Jose Antonio Elena Rodriguez


When Border Patrol agents shoot at rock throwers, some argue it’s an unnecessary, disproportionate response: Deadly force against a mild threat.

The chief of the U.S. Border Patrol, Mike Fisher, ensured this week those controversies will go on when he revealed that Customs and Border Protection will not prohibit agents from shooting at rock throwers when they feel they or another person is threatened with death or serious injury. Neither will CBP restrict agents from shooting at people using a car as a potentially deadly weapon.

Both of these were policy changes the Police Executive Research Forum recommended CBP make after reviewing its use-of-force policies.

As critical as I’ve been of Border Patrol agents’ use of force in some cases, I think Fisher made the right decision. It comes down to the fact that rocks and cars can be deadly weapons in a given situation, and it would be dangerous to take away an agent’s ability to evaluate risk in the moment.

In CBP policies, “The nature of the weapon used should not be carved out,” retired Tucson Sector Chief Mike Nicley told me Thursday. “It could be a baseball bat. It could be a chair. The guy could pick up a tree limb.”

Rather than worrying what weapons an agent is reacting to, what we need is to ensure that agents are held accountable in a transparent manner whenever they use deadly force.

Nicley, who reviewed many use-of-force cases as a chief patrol agent, agreed with me on that. So did Shawn Moran, vice president of the agents’ union, the National Border Patrol Council. So did Vicki Gaubeca, a former Tucsonan who is a frequent Border Patrol critic with the American Civil Liberties Union in New Mexico.

“Our feeling is we have nothing to hide,” Moran told me.

In fact, the union asked in September that Customs and Border Protection release more information about incidents of the use of force by Border Patrol agents. Moran argues it will become clear that agents’ use of force is almost always judged proportional and justified.

Gaubeca isn’t so confident agents are appropriately using force but said with better information, we can have a better basis to decide.

But this is CBP and the Department of Homeland Security — transparency is not their forte. As evidence, I point to the same Police Executive Research Forum report that prompted Fisher’s decision not to change policies on using deadly force against rock throwers and vehicle drivers.

CBP considers the report “law-enforcement sensitive” and is not releasing it. The agency continues to consider its use-of-force policy similarly sensitive and will not release that either, even though many police agencies make such policies available on the Internet.

Nicley shakes his head at the secrecy that has continued spreading through the agency since he retired in 2007.

“The public hires Border Patrol agents, pays their salary, and gives them the authority to take a life under certain circumstances. They have a right to know,” he said. “The credibility of the agency is on the line when the public isn’t getting the answers they reasonably have a right to.”

Transparency problems crop up after an agent has shot someone or been accused of using excessive force. CBP habitually goes into a shell, revealing almost nothing about the case and deferring to the investigating agency, usually the FBI.

Union reps, agents’ lawyers and CBP insist that each case is investigated thoroughly, but often it takes two years or more for the results of any investigation to come out.

It’s been more than a year since Jose Antonio Elena Rodriguez was shot in Nogales, Sonora, by an agent on the U.S. side shooting through the fence, in response to alleged rock throwing. A CBP camera at the border took video of the incident. Still, there’s been no significant public accounting of the case.

As in other cases, until federal prosecutors decide whether to bring charges, the public is not allowed to know whether any administrative action was taken against the agent, whether he was moved, put on leave or stayed in the same status. These are all pieces of information that would be readily available on local police officers.

CBP, which operates the largest police force in Southern Arizona, assures us that it is in the process of making many changes in agents’ training, the deployment of alternative weapons and its analysis of incidents, among other measures dealing with the agency’s use of force.

Where they’ve not shown nor promised movement is in increasing the transparency of the process of holding agents accountable when they use deadly force.

Contact columnist Tim Steller at or 807-7789. On Twitter: @senyorreporter