Under fire, Border Patrol says agents kill only ‘as last resort’

McClatchy Foreign StaffFebruary 28, 2014 

— Under fire for killing 21 people along the Southwest border since 2010, the Border Patrol says its agents use lethal force only “as a last resort,” even as the Cabinet secretary who oversees the agency has promised Congress that he’ll personally review recent cases “to ensure that we’re getting this right.”

A McClatchy report Thursday documented how a Border Patrol agent on Jan. 16 shot and killed a 31-year-old migrant who appeared to be on his knees or on the ground off a highway in southeastern Arizona.

The Border Patrol says the victim, Gabriel Sanchez Velazquez, lunged for the service firearm of one of its agents, meriting his shooting death. The agent’s identity has been kept secret.

After the news story was published, a spokesman for Customs and Border Protection, the umbrella agency that oversees the Border Patrol, issued a statement late Thursday, saying Border Patrol agents “may use deadly force only when the agent or officer has a reasonable belief that the subject of such force poses an imminent danger of death or serious physical injury” to the agent or anyone else.

“Excessive force is strictly prohibited and deadly force is only to be used as a last resort,” the statement quoted Customs and Border Protection spokesman Michael Friel as saying.

Department of Homeland Security Secretary Jeh. Johnson acknowledged at a hearing Wednesday on Capitol Hill that concern is growing about the Border Patrol’s practices on lethal force and secrecy surrounding its policies.

Johnson, who oversees the agency, responded to a question from Rep. Sheila Jackson Lee, a Texas Democrat, at a House Homeland Security Committee hearing.

“I’m very interested and concerned about use of force,” Johnson said. “I think that a law enforcement agency – foreign armed force (or) military – has to be credible in the communities in which it operates.”

Johnson said his understanding was that Customs and Border Protection would make public its policy on the use of lethal force “any day now.” The policy has been secret.

“I’m also interested in reviewing some of the more recent cases myself to ensure that we’re getting this right,” Johnson said.

Which cases Johnson plans to review and what the outcome may be wasn’t made explicit. Among the cases that have generated controversy:

– Anastasio Hernandez Rojas, 32, died May 28, 2010, a day after Border Patrol agents handcuffed him, then used a stun gun on him and hit him while he was on the ground at the San Ysidro border crossing. A video that emerged in 2012 showed at least 12 agents standing over Hernandez as he was hit with a baton, shocked with the stun gun and had his pants pulled off.

– Jose Antonio Elena, 16, was shot in the back and killed Oct. 10, 2012, on a sidewalk in Nogales, Mexico, by a Border Patrol agent who fired through the border fence from atop a 25-foot hill. Elena was struck by at least eight bullets, all but one hitting him in the back. The Border Patrol described Elena as a rock thrower.

– Last week, a Border Patrol agent asserted that he was hit with a basketball-sized rock in the face but he recovered in time to shoot and kill a migrant, Jesus Flores Cruz, 41, along a mountain trail near Otay Mesa, Calif. In a rare release of the name of an agent involved in a border death, the Border Patrol identified the officer Monday as Daniel Basinger, a two-and-a-half-year employee of the agency.

Sixteen months ago, Customs and Border Protection officials asked two government offices and a nonprofit police research council to review its use of lethal force.

The reviews generated more than 90 recommendations, and CBP officials say a number of them have been implemented.

Clinging to a tradition of secrecy, the agency has declined to make the three reviews public in their entirety.

Nonetheless, the 21-page review by the independent Police Executive Research Forum, a Washington council that advises law enforcement agencies, found its way this week into the hands of the Los Angeles Times, which reported Thursday that the review criticized Border Patrol agents for acts such as stepping in the paths of cars as a pretext to open fire on the drivers.

The report also said Border Patrol agents had fired across the border in frustration at rock throwers, The Times reported.

Email: tjohnson@mcclatchydc.com; Twitter: @timjohnson4

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