The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent

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.