Border Patrol Throw Political Bone to Civil Libertarians; Will We Fetch?


Español For years, Border Patrol agents have effectively acted with impunity along the southern border of the United States, shooting anyone — including Mexican nationals on the other side of the border — when confronted with the threat of a rock.

Rally for Jose Antonio Elena Rodriguez, killed by unnamed CBP agent. Source: US Peace Council.

According to CBP’s own statistics, agents have opened fire on alleged rock-throwers at least 43 times since 2010, killing 10 people — some as young as 15 and 16 years old — and not once has an agent been publicly identified or faced any disciplinary action. As I’ve noted previously, in the cases of Jose Antonio Elena Rodriguez and Sergio Adrian Hernandez Guereca, the available evidence indicates that neither child posed a threat or even threw a rock — Rodriguez likely laying submissively face down on the ground when executed.

In a move loudly praised across the media, the Border Patrol responded earlier this month by publicly releasing an internal memo addressing the issue, along with a redacted copy of their 2010 Use of Force Policy Handbook. Various outlets reported a great change in CBP policy, supposedly now restricting, even “banning,” the shoot-to-kill practice in the field and instructing agents to “show restraint.”

The reports are based on a quote by Michael Fisher, chief of the Border Patrol, who wrote the internal memo and stated “deadly force may only be used if an agent has a reasonable belief, based on the totality of the circumstances, that the subject of such force poses an imminent danger of death or serious physical injury to the agent or another person.”

Are these news outlets suggesting that, prior to Fisher’s memo, it was the policy of the US Border Patrol to shoot and kill people along the border who did not pose an “imminent danger?”

CBP 2010 Use of Force Policy Handbook. Source: Department of Homeland Security.

To add a little more window dressing, Department of Homeland Security Secretary Jeh Johnson released the redacted use of force handbook on the same day as Fisher released his memo. However, the reality is that an unredacted copy of the same 2010 handbook had already been published online in January following a Freedom of Information Act request by the Center for Investigative Reporting.

Further, the language used by Fisher in his memo is the exact same wording used in the official use of force policy that the agency has been operating under since at least 2010 and likely well before. In other words, Johnson’s redacted release and Fisher’s memo are nothing more than empty political gestures that do absolutely nothing to change the actual policy the Border Patrol has been acting on for years.

Lipstick on Pigs: Rest Assured Citizen, More Surveillance Will Keep You Safe

Jeh Johnson
Department of Homeland Security Secretary Jeh Johnson. Source: Wiki Commons.

In like fashion, Jeh Johnson is now reportedly “considering” a proposal to equip US Border Patrol agents in the field with video cameras, similar to the sort worn by local police officers in a few cities across the country.

The use of body cameras by local law enforcement has exploded in recent years, as the technology improves to make the equipment easier to use, cheaper, and less cumbersome to wear. They are so popular now, in fact, that some police departments are even canceling their dash cam systems contracts and instead focusing exclusively on the new lipstick tube sized cameras.

The ostensible purpose of body cams on cops is to provide a video account of all interactions with police to be entered into evidence (just like anything you say “can and will be used against you”), as well as to curb the behavior of both civilians and police officers alike and minimize use of force. With regard to “better policing,” the effectiveness of body cameras is based almost exclusively on a single study conducted by Police Chief Tony Ferrar and Dr. Barak Ariel in Rialto, California, and has been widely reported and commented on since its release last year.

The idea that “passive surveillance” can have a generally “socially beneficial” effect is nothing new. We’ve known this for the last 80 years. The Rialto study makes essentially the same claim as the Hawthorne experiment concluded in 1932, which gave name to the “Hawthorne effect” — people generally change their behavior when they know they’re being observed.

It’s the same argument for CCTV, red light cameras, and other “passive” forms of public surveillance. In fact, now that we all know that our electronic data is being siphoned by the NSA, it could be argued that this too qualifies as a new form of “passive surveillance.” We know it’s there, it’s not “in our way,” and its often dismissed with “I’ve got nothing to hide.”

It’s all the same in principle. The question then becomes: are we willing to accept an all encompassing, panopticon level of surveillance in the name of the greater good?

The Rialto Police Department pioneered the use of body cameras on officers. Source: Nick Stern.

When it comes to body cams on police, and now potentially the Border Patrol, some civil libertarians seem to think so. The ACLU, for example, has come out in favor of this technology. Jay Stanley, a senior policy analyst at the ACLU, was quoted in the New York Times as saying: “We don’t like the networks of police-run video cameras that are being set up in an increasing number of cities. We don’t think the government should be watching over the population en masse. [However] when it comes to the citizenry watching the government, we like that.”

While I sympathize with the argument that government in general, and police specifically, deserve a greater check on their authority, there are a number of things wrong with Stanley’s statement.

To start with, the footage gained from body cams is entirely police-run, securely networked within each local department, not unlike dash cam video or any other form of police surveillance. Make no mistake, this is still the police filming you, not the other way around.

Consider for a moment why so many police departments across the country have been quick to jump on the body camera bandwagon, while at the same time staunchly opposing the right of private citizens to record their encounters with police on their own personal smartphones or video cameras. Could it be that besides the monopoly of force that they enjoy, they also seek to monopolize the historical record of that force? Why is that?

Camera-enabled smartphones are so ubiquitous at this point, that virtually anyone who would like to record their encounter with police possesses the technical ability to do so. It is of far greater benefit to rigorously protect the individual right of private citizens to voluntarily and actively record public servants, than to passively entrust “the watching” to “the watchmen” themselves.

Second, and perhaps most important, the emergence of body cameras in law enforcement as the end-all solution to excessive use of force is yet another example of the many ways in which we often seek the “path of least resistance” as a society, and attempt to treat the symptom rather than the disease.

The fact is, police officers, and to an even greater degree Border Patrol agents, act with impunity, because they have been given impunity.

In case after case, even when video evidence exists that clearly establishes their culpability, police officers are very rarely convicted. Border Patrol agents not only never see the inside of a courtroom, the public never even learns their identities.

This is the inconvenient variable that the Rialto study did not consider, and one that civil libertarians would do well not to ignore. It is important to note that the Rialto study was conducted over the course of a single year, and just after the body cameras were first introduced. What we need to understand is that any potential Hawthorne effect observed in policing as a result of the initial installation of video recording technology will wear off over time, especially when the police officer being “observed” has no reasonable expectation that his own behavior will ever come into question.

Once the observer effect is accounted for and no longer a factor, then the entire program becomes based in the premise that law enforcement will engage in honest self-reporting of misconduct, and will be inclined to properly investigate internal wrongdoing. This is an incredible leap, considering the history of the “thin blue line” — or the very thick green one, as in the case of Border Patrol.

There is, however, a real solution to this problem — one that is far more effective, but will require a greater degree of responsibility and active participation on the part of the public: Demand justice. Cure the disease. Prosecute and convict offending agents of the state.

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