Two UA law professors teamed up with the ACLU to draft a report on problematic Border Patrol practices
People mill about outside of the James E. Rogers College of Law at the UA on Thursday, Oct. 22. Two UA law professors teamed up with the American Civil Liberties Union in search of documents detailing Border Patrol activities in the Tucson and Yuma sectors.
The American Civil Liberties Union of Arizona and two UA law professors worked together to release a report about problems within the Border Patrol’s interior enforcement at checkpoints and roving vehicle stops throughout the Tucson and Yuma sector. This report is based off of the release of public records from the Department of Homeland Security and Customs and Border Protection about their checkpoints and roving vehicle stops.
These records were not obtained without obstacles. James Lyall, a staff attorney for ACLU Arizona, worked with UA law professors Derek and Jane Bambauer to request records from the DHS in accordance with the Freedom of Information Act, commonly known as FOIA. The law allows the public to obtain records of government agencies as long as the records in question do not fall under certain exceptions. According to the records from DHS, Lyall originally sent in an FOIA request on Jan. 23, 2014. Lyall said the request included information from the Tucson and Yuma sectors dating back from January 2011 to January 2014, when they originally requested the data. Despite FOIA having strict guidelines for responding to requests, DHS did not respond to Lyall’s request.
“Unfortunately, DHS and its component agencies have a horrible track record when it comes to FOIA requests. They do not generally comply with the statute and oftentimes force people who are seeking public information, as authorized under this law, to file lawsuits in order to obtain the information,” Lyall said.
Lyall and the Bambauers did just that, first appealing to DHS in February 2014 and eventually filing a lawsuit in April of that year.
“It’s only by suing did we actually get them to pay attention to our request,” Derek Bambauer said.
Through this litigation, Lyall and the Bambauers started receiving their record requests in waves. However, Lyall said they still do not have all of their requested data. Stating that they are still waiting to receive “at least half” of the records they have requested. The lawsuit continues today, with Derek Bambauer estimating another year before it is resolved.
“It’s necessary to have this information to make an informed decision about these policy decisions that are being made with our tax dollars,” Lyall said. “If the agency is allowed to conceal that information from the American public and the policymakers, no one can make informed decisions about these practices.”
Along with the FOIA violation, Border Patrol’s other practices are also troubling to Lyall and the Bambauers. The report features complaints from people who considered their rights to have been violated by the Border Patrol at checkpoints. According to Lyall, many complaints were about false canine alerts, excessive use of force, being pulled over without reason and racial profiling. Lyall mentioned that some of those who filed complaints were allegedly threatened with weapons when they did not cooperate with officers. Lyall said he was particularly alarmed by the “sheer weight” of all of the complaints.
“These are a lot of people whose rights have been badly violated,” he said. “These are not minor infractions or a few bad apples. This is systemic, widespread abuse of hundreds, probably thousands, of Americans.”
With these complaints come chances for reform, but Lyall said most investigations conducted for these complaints were “very cursory” and “superficial”. The records show that some complaints were followed up with memoranda from officials involved in the incidents, but not all cases include investigations past that point.
“Their records show that most of these complaints are never investigated by their oversight agencies within DHS, but rather get bounced back to the border sectors, where they’re just kind of summarily dismissed,” Derek Bambauer said. “The thing that concerned us is that if you’re someone who’s treated poorly, you’re told that you have the ability to fill out a complaint. And what they don’t tell you is that they’re just going to ignore it and that it’s completely a waste of your time.”
This lack of response to complaints has driven some people to sue the Border Patrol, but Bambauer said that the money and time involved can make it difficult for the average person to carry out these lawsuits.
Even with all the complaints received, checkpoints and vehicle stops do apprehend criminals. Lyall sees a problem with the proportion of the apprehensions that come from these stops, though. According to what he said he found in the records, during one year in the Tucson sector, less than one percent of total apprehensions were from checkpoints.
“We’re seeing all of these abuses, all of these rights violations [having a] really devastating impact on local communities. And on the other hand [the Border Patrol is] not getting a whole lot by way of enforcement benefit from those activities,” Lyall said.
This doesn’t necessarily mean the Border Patrol will be changing its practices anytime soon. Derek Bambauer said that when it comes to reform the agency is rather resistant, but with outside help from a presidential administration or a congressional delegation, he could see it being a possibility. In the meantime, he sees the report as a way to raise awareness for the agency’s reform among citizens.
“We hope the report encourages people to talk about the issue, to draw attention to it, to talk to their congressional representatives about it, to talk to their neighbors about it,” Derek Bambauer said. “The more visibility that this particular set of problems draws, the more likely it is that we’ll get some reform of the agency.”
Both Derek Bambauer and Lyall suggest that people talk to the ACLU if they have issues with the Border Patrol agency. All the while, their lawsuit against the DHS’s FOIA violation is still in progress. They are still waiting to obtain policy documents that explain the factors considered for stopping people as well as the training guidelines for canine units. They are hoping these records will help them understand why some stops happen and others don’t.
“What we’ve found so far ought to be extremely disturbing and raise a lot of questions,” Lyall said. “This is the largest federal law enforcement agency in the country, and there’s still an awful lot that we don’t know about what it is doing, especially in these wide-ranging interior operations.”
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