Are These the Folks You Want Policing Your City?

However necessary a federal presence may be in some places, DHS should leave the CBP at home.

|The Volokh Conspiracy |

It may well be necessary to deploy federal personnel in some cities to protect courthouses and other federal properties. The federal government has the authority and responsibility to protect federal property. There are also legitimate federal interests in enforcing federal law (though federal law should itself not exceed constitutional limits nor impinge on state interests).

If federal agents are going to be dispatched to various cities to enforce federal law, they should still be expected to follow the law and respect constitutional rights. On that score, there are good reasons to believe that some federal agencies are more responsible and accountable than others. The Customs and Border Patrol (CBP) is the nation's largest civilian law enforcement agency, but it also appears to be the least disciplined and least accountable.

Just how bad is the CBP? This amicus brief filed on behalf of former CBP officials paints a very disturbing picture of an agency that is out of control, and is either unable or unwilling to discipline rogue agents.

[T]he Border Patrol has become increasingly militarized since 2001, with some agents comparing their role to that of the U.S. Marine Corps—even though the Border Patrol is not part of the military, and is instead a civilian law enforcement agency. Combined with inadequate field training on appropriate uses of force, these factors have led to an environment in which Border Patrol agents have unnecessarily employed lethal force on the U.S.-Mexico border.

When excessive force incidents occur, internal government investigations suffer from systemic problems. The agency with the most direct interest in the investigation—CBP—can only undertake an investigation if another agency declines. And agents maintain a culture of protectionism that thwarts investigations even when they are undertaken.

As the brief documents, the CBP does not adequately screen or trains new hires, and misconduct is rampant. Even when CBP officers resort to lethal force without adequate justification, little is done about it.

As I said above, it may be necessary for the federal government to deploy agents to protect federal property, courthouses in particular. But not just any federal agents will do, and the CBP are the last people who should be patrolling the streets of our cities.

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  1. “The Customs and Border Patrol (CBP) is the nation’s largest civilian law enforcement agency, but it a,so appears to be the least disciplined and least accountable.”

    the ATF and FBI both are much worse, top to bottom.

    1. The FBI? Based on what?

      1. The Michael Flynn trial and persecution, for one.

        If they FBI wants to get you, they’ll get you.

        1. Flynn made it easy. The ‘selling your country out’ and ‘lying under oath’ parts in particular.

          1. Oh Arty,

            You really believe Flynn “sold his country out” to the Russians? Really?

            1. Yes. He did. And he pleaded guilty. And he collected a lot of money on doing so. If that’s all you have against the FBI you’ve got nothing.

            2. As I recall, those were the words of the federal judge before whom Flynn lied on the record.

    2. this. The FBI is a shitshow.

  2. The only plausible alternative would appear to be the military.

    1. Perhaps counter-intuitively they might be better since they aren’t necessarily trained to view themselves as at war with the civilian population.

      1. Nothing “counter-intuitive” about it.

        US soldiers are better trained and far more disciplined than any police force. Military has soldiers who are trained police as well.

        The Portland problem is that there are not sufficient agents deployed. They are in a static position [courthouse] and unable to form a proper perimeter. So they are reactive and unable to keep the rioters away so its a constant ebb and flow of violence.

  3. “Authority has always attracted the lowest elements in the human race. All through history, mankind has been bullied by scum.” – PJ O’Rourke

    The Border Patrol has been sent in recognition of its fealty, not its quality.

    1. Would you say that about every LEO? Or the military? Or – in particular – the military command, i.e., the ones with the authority?

  4. If only the agencies that gave us Ruby Ridge and Waco were available! Then we would have peace and complete respect for life, liberty, and due process.

    1. Arguing for more restraint at Ruby Ridge and Waco, yet less restraint in Portland, seems the work of deplorable clingers.

      If that is how Trump fans wish to spend their final six months of cultural relevance, do your damnedest, clingers!

  5. I know lawyers with a reputation have to pretend this isn’t an exercise in manufacturing video footage for a re-election campaign.

    The rest of us don’t.

    But I do hope the armchair authoritarians have fun setting precedent for President AOC’s March on Montgomery.

  6. Let the courthouse burn. If the Feds are out of the area, watch the media try to understand how this could happen with all the protestors being so peaceful.

    1. Your mistake is assuming the media would provide any coverage if the Feds weren’t there and the courthouse was burned down.

  7. Dumbest logic in the world. CBP are trained to protect borders and prevent bad actors from entering U.S. soil. That’s their job. Logically, they would be best trained to prevent bad actors from entering federal property and protect the property’s borders. And they actually do their jobs unlike the FBI who just a week ago couldn’t protect a federal judge’s family when the assailant had previously threatened her publicly on Facebook.

    1. They’re not trained to deal with citizens with their full panoply of rights.

      1. Are they trained to any degree? Is there any indication they have solid judgment, training, temperament, education, or character?

        What kind of person works for Customs and Border Patrol? Whether that is one half-step above a drug warrior or one-half step below seems a difficult call.

  8. An amicus brief?

    Well, that is authoritative. All authoritative studies are in the form of litigation arguments.

    Why are they “former CBP officials”?

  9. Strawman fallacy, Cherry Picking fallacy, Narrative Fallacy. It’d at least be honest if Prof. Adler would just say “I don’t like the CBP” instead of wrapping it up into this dumpster fire of a narrative.

  10. “But not just any federal agents will do, and the CBP are the last people who should be patrolling the streets of our cities.”

    FWIW, in the interview of the DHS/CBP bigwigs a few days ago, their rationale for sending the particular people they did is that those folks have specialized training in crown control, as opposed to say the FBI or Marshal’s service.

      1. It’s worth more than you think. The FBI is an investigative service, the Marshals focus on fugitives and protecting judges, etc. CBP/ICE or Border Patrol are the only services that regularly deal with large groups, either at the border or as part of the work. I can tell you with certitude, that your average FBI agent doesn’t know squat about dealing with riots or crowds.

      2. Help me out here, Bernard.

        You’re the FPS (Federal Protective Service) guy charged with protecting the building. When you go to a Federal Court, these are the nice guys in blue blazers running the metal detectors. They aren’t just nice rent-a-cops, they are sworn LEOs. Along with the marshal’s service, they have to worry a bit about high profile trials, where say a drug lord’s friends might try to free them, or their enemies might try to whack them. If you know any, it tends to be a second career for LEOs; there is a lot of silver hair. They aren’t really trained or tasked for riot control. And the staffing level isn’t all that high – I know of high profile trials where extra bodies are brought in for weeks of TDY because the local people are only staffed for the normal day-to-day stuff.

        So now your building becomes the focal point for protests. Well, let’s be honest – people could march by chanting all day long and it’s no worry of yours. But some people want to break windows and light fires and so on. And you do what you can with the local people, but the violence goes on and on. Your guys can only work 16 hour days for so long. So you ask for help. Where is that help going to come from? You are already using all the locals you have, so the help is going to have to come from out of town.

        And now put yourself in the shoes of the senior folks deciding who to send. We could get some cybercrime or banking fraud guys from the FBI, maybe, or counterfeiting guys from the Secret Svc, etc. But none of those are specially trained for riots. And someone says ‘What about BORTAC’? Wikipedia describes their function as “BORTAC teams are often used to provide a tactical federal law enforcement capability across the country, helping with security for events such as the Super Bowl, as well as being deployed to natural disaster areas to ensure that civil unrest does not break out. Additionally, BORTAC teams can be called upon to assist local law enforcement in high-profile events such as the 1992 Los Angeles riots, where they were part of the 1,000 riot-trained federal special agents sent in an attempt to end the rioting in the Los Angeles region…”. Don’t they sound like a better choice for riot control than Park Rangers or fraud investigators?

        I’m just a little baffled by the objections. We don’t want to have to rebuild the federal building every time a crowd wants to burn it. If we want to stop crowds from burning it, who would you rather send? Ideally the local police would help, but that doesn’t seem to be the case in Portland. If you were in charge, how would you defend the building?

        1. So what you’re saying is that we have a critical capability gap when it comes to protecting government property.

            1. Adler points out these Feds are badly trained for what they’re doing, which creates loads of risks of bad things.
              You point out that they are nevertheless the best fit for the job.

              Assuming that is true, that points to a pretty fundamental policy failure, no? Badly trained personnel should not be the best solution here. Either train these folks properly to do this work, or get another group and train them.

              I have another theory about why these troops are being used – DoD wouldn’t play back in June so Trump turned to a more personally loyal agency.

              1. Wow, that’s one of the more disingenuous statements I have seen at the Conspiracy. Imagine what Sarcastro and his comrades would say if Trump had deployed military personnel.

                1. I would also have been against it. But not because they were badly trained.

                  Don’t call me a liar without more evidence than speculative counterfactuals.

              2. “Adler points out these Feds are badly trained for what they’re doing, which creates loads of risks of bad things.
                You point out that they are nevertheless the best fit for the job.”

                The amici brief is 1)like any brief, arguing for one side in an ongoing lawsuit, and 2)seems to be discussing the entire CPB force in general, not specifically the folks in Portland. For example in the WWII to Korean War, and early post VN war period the Army as a whole was fairly bad off, but the Special Forces were still top notch. I don’t think that brief, even assumed true, says anything about BORTAC. In general, other LEOs who have worked with BORTAC seem to have a good impression of them.

                (Did you see this when you read the brief: “From 2006 to 2009, CBP hired over 10,000 new officers, including nearly 8,000 Border Patrol agents.”. I’m surely willing to grant that hiring sprees like that rarely work out well. You may recall when the D.C. police did a similar thing some years ago. CPB may indeed have some housecleaning to do.)

                “I have another theory about why these troops are being used – DoD wouldn’t play back in June so Trump turned to a more personally loyal agency.”

                Brett, is that you???

                1. If you argument is just ‘I don’t believe Adler met his burden’ then make that argument.

                  But that’s not the argument I was replying to.

              3. “why these troops are being used – DoD wouldn’t play back in June so Trump turned to a more personally loyal agency.”

                They are not “troops”. They are civilian US federal law enforcement. From both DHS and DOJ.

                Everyone would be better off if they were troops, they would be better trained and led with better discipline. There would be sufficient men to do the job too.

                1. Better off I’ll give you, though not better than if the Feds left well enough alone.

          1. We shouldn’t. Normally, the federal government, just like any other property owner, expects to be able to depend on the local police. Having federal police to supply that service would be redundant.

            Now we have a circumstance where the local police are being ordered to let the crimes happen, and to some extent are complying with the orders. The capability gap is being manufactured by the local government.

            That’s likely to become frequent going forward, as we continue our slide towards civil war, so they’re going to have to fix that gap.

            1. Depending on local police to defend federal property and personnel? I’m not sure that’s Constitutional. Certainly, it’s an obvious and foreseeable vulnerability.

              1. So the contingency, to avoid massive over staffing and the waste of taxpayer money is to send in specially trained teams from a central location.

                1. Why a central location?

                  The Feds have specialized hostage guys, seems a pretty fundamental failure they couldn’t find a group good at quelling unrest.
                  America has been thinking about that exact issue overseas for nigh on 2 decades now…

                  I have my theory why these not-fit-for-purpose feds were used, and it’s that DHS was tapped as the only agency willing to do this nonsense for Trump.

                  1. “only agency willing to do this nonsense”

                    I do love how you expect bureaucrats to decide when they will do things.

                    Bureau of Prisons is DOJ. They have people there. Same with US marshals, part of DOJ and part of this effort.

                    So that is both domestic security agencies. Who do you think should provide agents?

                    1. Agencies that can deploy force have regulations and laws surrounding when they’re allowed to do so.

                      The President doesn’t get to countermand those with a simple order.

                      First, of course, I don’t think you need any agents at all; this is a dumb thing for the Feds to get overtly involved in.
                      Second, as I noted if there are no better troops, that’s a massive failure on the part of our government.
                      Third, as you yourself noted, the best fit would be the DoD, but Trump wants them also to be loyal to him, so…DHS it shall be.

                    2. “Agencies that can deploy force have regulations and laws surrounding when they’re allowed to do so. ”

                      Zero evidence they are not acting within the applicable law.

                      AG and DHS secretary have significant [not unlimited] power to direct their agencies to perform special functions.

                      “massive failure on the part of our government”

                      Like you’d support a large rapid reaction force at DHS or DOJ.

                      It would be a waste most years. The tendency would be to use it to justify budget as you well know.

                      You are just being coy.

              2. They’re in the middle of a city so why shouldn’t they depend on local LE like the rest of the populace? Are you arguing for Marine Embassy guards and perimeters for every courthouse and Federal building in the country?

                Oh, wait you want everyone to cower before the mob. Sorry, thought you were offering something substantive.

                1. Preventative force to protect buildings 24-7 would indeed be silly. And authoritarian.

                  Generally, you should treat crimes against federal property as a criminal matter, not a civil unrest matter.

                  But would it not be commandeering to rely on local law enforcement to enforce federal laws about federal property? You should at least have a pro forma ability to enforce your own laws. And, of course, the government does. But the laws are enforced as laws, not as an excuse to take over the streets.

                  1. “But would it not be commandeering to rely on local law enforcement to enforce federal laws about federal property?”

                    No, not remotely. If they issued an order to the local PD saying, “station X number of guards around our building during the hours of 8PM to 8AM”, yes, that would be commandeering.

                    But just expecting to be the beneficiary of normal law enforcement, like any property owner? No, not remotely commandeering. If somebody commits arson against a federal court house, why should they not expect the local police to treat it at least as seriously as you’d expect them to treat somebody committing arson against a deli or a private residence?

          2. When something isn’t required often and is suddenly in extremely high demand, yes, you will have a gap. The secret service has the manpower to protect the president and candidates. However, they are in relatively short supply compared to the sudden demand. Local police, who normally do the brunt of this work are nowhere to be seen.

            This is known, in most industries, as an “all hands on deck” situation. You have to get everyone doing critical tasks, even those who aren’t specialized for it or who normally do other things. Just like in a restaurant on Mother’s Day: the accountant is washing dishes and every manager is running plates. This isn’t normal, but it isn’t unexpected.

            1. This is not anything like an all hands on deck situation. You think the entire Federal government – or even the entire DHS is deployed right now?!

              1. No. Not everyone. Not yet. However, everyone that they have that specializes in guarding public areas during protests has definitely been called up, and they obviously need more people. The Feds are on the second string (if not the third), which is everyone in related duties to crowd control. They have a lot of other manpower that they can draw in from further and further related fields. Objecting to border patrol being present is just making up reasons to be upset when there’s a perfectly good reason for them to be there.

                I know you’re a smart man when you choose to be, my friend. In fact, either there are multiple people using your account or you are just having too much fun living up to your username.

        2. The guys in the blue blazers providing courthouse security are Court Security Officers, private security guards working under contract with US Marshals. They are usually retired law enforcement or former military, and they’re generally deputized.

          FPS is a component of DHS charged with providing security at GSA manages buildings (not just courthouses). They’re a “normal” law enforcement agency in terms of equipment and personnel.

  11. It would be ideal if the local and state law enforcement assets you know did their job. But, political points need to be gained and that means letting rioters do their thing.

  12. The CBP polygraphs all new hires. Which means that get people who are able to lie convincingly.

  13. The criticisms of the CBP apply equally to local police, particularly in large cities. That’s what triggered this mess.
    But a good-faith criticism of the CBP should suggest alternatives for protecting Federal property. So far, all I have seen from this author are the criticisms.

  14. I’ll tell you who I don’t want policing anything – the FBI.

    The story of the Russia hoax, the coup attempt based on zero evidence, just keeps getting worse.

    The latest is, guess who Steele’s source was for the dossier? Turns out it was a drunk Brookings Institution analyst (LOL!). He was buddies there with Fiona Hill, another person who had their 15 minutes of fame/shame recently.

    https://www.realclearinvestigations.com/articles/2020/07/24/meet_steele_dossiers_primary_subsource_fabulist_russian_at_us_think_tank_whose_boozy_past_the_fbi_ignored_124601.html

    1. More investigatory insight from the birther-Benghazi-bigot side of the aisle.

  15. Where were our tough-guy, law and order bigots when a guy trying to pay respects at a federal military cemetery was denied that opportunity because an armed gang of gullible, downscale, right-wing kooks had swarmed the cemetery on the lookout for illusory flag-burners, and objected to the t-shirt the guy was wearing?

    Six more months, clingers. Six more months. Then, the reckoning.

  16. An AP story on Portland, from both sides of the fence.

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