Use of Force

We determined CBP’s use of tear gas on these dates, in response to physical threats, appeared to be within CBP’s use of force policy.  However, U.S. Border Patrol obtained an acoustic device and used it in an “alert tone” mode on November 25, 2018, which did not conform to CBP’s Use of Force policy because Border Patrol did not get advance authorization to have a device with this capability.  CBP’s Use of Force policy would have permitted use of the alert tone in a manner reasonable and necessary for self-defense or the defense of another person in threatening, emergent situations.  However, the policy does not authorize the carrying of any weapon for duty use that is not authorized, included on the Authorized Equipment List, or specifically approved by the LESC director.  Using the acoustic device in alert mode may increase the risk of temporary or permanent hearing loss to those exposed to the sound and thereby increase the Government’s liability.  CBP’s own internal investigation of the November 25, 2018 incident regarding the acoustic device was incomplete and inaccurate and did not provide all the information CBP needed to determine whether the CBP officer and Border Patrol agents involved had complied with the use of force policy.  In addition, not all Border Patrol agents had the required training and certification to carry less-lethal devices.  This occurred because Border Patrol lacked internal controls to ensure agents had fulfilled these requirements.  Border Patrol agents using less-lethal devices for which they are not certified could result in unintended serious injury or death, increasing the Government’s liability.  We made four recommendations to CBP to ensure compliance with its Use of Force policy and improve its investigative process.  CBP concurred with all four recommendations.

We determined that, from fiscal years 2010 to 2017, the number of assaults against CBP law enforcement officers decreased from 1,089 to 856. During the same time period, assaults of ICE law enforcement officers remained the same at 48. However, the data does not show a clear trend over that time period and the number of assaults varied widely from year to year. Our analysis also shows that, for a number of reasons, the data is unreliable and does not accurately reflect whether assaults have increased or decreased.

We determined that DHS has not done enough to minimize the risk of improper use of force by law enforcement officers.  Specifically, the Department does not:  (1) have an office responsible for managing and overseeing component use of force activities; (2) ensure the collection and validation of component data needed to assess use of force activities, minimize risks, and take corrective actions; (3) ensure use of force policies have been updated to reflect current operations and lessons learned; or (4) establish consistent requirements for less-lethal recurrent training and ensure training was completed as required.  Additionally, each component varies on their use of force activities.  Without improvements in the management and oversight of use of force activities, the Department may increase its risk of improper use of force by law enforcement officers.  DHS concurred with our two recommendations, which, if implemented, will help the Department actively oversee and assist with component use of force activities, update policies, and improve training.