May 28, 2010, use of force incident at the San Ysidro Port of Entry San Ysidro, California
On May 28, 2010, in San Diego County, U.S. Border Patrol Agents (BPA) arrested a 42-year-old Mexican national for illegally entering the United States. At the Border Patrol station during processing, the subject became verbally abusive and physically non-compliant. The subject’s abusive and disruptive behavior continued throughout the processing for his arrest and voluntary return to Mexico. When processing activity was completed, two BPAs transported the subject to the San Ysidro Port of Entry (POE) intending to turn him over to Mexican immigration officials.
At the southbound pedestrian gates at the POE, the BPAs removed the subject’s handcuffs and escorted him to the pedestrian gate. At that point, the subject became physically combative, kicking and punching the BPAs. Agents from U.S. Immigration and Customs Enforcement (ICE) who were at the POE witnessed the situation escalating and proceeded to assist the BPAs, who did not have physical control of the subject. The ICE Agents delivered strikes with their collapsible straight batons in an attempt to gain the subject’s compliance with their orders to stop forcibly resisting their control efforts. The subject was eventually taken to the ground and handcuffed; however, he continued fighting and kicking the agents. BPAs decided to return the subject to the Border Patrol station and process him for removal proceedings, rescinding his voluntary return.
When the BPAs attempted to place the subject back in the government vehicle, he remained combative, fighting, kicking, and purposefully banging his head on the vehicle door. Several U.S. Customs and Border Protection Officers (CBPO) responded to assist, including one who, after several verbal warnings, deployed his Electronic Control Weapon (ECW). The subject continued to be combative during the cycling of the ECW, and was able to forcibly kick the CBPO deploying the ECW in between one of the ECW cycles. Downloaded information from the ECW showed the ECW was cycled a total of four times. The subject subsequently stopped resisting and became unresponsive. The BPAs and CBPOs immediately called EMS and began life-saving efforts on scene. EMS arrived and transported the subject to the hospital, where he was placed on life support and later pronounced dead.
On November 6, 2015, the U.S. Department of Justice, Civil Rights Division, declined to pursue charges against the officers or agents, including the officer who deployed the ECW, citing no evidence of a prosecutable violation of civil rights statutes.
Result of the NUFRB
On March 10, 2016, the NUFRB convened to review the incident. Following a thorough review of the facts and circumstances of the case, the NUFRB determined that the use of force by the CBPO was in compliance with CBP’s Use of Force Policy in effect at the time of this 2010 incident.
Since the time of this 2010 incident, CBP use of force policy, including policies regarding the use of ECWs, has changed significantly. Among other changes, current CBP ECW policy (as captured in CBP’s 2014 Use of Force Policy, Guidelines and Procedures Handbook) specifically cautions officers and agents that they should not deploy an ECW against particular subjects, including one who is handcuffed, and that a subject “should not receive more than three ECW cycles.” CBP policy also emphasizes that if the use of an ECW is unsuccessful, officers and agents “should transition to another reasonable force option.”