On the evening of Feb. 17, 2015, two Border Patrol agents were conducting vehicle patrols in separate, marked, Border Patrol vehicles in a rural area of San Diego County known for smuggling activity.
Agent A attempted to initiate a vehicle stop, after finding out that a sport utility vehicle (SUV) was registered to a suspected alien smuggler that he had encountered the evening before. The driver of the SUV initially attempted to flee, but was pulled over to the side of the road after a brief pursuit.
As the vehicle came to a stop, the passenger-side doors opened and occupants inside attempted to escape. Both agents exited their vehicles and ran towards the SUV; Agent A approached from the front and Agent B from the rear.
As he approached, Agent A could not clearly see what was happening because the headlights of the SUV were bright and blinding him. Agent A could not see Agent B or how many people had exited the vehicle. Agent B did not know the exact location of Agent A, other than he was on the other side of the SUV. It was also unknown to the agents at the time how many people had been in the vehicle initially, and how many remained in the vehicle following the bail-out.
As the agents neared the SUV, the driver accelerated the vehicle in the direction of Agent A. Both agents then discharged their CBP-issued handguns in the direction of the driver. The vehicle absconded and the agents pursued, Agent B with an alien he had encountered on the side of the road in his vehicle.
After a mechanical breakdown of the SUV, and with the assistance of additional CBP enforcement personnel, the subject was taken into custody. The driver sustained a wound to his right ring finger. An additional subject was discovered to be hiding in the back seat of the SUV and was taken into custody; the second subject was uninjured.
Result of the NUFRB
On March 22, 2017, the NUFRB held a vote to determine whether the discharge of a CBP-issued handgun by Agent A and the discharge of a CBP-issued handgun by Agent B were in compliance with CBP use of force policy in effect at the time of the incident.
The board found that the discharge of a CBP-issued handgun by Agent A was in compliance with CBP use of force policy in effect at the time of the incident.
The board found that the discharge of a CBP-issued handgun by Agent B was not in compliance with CBP use of force policy in effect at the time of the incident.
Regarding Agent B’s discharge of his agency-issued handgun, the NUFRB determined that the officer’s use of his weapon was not in compliance with CBP’s use of force policy.
NUFRB Recommendations
Consistent with the mandate to review and report on potential improvements to policy and training, the NUFRB, in addition to the out-of-policy findings, made recommendations following its consideration of this incident.
CBP Management Determination
When the NUFRB finds a current CBP employee’s actions to be inconsistent with CBP’s Use of Force Policy, the matter is referred to the CBP Office of Professional Responsibility (OPR). OPR conducts additional review and investigation as needed, and generates a final Report of Investigation (ROI). The ROI is subsequently transmitted to CBP management for consideration of potential corrective action.
In this instance, based on OPR’s investigative findings and CBP management’s careful review of all relevant material, to include any information or mitigating factors raised by the Officers during statutory due process reply proceedings, CBP management issued the following disciplinary actions:
Agent B was issued a Letter of Reprimand for failure to follow CBP policy and was required to undergo remedial training.
These actions constitute final CBP disciplinary determinations. The Agent may appeal CBP’s determination in accordance with applicable law and policy.