At the outset of the coronavirus pandemic, Customs and Border Protection encouraged officers to consider more lethal force when making arrests to protect themselves against the highly contagious virus, according to newly uncovered agency documents.
“Frequently, the necessity to use force, especially less-lethal force, requires an officer or agent to be in direct proximity and in personal contact with individual(s),” reads an April 2020 CBP memo. “If an officer or agent reasonably believes a subject may be infected with COVID-19, the threat of transmitting the virus to resist or evade arrest should be considered when establishing the immanency of a threat and the resulting determination of objectively reasonable force.”
The memo listed “electronic control weapons” (stun guns like Tasers) and “compressed air and munition launchers” (guns with rubber bullets) as tools that CBP officers could use from a safe distance.
In the coming months, CBP officers would join the sprawling law enforcement response to the Black Lives Matter protests of 2020 — even policing George Floyd’s funeral. The agency made headlines that summer for deploying a surveillance drone in Minneapolis and when unidentifiable Border Patrol officers whisked away a protester in Portland, Oregon. But new documents, obtained by legal advocates through Freedom of Information Act litigation, reveal the extent of CBP’s involvement, conducting arrests and barraging protesters with tear gas and rubber bullets — sometimes without the knowledge of other agencies, city or state leaders, or even CBP officials themselves.
The records — obtained by the Black Alliance for Just Immigration, the American Immigration Council, and the University of California Irvine School of Law’s Immigrant Rights Council — reveal that CBP deployed officers to at least 18 cities and towns across the country. That list includes Chicago; Minneapolis; Buffalo, New York; Dayton, Ohio; Gettysburg, Pennsylvania; Louisville, Kentucky; and Whitefish, Montana. Dozens more law enforcement agencies requested assistance or equipment from CBP, the heavily redacted records show, though the agency did not appear to fulfill every request.
The agency’s redactions of the document set, which consists of thousands of pages, conceal the number of officers deployed throughout the summer and other details about the operation.
CBP did not respond to The Intercept’s questions.
Emily Creighton, the legal director for transparency at the American Immigration Council, said that CBP’s involvement in policing protests — even when it was not asked to — “raises concerns about mission creep.”
The agency redacted the documents under an exception to protect law enforcement techniques, a justification Creighton said does not make sense given that the CBP operation concluded years ago. “If anything, the agency’s painstaking efforts to redact information contained in the records demonstrates a careful effort to conceal the extent of the agency’s involvement,” said Creighton, whether the CBP was doing so “to avoid embarrassment or in a blind adherence to redaction versus disclosure — a longstanding pattern with CBP and antithetical to the purpose of FOIA — a law intended to reveal to the public what its government is up to.”
CBP started policing protests within a week of Floyd’s death on May 25, the documents show. On June 1, the Department of Justice requested CBP agencies — including Border Patrol, the Office of Field Operations, and Air and Marine Operations — to “assist Federal partners with general law enforcement activities.”
The agency is generally authorized to operate within 100 miles of land and coastal borders, though that remit can be extended. On June 26, 2020, then-President Donald Trump issued an executive order directing numerous agencies — including the Department of Homeland Security, CBP’s parent agency — to provide assistance for “the protection of Federal monuments, memorials, statues, or property” amid the mass protests.
The documents reveal that CBP officers provided “situational awareness” for police departments, conducted “general law enforcement activities” and “crowd control,” monitored encrypted online chat rooms, and even arrested protesters.
The documents also include a breakdown of the agency’s aerial surveillance operations from Uvalde, Texas, and Miami to Dayton and New York City.
Jeramie Scott, director of the Electronic Privacy Information Center’s Project on Surveillance Oversight, said that such surveillance has a chilling effect on protesters’ First Amendment rights. “Agencies like CBP have no business conducting domestic surveillance and law enforcement operations that have nothing to do with the agency’s mission,” he said. “Surveillance tech will not solve structural racism in this country but has and will continue to exacerbate it without meaningful change.”
In some cases, it was local police departments that called on CBP for assistance. On June 4, 2020, the police chief in Pearland, Texas, solicited the help of the Border Patrol in preparation for Floyd’s funeral. The chief listed CBP capabilities including “tactical support with armored vehicles,” “less lethal force options” (rubber bullets), and “drone surveillance” as reasons for why they were reaching out for help. The CBP obliged and deployed officers to the community for nearly a week.
“We expect CBP to be primarily at our borders, but it seems that their authority far surpasses that.”
Tsion Gurmu, legal director of the Black Alliance for Just Immigration, viewed the CBP deployment to Floyd’s funeral as emblematic of a colossal operation with little answerability. “It is disturbing to know that enormous resources were spent to send federal law enforcement to team up with local law enforcement across the country to quash Black organizing, not to mention the militaristic language used to describe their role (e.g., developing a battle rhythm) and surveillance reaching as far as George Floyd’s funeral,” Gurmu said. “It’s clear that we still don’t have a full picture or understanding of the role of federal law enforcement and immigration agencies, and what role they might play in future policing efforts. We expect CBP to be primarily at our borders, but it seems that their authority far surpasses that.”
The documents indicate that, at times, senior CBP officials were caught off guard by news reports of their own agency’s involvement in the protests.
After Vice reported that the CBP flew a Predator drone over Minneapolis during the outset of the protests in May, for instance, Acting CBP Commissioner Mark Morgan sent an email to colleagues seeking more information. “Is this correct? Who asked [for] the support? What support are we providing?” Morgan wrote. “What authority are we using to provide the support?”
In mid-July, a video depicting a Portland protester being whisked away into an unmarked vehicle by unidentified officers went viral. The Nation soon reported that the officers were from CBP, but the documents show that in the immediate aftermath, even higher-level CBP officials were not quite sure.
“I see CBP is on the chain and may have additional info, because it is my understanding that it is very likely that the officers in the Twitter video were from CBP and using a rental minivan to conduct the apprehension on the video,” one official wrote, in an email chain discussing a press response to the video. “CBP was looking into this last night to obtain more facts.”
The Portland incident took place just after Morgan had recommended that CBP officers take “a more enhanced proactive posture” in response to the city’s protesters. In a July 15 email, Morgan also wrote of his desire “to ask for enhanced FBI engagement from an investigative standpoint to identify the organizers and modes of communication to proactively disrupt the actions of these criminals,” adding that “we must move more aggressively beyond reactive enforcement.”
“I know we’ve had a call and there is a set of actions in place, but I’m recommending ramping-up our presence there and being even more proactive in making arrests,” Morgan wrote. “If the local police will not take meaningful actions nor will the Governor call in the National Guard, then it’s up to us.”
As federal agencies, including CBP, prepared to deploy agents to Chicago to quell protests, a Department of Homeland Security director acknowledged that their presence was not invited. “There has been no request from the State or City for federal assistance,” the official wrote. “Other cities are being discussed for possible additional ‘surge ops’. Two cities mentioned were Kansas City and Albuquerque.”
The records show that “CBP lacked real understanding about its own role at the protests,” said Creighton, of American Immigration Council. “The agency’s own numerous reports describing protester activity reveal that most protests were peaceful, that the show of force from CBP was not necessary, and when CBP’s presence was revealed, it was shocking and unwelcome to protesters and the general public.”
Some CBP officers may not have been equipped to do the kind of work they were doing at all, and the records show officers in some jurisdictions received rushed additional training just days before their deployments. “All efforts must be taken to ensure the safety of CBP personnel and they should not be placed in roles that put them in direct contact with the public since they do not possess the appropriate crowd control training and equipment,” one CBP field liaison director wrote ahead of a deployment in Los Angeles.
The emails also show that CBP officials felt they were not getting due credit for their policing of protests. “As you can see, OFO deployed significant resources and provided a substantive response to the civil unrest around the nation,” an official from the CBP’s Office of Field Operations wrote in a June 2020 email. The official expressed concern that “the majority” of the agency’s activity was not represented in a report for the DHS Office of Operations Coordination, or OPS. “Can you ensure that our activity is included in the final report and not substantially chopped as it has been in the last couple days. OPS does perform an initial chop.”
