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U.S. Customs and Border Protection Use of Force Review Police Exec. Research Forum 2013

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U.S. CUSTOMS AND BORDER
PROTECTION
USE OF FORCE REVIEW:
CASES AND POLICIES
February 2013

Conducted by

The Police Executive Research Forum
1120 Connecticut Ave, NW, #930
Washington DC 20036

U.S. Customs and Border Protection – Use of Force Review
February 2013
Introduction
The Police Executive Research Forum (PERF) was commissioned by U.S. Customs and Border
Protection (CBP) to conduct a review of the Use of Force by CBP officers and agents. This
review included all CBP use of deadly force events from January 2010 through October 2012
and CBP use of force policies, equipment, tactics, and training. Sources of information were
government-furnished information, equipment and materials and CBP policy documents.
PERF reviewed Customs and Border Protection Use of Force Policies and 67 case files related to
Customs and Border Protection agents’ use of deadly force. Case files were sorted in general
categories to include: firearm response to subjects armed with firearms; firearm response to
rocks thrown on land; firearm response to rocks thrown on water; firearms use against vehicles;
and other firearm cases.
Policies included the “Use of Force Policy Handbook” and the following ten directives:

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4510-020C: U.S. Customs and Border Protection Body Armor Policy
4510-026b: Controlled Tire Deflation Device Directive
4510-029: Pepperball Launching System (PLS) Policy
4510-029a: Use of Electronic Control Devices
4510-031: FN303 Less Lethal Launcher System Policy
4510-032: Less Lethal Specialty Impact – Chemical Munitions Policy
4510-033: Use of Air Disabling Fire Policy
4510-034: CBP Use Of Force Steering Committee (UFSC)
4510-035: Foreign Attaché Firearms Directive
5290-012a: CBP Use Of Force Incident Review Program

The case reviews raise a number of concerns, especially with regard to shots fired at vehicles and
shots fired at subjects throwing rocks and other objects at agents. Improvements are also
recommended in initial reporting, investigation, incident review, weapons, personal protective
equipment, and training. Recommendations for changes in policies flow from these case
reviews.
Two policy and practice areas especially need significant change. First, officers/agents should
be prohibited from shooting at vehicles unless vehicle occupants are attempting to use deadly
force--other than the vehicle--against the agent. Training and tactics should focus on avoiding
positions that put agents in the path of a vehicle and getting out of the way of moving vehicles.
Second, officers/agents should be prohibited from using deadly force against subjects throwing
objects not capable of causing serious physical injury or death to them. Officers/agents should
be trained to specific situations and scenarios that involve subjects throwing such objects. The
training should emphasize pre-deployment strategies, the use of cover and concealment,
maintaining safe distances, equipping vehicles and boats with protective cages and/or screening,
de-escalation strategies, and where reasonable the use of less-lethal devices.

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U.S. Customs and Border Protection – Use of Force Review
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Because these changes are significant departures from current practice CBP will need to craft an
implementation strategy for re-orientation and training before new policies go into effect.
Consideration should be give to assembling an expert panel to interact with members of CBP
from all levels of the organization for discussion about the transition to the new policies and
practices.
There are several areas where CBP is engaged in best policing practices. Firearms qualification
occurs four times a year. According to policy, exemptions are limited. This practice is critical
given the environment in which CBP officers/agents work.
In addition, CBP is to be commended for implementing a new incident mapping software
program. This system allows examination of use of force and other incidents at both a highly
detailed level and at a more macro level. This system will provide graphic support for leaders to
spot trends and make strategic changes.
CBP also has produced a very useful quick-reference guide “Documenting the Use of Force.”
Policy changes restricting the use of deadly force against vehicles and rock throwers should be
incorporated into the guide.

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U.S. Customs and Border Protection – Use of Force Review
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Case Reviews and Observations
PERF reviewed Border Patrol Use of Force Policies and 67 case files related to Border Patrol
agents’ use of deadly force. Case files were sorted in general categories to include: firearm
response to armed suspect actions; firearm response to rocks thrown at agents on land; firearm
response to rocks thrown at agents on water; firearms use against vehicles; and “other.”
Case reviews were limited to assessments from the information supplied to PERF. Some case
files were incomplete and were missing information. Case summaries were reviewed to discover
overall trends and patterns. The scope of the study asked for general case reviews, but not
judgments on individual cases.
Overall Observations and Recommendations:


Initial Reporting:
It is believed that rock throwing incidents along the border are likely very
frequent; however, only serious cases where deadly force is used are routinely
officially reported. One of the causes for this laxity of reporting is believed to be
the complexity of report requirements in cases of “Assaults on Federal Officers.”
Recommendation: CBP policy and practice should be changed to require at least
an abbreviated report in all cases of attempted assaults against agents. Accurate
reporting of all incidents of attempted assaults by rocks or other means is
important in order to understand the gravity of the threat and put the threat in
perspective for the public and policy makers on both sides of the border.



Investigations:
Recommendation: All uses of deadly force should be thoroughly investigated
whether injuries occur or not. Lack of diligence was observed in some
investigations. It is recognized that the investigation of cases involving an
international border can be limited by jurisdictional cooperation, witness
availability, and access to the incident scenes. However, it is important that, to
the extent possible, a full investigation be conducted of each discharge of deadly
force by CBP officers/agents. Based on the somewhat limited records that were
provided, it appears that CBP is not as diligent with follow up investigation and
evaluations of cases where shots were fired and injuries were not confirmed. This
“no harm - no foul” practice can lead to tacit approval of bad practices.



Incident Reviews:
Recommendation: It is not clear that CBP consistently and thoroughly reviews all
use of deadly force incidents. Individual cases should be uniformly judged by a

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U.S. Customs and Border Protection – Use of Force Review
February 2013
single internal process that considers comments from a shooting review board
made up of internal subject matter experts who look at policy, agent safety,
training, and equipment issues pertaining to each case. The shooting review
process should be standardized as part of the Use of Force Incident Review
Program described in directive 5290-012A. Additionally, strategic analysis of
case trends should be performed on a regular basis. Such analysis may spot
trends that suggest actions that require policy or equipment changes, collaboration
within or outside of CBP, or problem solving. Information to support such actions
is becoming increasingly available. CBP is to be commended for implementing a
new incident mapping and analysis software program. This system will provide
decision/analytic support for leaders to spot trends and make strategic changes.


Weapons:
Border protection along the U.S./Mexico Border is a unique and hazardous
assignment. Frequent and dangerous rock attacks and other attacks on agents take
place when agents are patrolling or making arrests near the border. In many cases,
agents must effect drug seizures and arrests under threat of such attacks. For
example, when drug smugglers who are intercepted by agents are attempting to
flee and to take bales of drugs back across the border, agents are expected to do
what they can to apprehend the suspects and recover the drugs. However, rocks
being thrown and the threat of gunfire coming from south of the border create a
significant danger justifying defensive action. If agents are only armed with
deadly weapons, they are left with few options: retreat, or use their firearms.
Recommendation: While it is recognized that agents on foot can only carry so
many weapons, less lethal weapons should be made available to all agents
assigned to high risk areas. PERF’s review revealed that in most cases when
agents used deadly force, specialized less lethal weapons were not been readily
available. In some cases, the use of such less lethal weapons may have reduced
the risk to agents and prevented the need for deadly force.
Recommendation: Each field vehicle and boat should be equipped with the best
available less lethal weapons, and agents should be required to consider the use of
less lethal weapons. In that regard, it should be noted that, in an effort to acquire
the best less lethal equipment, CBP now maintains an arsenal that includes a
number of different less lethal weapon systems. Consolidation of weapons
systems would allow for more uniformity of training and operational capability.

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U.S. Customs and Border Protection – Use of Force Review
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

Personal Protective Equipment (PPE):
Recommendation: Agents assigned to marine patrol and agents assigned to patrol
or who respond near the International Border Fence (IBF) are particularly
vulnerable to rock attacks. All agents assigned to these high risk areas should be
provided protective equipment to include a helmet with face shield and with
integrated communications capability, especially for boat patrol. In addition, all
boats and patrol vehicles should be equipped with protective cages/screening.



Training:
Recommendation: Policy and skills training is essential to agent safety and
appropriate deadly force decisions. Training is especially important to the
successful implementation of policy changes. In training, agents should be
informed about the reason for changes in policy. For example, with regard to
restrictions on shooting at vehicles, it should be explained that shooting at
vehicles poses a higher risk to agents and innocent bystanders and should be
avoided. If the driver is disabled, the vehicle is likely to continue unguided,
creating a different hazard. Agents should receive regular retraining in deadly
force policy, use of force decision making, tactical skills and shooting. Command
level monitoring of training is particularly important when implementing policy
changes where resistance is anticipated.



Shooting at Vehicles:
Recommendation: Agents’ and the public’s safety will be enhanced by policy
changes related to shooting at vehicles. CBP should make policy changes that
restrict agents from shooting at vehicles. Likewise, agents should be trained to
get out of the way of oncoming vehicles as opposed to intentionally assuming a
position in the path of such vehicles. The policy should mirror the clear and
unambiguous policies that have been in place and which have proven effective in
a number of large U.S. jurisdictions for over 40 years. The CBP policy should
state “Agents shall not discharge their firearms at or from a moving vehicle
unless deadly physical force is being used against the police officer or another
person present, by means other than a moving vehicle.”



Shooting at Rock Throwers:
Recommendation: Review of shooting cases involving rock throwers revealed
that in some cases agents put themselves in harm’s way by remaining in close
proximity to the rock throwers when moving out of range was a reasonable
option. Too many cases do not appear to meet the test of objective
reasonableness with regard to the use of deadly force. In cases where clear

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options to the use of deadly force exist and are not utilized in rock-throwing
incidents, corrective actions should be taken. CBP should improve and refine
tactics and policy that focus on operational safety, prioritization of essential
activities near the border fence, and use of specialized less lethal weapons with
regard to rock throwing incidents. The state CBP policy should be:
“Officers/agents are prohibited from using deadly force against subjects
throwing objects not capable of causing serious physical injury or death to
them.”


Public Education / Relations:
Recommendation: Customs and Border Protection should mount an effort to
capture statistical facts regarding incidents and injuries and develop a public
education program to inform the residents of risks and potential consequences of
such actions related to rock throwing. It is important that the public, especially
residents on both sides of the border, and policy makers understand the risk faced
by CBP agents and rock throwers along the border. Transparency through timely
media releases about attacks and public dialogue regarding border security issues
will not end attacks. But when adversarial incidents occur, better public
understanding of the issues will provide the agency examples of proactive
preventive efforts and put issues in a broader context.

Case Summaries by General Category:
Firearm Use in Response to Armed Suspect Actions
Thirteen such cases were provided.
Observations:
Four of the cases involved CBP agents responding to requests for back-up assistance by
local or state law enforcement agencies. Two back-up related shootings were in the State
of Maine, one was in California and one was in Texas. Additionally, one CBP shooting
took place in Afghanistan. All five of these cases involved confrontations with armed
suspects who posed an immediate threat to agents and/or officers.
The eight other firearm to firearm cases involved armed confrontations on or near the
Mexican/U.S. Border. All eight of these cases appear to be objectively reasonable and
within policy.
Firearm Use in Response to Object Throwing on Water
Four cases involved rocks being thrown at agents who were in boats.
Observations:
It is not clear that all shootings by agents on water to counter rock throwers meet the
standard of objective reasonableness. The tactics and strategies that agents are using may
unnecessarily put them in harm’s way. Moving to a safer location when possible is

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February 2013
preferable to using deadly force and such action should be considered as part of objective
reasonableness.
Shooting at Vehicles
Fifteen cases were reviewed where shots were fired at or into vehicles by CBP agents.
Observations:
Based on a review of the submitted cases, it appears that CBP practice allows shooting at
the driver of any suspect vehicle that comes in the direction of agents. It is suspected that
in many vehicle shooting cases, the subject driver was attempting to flee from the agents
who intentionally put themselves into the exit path of the vehicle, thereby exposing
themselves to additional risk and creating justification for the use of deadly force. In most
of these cases, the agents have stated that they were shooting at the driver of a vehicle
that was coming at them and posing an imminent threat to their life. In some cases,
passengers were struck by agents’ gunfire. Little focus has been placed on defensive
tactics that could have been used by shooting agents such as getting out of the way. It
should be recognized that a ½ ounce (200 grain) bullet is unlikely to stop a 4,000 pound
moving vehicle, and if the driver of the approaching vehicle is disabled by a bullet, the
vehicle will become a totally unguided threat. Obviously, shooting at a moving vehicle
can pose a risk to bystanders including other agents.
The cases suggest that some of the shots at suspect vehicles are taken out of frustration
when agents who are on foot have no other way of detaining suspects who are fleeing in a
vehicle.
Most reviewed cases involved non-violent suspects who posed no threat other than a
moving vehicle.
There is little doubt that the safest course for an agent faced with an oncoming vehicle is
to get out of the way of the vehicle.
CBP policy should be “Agents shall not discharge their firearms at or from a
moving vehicle unless deadly physical force is being used against the police officer
or another person present, by means other than a moving vehicle.” Training and
policy changes should be implemented to implement this policy.
Shooting At Suspects Throwing Rocks at Agents on Land
Twenty five case files were reviewed that involved shots being fired by agents who had been the
victim of rock attacks while on land.
Observations:
Most of the cases involved enforcement activities that took place near the IBF, while a
limited number were in remote mountainous regions miles from the border. Some cases
seemed to be a clear cut self-defense reaction to close and serious rock threats or assaults,
while other shootings were of more questionable justification. The more questionable
cases generally involved shootings that took place through the IBF at subjects who were
throwing rocks at agents from Mexico. In some cases, agents shot at suspects who were

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U.S. Customs and Border Protection – Use of Force Review
February 2013
attempting to interfere with arrests on the U.S. side of the border fence. In at least one
case, rocks were being thrown in an attempt to allow drugs to be taken back over the IBF.
In other cases, agents shot at suspects who started throwing rocks over the fence at them
after agents stopped when their CBP vehicles had been hit by rocks. As with vehicle
shootings, some cases suggest that frustration is a factor motivating agents to shoot at
rock throwers. Likewise, it is felt that some of the weapons discharges are actually
intended as warning shots. Two or more shooting cases involving rock throwers on land
were ruled by CBP as violations of policy.
It is clear that agents are unnecessarily putting themselves in positions that expose
them to higher risk. While rock throwing can result in injuries or death, there must
be clear justification to warrant the use of deadly force. CBP needs to train agents
to de-escalate these encounters by taking cover, moving out of range and/or using
less lethal weapons. Agents should not place themselves into positions where they
have no alternative to using deadly force.

 
Other Shooting Cases
Ten cases that were provided were of a more traditional police shooting nature. They were
classified as “other”. These shootings were justified by facts ranging from struggles during arrest
attempts to an attack by a subject armed with a hammer. Each case was reviewed based on the
information that was presented.

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Use of Force Policy Review
PERF conducted reviews of the Use of Force Policy Handbook, Office of Training and
Development, October 2010 HB 4500-01B, U.S. Customs and Border Protection and

The foreword from the Commissioner represents an opportunity to clearly state the limits on the
use of force by Customs and Border Protection officers and agents.
Recommendation: Consideration should be given to adding at the beginning of the foreword a
statement similar to the following:
A respect for human life shall guide all members of U.S. Customs and Border
Protection in the use of force. CBP officers/agents shall use only the force that is
objectively reasonable to effectively bring an incident under control, while
protecting the life of the officer/agent or others. Excessive force is strictly
prohibited.
A Customs and Border Protection officer’s/agent’s responsibility is the protection
of the public. Standards for the use of force are the same on-duty and off-duty.
Officers/agents shall not use force that may injure bystanders or hostages, except
to preserve life or prevent serious bodily injury. Deadly force is never justified
solely to protect property. The use of force must be objectively reasonable. The
use of force is not left to the unregulated discretion of the involved officer/agent.
Use of force decisions are not driven by the officer/agent, but rather those
decisions are dictated by the passive, aggressive, or deadly actions of the
resistant or combative subject. Justification for the use of force is limited to the
facts actually known or reasonably perceived by the officer/agent at the moment
that force is used. Deadly force shall not be used to effect an arrest or prevent the
escape of a person unless that individual presents an imminent threat of death or
serious physical injury to officers/agents or others.
To reiterate, as stated in the Department of Homeland Security Policy on the Use
of Deadly Force: “Law enforcement officers and agents of the Department of
Homeland Security may use deadly force only when the officer has a reasonable
belief that the subject of such force poses an imminent danger of death or serious
physical injury to the officer or to another person.”

On page 12, C. the Use of Force Policy Division Incident Review Committee is described.
Subsection 3 states:
“The UFPD Incident Review Committee shall meet at the discretion of the Director of UFPD,
when sufficient use of force data is assembled to warrant the convening of the Committee.”

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Recommendation: Consideration should be given to having the Incident Review Committee
meet on a regular basis, perhaps quarterly, to review current data.

Chapter 4: Use of Force
Section A. General Guidelines describe the circumstances under which force may be used.
These standards are those articulated in Graham v. Connor, 490 U.S. 386 (1989) decided by the
United States Supreme Court.
Recommendation: Consideration should be giving to adding specific reference to Graham v.
Connor. This will demonstrate that CBP’s use of force principles are derived from the highest
competent authority, not from internal sources.

Chapter 4: Use of Force, Section C., Subsection 7
Recommendation: Replace the current language with the following.
Officers/agents shall not discharge their firearms at or from a moving vehicle unless deadly
physical force is being used against the officer/agent or another person present, by means other
than a moving vehicle. (Use of firearms against vessels or aircraft is subject to the restrictions
found in 4510-033: Use of Air Disabling Fire Policy.)
A moving vehicle in and of itself is not a presumed threat that justifies the use of deadly force.
Firing at or from a moving vehicle is rarely effective and presents extreme danger to agents and
innocent persons.

Chapter 4: Use of Force, Section D. Use of Intermediate Force
Recommendation: CBP should consider replacing “Intermediate Force” and “non-deadly” force
throughout with “less lethal” which more accurately describe other than deadly force.
Consideration should be given to revising Subsection 1 to read: “Less lethal force is defined as
that force that in neither likely nor intended to cause death or serious physical injury, although
death or serious injury might still be a result.”

Chapter 4: Use of Force
Recommendation: Consider adding between Section E. “Emergency Situations” and Section F.
“Employee Assistance Program (EAP)” a new section titled “Use of Safe Tactics”

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Use of Safe Tactics
1. Vehicle stops (high risk, low risk, or unknown risk) present tactical dilemmas for
officers/agents. Officers/agents shall not unreasonably place themselves in a position
where a threat of imminent danger of death or serious physical injury is created when
attempting to stop a motor vehicle or apprehending a felony suspect. When conducting a
high risk stop or a stop for suspicious circumstances presenting an unknown risk, the
officer/agent shall employ tactics that promote safety for the officer/agent and the public.
This should include utilizing a back-up agent whenever possible.
2. Officers/agents should avoid standing directly in front of, behind, or beside a suspect
vehicle and should not intentionally use their body to block the suspect vehicle. The
likelihood of injury to the officer/agent substantially increases when using these
dangerous and rarely effective tactics. Officers/agents should strive to move out of the
way rather than into the path of vehicles.
3. Officers/agents will follow all training protocols/guidelines which are taught in entry
level training relative to high risk stops involving vehicles and armed suspects.
4. CBP recognizes that the mobility of vehicles present heightened risks for officers/agents
and discourages officers from reaching into vehicles. This tactic is extremely dangerous
and rarely effective.
5. Thrown or hurled missiles aimed at officers/agents may represent a threat of imminent
danger of death or serious physical injury. When sufficient time exists officers/agents
should seek cover and/or move out of range. Such action may be especially viable when
the attack is coming from the other side of the border. Officers/agents are prohibited
from using deadly force against subjects throwing objects not capable of causing serious
physical injury or death to them.

Chapter 4: Use of Force, Section F. Employee Assistance Program (EAP), Section 3 states:
3. When an Authorized Officer/Agent uses deadly force, either on or off-duty, which results in
death or serious physical injury to a person, the officer/agent shall (after providing incident
information in accordance with the requirements of Chapter 5.A.2.d.(1-8)) be placed on
Administrative Leave with pay and/or regularly scheduled days off for three (3) consecutive
calendar days. During this period, the officer/agent may voluntarily participate in a confidential
consultation conducted by an EAP counselor. The RO, on a case-by-case basis, shall grant
requests for additional administrative leave for the confidential consultation or other related
purposes.{Italics added}
Recommendation: Consideration should be given to removing the following: “which results in
death or serious physical injury to a person.” All policies related to the use of deadly force
should be neutral with regard to the outcome. The issue is one of intent. The behavior of the
officer/agent should be dealt with regardless of the impact of the use of deadly force on a
suspect.

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Recommendation: Consultation with an EAP counselor should be mandatory. This will remove
any stigma some may feel is associated with counseling sessions.

Chapter 5: Use of Force Reporting Requirements, Section A. 2. c. states:
c. Any Authorized Officer/Agent who participates in or observes a reportable use of deadly
force incident shall orally report the incident to a supervisor in accordance with the requirements
of this chapter. {Italics added.}
Recommendation: The term “reportable use of deadly force” implies that there are nonreportable uses of deadly force. Consideration should be given to eliminating “reportable”
wherever it is used in a like manner.

Chapter 5: Use of Force Reporting Requirements, Section A. 5. a. states:
a. In any use of force incident where there is a death or serious injury as a result of actions taken
by a CBP Officer, Agent or employee, the RO shall ensure that the incident has been reported to
the law enforcement authorities having jurisdiction over the investigation.
Recommendation: Consideration should be given to expanding the notification requirement to
include not only incidents where there is a death or serious injury but also whenever there is a
use of deadly force. This will cover both less lethal incidents – when death or serious injury
results -- and use of deadly force incidents. The current notification requirement does not cover,
for example, an episode during which multiple shots are fired but no one is hit.

Chapter 5: Use of Force Reporting Requirements, Section B: Investigation of Reportable Use of
Deadly Force and Section C: Incident Investigation
Best practice in U.S. policing is that all use of deadly force incidents undergo a dual
investigation. One investigation is to determine whether any criminal charges are warranted.
The second investigation is to determine whether the agency’s rules, regulations, policies or
procedures were breached. The second investigation, an administrative, internal investigation,
must be consistent with Garrity v. New Jersey, 385 U.S. 493 (1966). The Garrity rule requires
that information received in an administrative investigation cannot be used in the criminal
investigation. (However, information from the criminal investigation can be used in the
administrative investigation.)
Section B appears to provide guidelines for criminal investigations of incidents involving the use
of deadly force by CBP officers/agents while Section C appears to provide guidance for the
administrative investigation.

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Recommendation: Consideration should be given to changing the title of Chapter 5 from “Use
of Force Reporting Requirements” to “Use of Force Reporting and Investigation Requirements”
to more accurately reflect the content of the chapter.
Recommendation: The chapter should specifically describe that dual investigations will occur
and appropriately label the sections that pertain to criminal investigations and administrative
investigations.
Recommendation: Customs and Border Protection has no criminal investigative arm. Hence it
is dependent on local law enforcement agencies when they have primary jurisdiction, or elements
of DOJ or DHS/CBP if DOJ or DHS/CBP has primary jurisdiction, to conduct criminal
investigations. To ensure that criminal investigations of the use of deadly force by CBP
officers/agents are conducted consistently on a timely basis, CBP should strive to identify a
single federal source for all criminal investigations of deadly force incidents. This
recommendation is not intended to preclude criminal investigations by local authorities, a dual
investigation could occur.
There should be clear guidelines to foster close coordination among investigating agencies so
there is no confusion which agency has primary investigative jurisdiction. Protocols should b
established in advance of incidents.

Chapter 5: Use of Force Reporting Requirements
Recommendation: In Section A, 4, c reference is made to a Critical Incident Team (CIT) that
may initiate a parallel investigation into an incident. There is no other definition or description
of a CIT. Such information should be added to the Handbook.

Chapter 5: Use of Force Reporting Requirements, Section D: CBP Personnel Involved in a Use
of Deadly Force Incident, Subsection 2 states:
2. CBP’s Drug-Free Federal Workplace Program – Post-incident drug testing shall be required
when there is a reasonable suspicion that the actions of the officer/agent were the result of illegal
drug use. The decision to require post-incident testing must be based on articulable facts,
evidence and circumstances and be undertaken in accordance with the standards and procedures
documented in Chapter 5, Part C of the U.S. Customs Service Drug-Free Federal Workplace
Program (CIS HB 51200-01A), dated April 2002.
Recommendation: Consideration should be given to revising the subsection to require postincident drug and alcohol testing after every Use of Deadly Force Incident. The CBP should
hold its officers/agents strictly accountable to be unimpaired in their work. This is especially
important with regard to the use of deadly force.

Chapter 5: Use of Force Reporting Requirements, E. Discharge of a Firearm

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Recommendation: The directive seems to equate “Discharge of a Firearm” with “Use of Deadly
Force.” While every Use of Deadly Force Incident should be reportable, some firearms
discharges can be excepted as described elsewhere in Chapter 5.E.

Chapter 5: Use of Force Reporting Requirements, E. Discharge of a Firearm, Subsection a.(2)
(2) While off duty, and causes any injury to any person, or any damage to either private, public,
or government property in violation of any law or ordinance, or causes an investigation by any
law enforcement agency;
Recommendation: The subsection should be altered so that all off duty firearms discharges,
except those that occur during sanctioned off duty practice, are reportable regardless of location
or outcome.

Chapter 5: Use of Force Reporting Requirements, Subsection 2
2. After any discharge resulting in personal injury or property damage where a firearm
malfunction is suspected, the RO must immediately send the firearm and ammunition to the
appropriate UFPD facility for examination, unless the firearm is required for an ongoing federal,
state or local law enforcement investigation or legal action.
Recommendation: Consider altering the section so that any discharge where a firearm
malfunction is suspected results in sending the firearm and ammunition to the appropriate UFPD
facility for examination. Every weapon always should be maintained in good working order.
Each suspected malfunction should be examined, not only those where the discharge results in
personal injury or property damage.

Chapter 6: Use of Force Proficiency and Training
The requirement that officers/agents demonstrate their firearms proficiency quarterly represents
a law enforcement best practice.
Recommendation: At least one of the quarterly firearms proficiency sessions should include
judgment shooting. This may include computer based scenarios, simunitions or similar training
to place officers/agents in situations where they need to decide whether to shoot as well as to
demonstrate accuracy. Some of these sessions should include scenarios where use of less lethal
weapons might be an option; when taking covering or moving out of range is the best option; and
when de-escalation tactics can prove to be successful.

Chapter 6: Use of Force Proficiency and Training, D. Firearms Instructors, Subsection 5 states
that:

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5. FIs are required to be re-certified at least once every five (5) years through a re-certification
program approved by the Director of UFPD. On a case-by-case basis, an extension of one (1)
year may be approved by the Director of UFPD.
Recommendation: Consideration should be given to requiring all firearms instructors to
complete an annual training update. Such updates could be delivered electronically and could
cover changes in firearms technology, ammunition and tactics.

Chapter 6: Use of Force Proficiency and Training, Section F. Intermediate Use of Force
Proficiency and Training
Recommendation: Beginning here and throughout this chapter ,consideration should be given to
changing “intermediate force” to “less lethal force” and “intermediate force devices” to “less
lethal weapons.” By making these changes, CBP will acknowledge the gravity that characterizes
the entire spectrum of use of force techniques and equipment by law enforcement agencies.

Chapter 6: Use of Force Proficiency and Training, J. Intermediate Force Instructors (IFIs) &
Intermediate Force Instructor Trainers
IFIs are required to be re-certified at least once every five (5) years.
Recommendation: Consideration should be given to establishing the re-certification requirement
for less lethal instructors to every three years. The technology and tactics pertinent to less lethal
weapons is continuing to evolve and at a faster rate than with firearms. Decreasing the time until
recertification for less lethal instructors will help keep them up-to-date with new less lethal
weapons and use guidelines. As with firearms instructors, consideration should be given to
implementing an annual refresher process.

Chapter 7: Intermediate Force Devices
Recommendation: Consideration should be giving to changing the language from Intermediate
Force Devices to Less Lethal Weapons.
Recommendation: There is no reference in the chapter to Electronic Control Weapons.
Revisions to this chapter should be made to include references and discussion about Electronic
Control Weapons.

Appendix IV CBP – Authorized Firearms and Intermediate Force Devices
Recommendation: Consideration should be giving to changing the langrage from Intermediate
Force Devices to Less Lethal Weapons.

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U.S. Customs and Border Protection – Use of Force Review
February 2013
Recommendation: Consideration should be given to revisions in this Appendix to include
references to Electronic Control Weapons.
Recommendation: CBP authorizes a variety of launchers designed to stun, deliver a chemical
irritant and/or kinetic impact projectile without causing serious physical injury of death..
Consideration should be given to reducing the number to one after research and review. This
will allow greater standardization of training and reduce confusion about which weapon to use.

Appendix V. CBP Use of Force Continuum
Recommendation: Reference to the requirements of Graham v Connor should be added as part
of introduction.
Recommendation: Information about Electronic Control Weapons should be added.

Appendix VI CBP Form 318
Recommendation: The form should be revised to include references to Electronic Control
Weapons as appropriate.

4510-020C: U.S. CUSTOMS AND BORDER PROTECTION BODY ARMOR POLICY
Section 7 BODY ARMOR WEAR
Subsection 7.1 states in part: “The wearing of body armor during normal operations is at the
discretion of the employee.”
Recommendation: Consideration should be given to mandatory wearing of body armor. In a
recent PERF survey of U.S. police officers (2011), respondents identified a variety of situations
in which body armor prevented or mitigated injuries including gun shots, car accidents, knife or
edged weapon assaults and punches, kicks or other strikes.
Recommendation: Consideration should be given to the development of protective head gear for
all CBP officers/agents. Such protection has the potential to reduce the danger of head injuries
from thrown projectiles. CBP should consider developing specifications that would result in
head gear that offers protection, has communication capabilities, and is suitable for the variety of
conditions and climates in which CBP officer/agents work.

4510-026B: CONTROLLED TIRE DEFLATION DEVICE DIRECTIVE
No recommendations.

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4510-029 PEPPERBALL LAUCHING SYSTEM (PLS) POLICY
Section 5.6 Intermediate Force
Recommendation: Consideration should be given to changing the language from Intermediate
Force to Less Lethal Force both here and throughout the policy.
Section 6.1 PLS – TRAINING GUIDELINES, Subsection 6.1.5 states:
“Participation in the training and certification for the PLS shall be voluntary.”
Recommendation: If there is a desire to expand the use of less lethal weapons, consideration
should be given to making PLS training and certification mandatory for all officers/agents.

4510-029A: USE OF ELECTONIC CONTROL DEVICES
Recommendation: Consideration should be given to using the more contemporary language of
Electronic Control Weapons (ECWs). This enhances the recognition of the danger in using these
tools.
Recommendation: Consideration should be given to replacing “intermediate force” with “less
lethal force.”
Section 6.1 POLICY – TRAINING GUIDELINES, Subsection 6.1.3 states:
“Participation in the training and certification of ECD end users/operators shall be voluntary.”
Recommendation: If there is a desire to expand the use of less lethal weapons consideration
should be given to making ECW training and certification mandatory for all officers/agents.
Section 6.2 POLICY – OPERATIONAL GUIDELINES
Recommendation: Consideration should be given to replacing Subsection 6.2.4 which now
reads:
“Subject to the exceptions described in 6.2.5 below, an ECD may be utilized as a compliance
tool on a subject offering, at a minimum, active resistance.”
The following replacement language is adapted from the guidelines for “Using the ECW” found
in “2011 Electronic Control Weapon Guidelines” published by the Police Executive Research
Forum and the U.S. Department of Justice, Community Oriented Policing Services, page 20,
number 25. This replacement guideline should be as follows:
“ECWs should be used only against subjects who are exhibiting active resistance in a manner
that, in the agent’s judgment, is likely to result in injuries to themselves or others. ECWs should
not be used against a passive subject.”

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U.S. Customs and Border Protection – Use of Force Review
February 2013
This will clarify the restrictions on ECW use.
Recommendation: Consideration should be given to replacing Subsection 6.2.6.
Subsection 6.2.6 now reads: “A subject should not receive more that three (3) ECD cycles.
Each ECD cycle must be reasonable and necessary to overcome non-compliance by an actively
resistant subject and to accomplish the officer/agent’s legitimate law enforcement duties. If the
use of the ECD is unsuccessful, the officer/agent should transition to another reasonable force
option.”
The following replacement language is adapted from the guidelines for “Using the ECW” found
in “2011 Electronic Control Weapon Guidelines” published by the Police Executive Research
Forum and the U.S. Department of Justice, Community Oriented Policing Services, page 20,
number 21. The current language should be replaced by the following guideline:
“Personnel should use an ECW for one standard cycle (five seconds) and then evaluate the
situation to determine if subsequent cycles are necessary. Each ECW cycle must be reasonable
and necessary to overcome non-compliance by an actively resistant subject and to accomplish
the officer/agent’s legitimate law enforcement duties. Personnel should consider that exposure
to the ECW for longer than 15 seconds (whether due to multiple applications or continuous
cycling) may increase the risk of death or serious injury. Any subsequent applications should be
independently justifiable, and the risks should be weighed against other force options.”
This change will bring the CBP guideline to the level of best practice and provide additional
cautionary information.
Recommendation: the following subsection should be added. It is absent from the directive.
“Personnel should not intentionally activate more than one ECW at a time against a subject.”
Recommendation: To comply with best practice as specified in “Using the ECW” found in
“2011 Electronic Control Weapon Guidelines” published by the Police Executive Research
Forum and the U.S. Department of Justice, Community Oriented Policing Services, page 20,
number 26 the following subsection should be added:
“Fleeing should not be the sole justification for using an ECW against a subject. Agents should
consider the severity of the offense, the subject’s threat level to others, and the risk of serious
injury to the subject before deciding to use an ECW on a fleeing subject.”

4510-031: FN303 LESS LETHAL LAUNCHER SYSTEM POLICY
Section 6.1 POLICY – TRAINING GUIDELINES, Subsection 6.1.3 states:
“Participation in the training and certification for the FN303 shall be voluntary”

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U.S. Customs and Border Protection – Use of Force Review
February 2013
Recommendation: If there is a desire to expand the use of less lethal weapons, consideration
should be given to making FN303 training and certification mandatory for all officers/agents.
Recommendation: Replace “intermediate force” throughout with “less lethal force.”

4510-032: LESS LETHAL SPECIALTY IMPACT – CHEMICAL MUNTIONS POLICY
Section 6.1 POLICY – TRAINING GUIDELINES, Subsection 6.1.3 states:
“Participation in the training and certification for the LLSI-CM systems shall be voluntary.”
Recommendation: If there is a desire to expand the use of less lethal weapons, consideration
should be given to making LLSI-CM systems training and certification mandatory for all
officers/agents.

4510-033: USE OF AIR DISABLING FIRE POLICY
Section 8.2 Air Disabling Fire (ADFR) REPORTING PROCEDURES, Subsection 8.6 states
that:
Any use of an ADFR that results in serious physical injury or death shall follow CBP policy and
procedures for reporting and responding to the use of deadly force.
Recommendation: Consideration should be given to requiring all ADFR utilization to follow
Use of Deadly Force reporting and investigation guidelines. Regardless of the outcome, all
ADFR use should be subject to systematic inquiry to assess whether current training and tactics
are followed.

4510-034: CBP USE OF FORCE STEERING COMMITTEE (UFSC)
No recommendations.

4510-035: FOREIGN ATTACHÉ FIREARMS DIRECTIVE
No recommendations for change.

5290-012A: CBP USE OF FORCE INCIDENT REVIEW PROGRAM
1. PURPOSE The statement describing the purpose of the program is stated as follows:
“The U.S. Customs and Border Protection (CBP) CBP Use of Force Incident Review Program is
designed to promote the safety of CBP law enforcement personnel and enhance existing training,
tactics, equipment and policy.”

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February 2013
Recommendation: Consideration should be given to expanding the purpose of the review
program to include “preserving the life and reducing injuries of all those whose actions
necessitate the use of force directed at them by CBP law enforcement personnel.”
Use of force reviews should serve a dual purpose, enhancing the safety of law enforcement
officers and the safety of those they come into contact with.

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