side, she says, she asks herself if that might be the one who killed her son.

“If my son had been the shooter, if he had been the one who killed them, would they have waited a year in demanding justice against him? Would he still be free?” Rodriguez asked, on the first anniversary of her son’s death. “Of course not. Of course not. The Mexican government would have extradited him immediately.

“They killed a child,” she said, her voice trembling. “And they’ve done nothing about it… I don’t want excuses. I want to know who killed my son. I want justice.”

That evening, several hundred protesters joined her and her family in a march to the border fence. They wore t-shirts calling for “Justicia!” They held white balloons and candles. Some waved hand-shaped signs, in Spanish, saying, “Not one more death.”

As they marched, shopkeepers and customers came out; some joined the marchers. Outside a barber shop, one man asked what the demonstration was about.

“The boy who was killed by La Migra,” said a marcher. The man nodded. “Oh, yes,” he said. “Everyone here knows about that.”

Later than night, when everyone had gone home, if you looked through the fence, only the ghostly image of Jose Antonio painted on a wall, half-hidden by the shadows of the fence’s bars, remained.

Republic photographer Nick Oza contributed reporting to this story.


Editor’s note: This story was previously published on

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