Tucson News Now

On Monday February 9, 2015, Channel 13 News in Tucson, AZ (KOLD) published the above video and an investigative report on internal CBP checkpoints:

TUCSON, AZ (Tucson News Now) –

“There’s growing concern surrounding southern Arizona’s Border Patrol checkpoints. An increasing number of complaints are now coming from United States citizens who believe they’re wrongfully being questioned and sometimes detained by agents without probable cause….”

The complete report and video can be found on KOLD’s website at:

Border Backlash: Concern over the border patrol’s interior checkpoints

[Information above made available by the Center For Investigative Reporting]

In 2008, CBP agent Abel Canales was observed & documented by gov’t investigators accepting bribes to allow truck loads of illegal narcotics and aliens through the Tucson Sector I-19 checkpoint. For some inexplicable reason however, Canales was allowed to continue operating in the field for over three years until he was finally indicted in 2011. In 2012, Canales plead guilty to a single charge of bribery.

During the three years in which a fully armed & corrupt Canales was allowed to continue working in the field, interacting with an unsuspecting public in a position of power and influence, Canales managed to dig his hole even deeper by shooting and injuring for life an unarmed illegal immigrant in 2010.

That illegal immigrant turned around and filed suit against Canales and the federal government. Earlier this week, a federal judge largely agreed with the plaintiff and awarded him $500,000 dollars for Canales’ excessive use of force. $500,000 that will ultimately be paid by an unsuspecting public.

Several articles regarding Agent Canales and this case can be found below:

Judge: Migrant shot by agent should get $500,000
U.S. ordered to pay $500,000 in Border Patrol shooting
Agent charged with corruption now at center of civil suit over shooting

I suppose we should feel lucky that Canales didn’t do even more damage during his three years of ‘service’ to the country while being allowed to operate with impunity in the public sphere during his corruption investigation.

What’s interesting to note is that while CBP takes its sweet time taking corrupt agents like Canales off the streets, it reacts with blinding speed when trying to get rid of agents like Mike Flanders who actually attempt to uphold the public trust in the performance of their duties. The stark contrast in cases like this make it clear where CBP’s priorities really are.

As stories like this continue to pour out of the Department of Homeland Security, perhaps the question we should be asking ourselves is while CBP is allegedly ‘protecting’ us from illegal aliens, smugglers, & drug lords, who is protecting us from CBP?

For more blog entries regarding CBP corruption in these pages, see:

Border Patrol Corruption Worse Than First Thought

Proving itself to be an equal opportunity harasser regardless of what border it operates near, Border Patrol agents stationed near Canada were recently caught on tape illegally detaining, physically assaulting and tasering 21 year old Jessica Cooke near Waddington, New York.  The incident occurred on May 7, 2015 and the agents primarily responsible for the assault can be seen above as well as in the video below:

The victim, Mz. Cooke, was driving home along Route 37 in Northern New York with her puppy when she was stopped & seized at a temporary roadblock erected by Border Patrol agents not actually patrolling the border. Rather, the armed federal agents were interfering with domestic traffic absent individualized suspicion of wrongdoing along an East-West highway several miles South of the international border with Canada. Since Route 37 is a rural highway that connects several local communities in the area and runs East to West, it is not a nexus point for border traffic . Indeed, a review of the video above shows a domestic farm house on the opposite side of the road where the incident took place:

During the initial stop, the female agent apparently ordered Mz. Cooke to open her trunk for a search absent probable cause. The driver refused making it clear she didn’t consent to the intrusion. This in turn prompted the female agent to not only demand Mz. Cooke’s driver’s license but to also order her over to secondary inspection for an extended detention (and a drug dog sniff from a K9 unit that wasn’t present at the time of the incident and had to be called to the scene).

For those of you who live in the Southwest, you’re probably already quite familiar with this particular Border Patrol tactic. See:

The video of the incident picks up at some point after the driver has pulled into secondary inspection per the agent’s demand. The driver can be heard asking the agent what’s going on while demanding that her license be returned to her. The female agent walks over and hands back her license at about the same time the onscene supervisor is walking over as well.

After handing back her license, neither agent asks any questions regarding her citizenship making it clear they were satisfied with her immigration status. This should have marked the end of the detention since the lawful scope of the roadblock is limited to brief immigration-related queries. Indeed, according to the U.S. Supreme Court, at internal roadblocks agents need consent or probable cause to extend the initial stop or to search:

“It is agreed that checkpoint stops are ‘seizures’ within the meaning of the 4th Amendment.” – U.S. v Martinez-Fuerte

“(secondary) Referrals are made for the sole purpose of conducting a routine & limited inquiry into residence status that cannot feasibly be made of every motorist where the traffic is heavy.” - U.S. v Martinez-Fuerte

“The 4th Amendment held to forbid Border Patrol officers, in the absence of consent or probable cause, to search private vehicles at traffic checkpoints removed from the border & its functional equivalents, & for this purpose there is no difference between a checkpoint & a roving patrol.” – U.S. V Ortiz

“…We have held that checkpoint searches are constitutional only if justified by consent or probable cause to search….& our holding today is limited to the type of stops described in this opinion. -‘[A]ny further detention…must be based on consent or probable cause.’ ” United States v. Brignoni-Ponce, supra, at 882. None of the defendants in these cases argues that the stopping officers exceeded these limitations.” - U.S. v Martinez-Fuerte

Instead of allowing the driver to go on her way however, the agents continued the illegal seizure – going so far as to state that Mz. Cooke could walk away or call a friend to pick her up but that she couldn’t take her vehicle with her. To justify this, the female agent claimed the driver had been acting nervously, something anyone would be when faced with armed government agents seizing you under threat of force absent reasonable suspicion to interrogate you for unknown crimes. Something that’s especially true when the agents are employed by an agency that’s as unaccountable, opaque and out of control as Customs & Border Protection.

The driver protested the extended seizure and things went down hill quickly from there. In short order, the supervisor laid hands on the driver & shoved her to the ground while the female agent pulled out her tazer and used it on the screaming 21 year old woman.

To the folks who live in the Northern part of the country and are experiencing the special brand of  ‘service’ and ‘protection’ offered by the U.S. Border Patrol with Customs & Border Protection under the Department of Homeland Security for the first time, let me welcome you to Checkpoint USA

Links to several additional articles associated with this incident are available below:

• Border Patrol Agent Tases, Tackles, Handcuffs Woman for Questioning his Authority (Updated II) – Photography Is Not A Crime
• Immigration law expert provides insight on Border Patrol incident with Ogdensburg woman – Watertown Daily Times
• SUNY Canton criminal justice student tased at border checkpoint after refusing trunk search, resisting order to move – North Country Now
• Border Patrol Under Fire for Using Stun Gun on Woman – Off Message
• Immigration Checkpoint Tyranny – Future of Freedom Foundation

A federal magistrate in Phoenix, Arizona recently chastised U.S. Customs & Border Protection (USCBP) and the Department of Homeland Security (DHS) for blatant violations of the Freedom of Information Act. The magistrate’s findings were the result of an ongoing lawsuit filed by the ACLU & two University of Arizona law professors over three years ago.

While violations of federal law by DHS and USCBP are nothing new and FOIA lawsuits against them are numerous, what’s relatively unique in this case is the subject of the FOIA lawsuit referenced above. Specifically, it targets the Green Monster’s policies & procedures regarding interior enforcement operations such as internal roadblocks and roving patrols along with complaints filed against USCBP related to the enforcement of those policies and procedures.

True to form, USCBP initially refused to investigate or respond to the ACLU’s complaints regarding interior roadblock and roving patrol operations and only grudgingly began releasing documentation after a FOIA lawsuit was filed in 2014. Over a year later, only a fraction of the thousands of responsive documents had been released to the ACLU by USCBP and what was released had been heavily redacted. U.S. Customs & Border Protection then declared it was done cooperating with the FOIA request and refused to release anything further. In response, the ACLU published a preliminary report based upon what had been released while at the same time appealing to the federal judiciary regarding the heavy redactions in the released documents and the thousands of remaining documents that hadn’t been released at all.

The ACLU’s preliminary reported titled:

Record of Abuse: Lawlessness and Impunity in Border Patrol’s Interior Enforcement Operations

was released in October 2015. While the report was based on incomplete documentation from USCBP, it nonetheless made it abundantly clear why the Border Patrol was refusing to release anything further:

Government records obtained by the ACLU shed new light on Border Patrol’s vast interior enforcement operations, most of which occur far from any international border. Though Border Patrol says these operations are “safe, efficient, and cost-effective,” the agency’s own records undermine those claims, revealing a systemic lack of oversight and accountability for agents who violate border residents’ most basic civil and constitutional rights on a dramatic scale. These documents show that Border Patrol’s extra-constitutional police practices often amount to a de facto policy of “stop and frisk” for border residents.

The report goes on to not only show that USCBP has been actively lying to Congress by substantially under-reporting the number of complaints filed against the agency:

Government transparency is critical to maintaining a functional democratic polity, where the people have the information needed to check public corruption, hold government leaders accountable, and elect leaders who will carry out their preferred policies,” he wrote. The result, he said was FOIA, which is designed “to facilitate public access to government documents by establishing a judicially enforced right to secure government information from possibly unwilling official hands.

• USCBP has no valid reason for refusing to release information regarding the location of the agency’s interior roadblocks since such roadblocks aren’t secret, cannot be made secret given the nature of the operations & part of SCOTUS’s rationale for allowing them in the first place was based on their limited scope and visibility to the public
• USCBP’s contention that releasing data regarding the nationality & skin color of people stopped by agents was  a violation of their privacy is laughable since personally identifiable information regarding such individuals was not being requested.
• Since the USCBP claims their drug sniffing dogs are reliable and certified, USCBP can’t withhold documentation related to the certification and reliability of the K-9 units routinely employed at interior roadblocks.

While all of these points are common sense to most of us, it’s clear that USCBP leadership is not only full of individuals with little in the way of common sense but also individuals who have little more than thinly veiled contempt for the rule of law, individual rights and government transparency. What else would one expect however from agents of an agency that routinely stops, seizes, detains and demands individuals answer investigatory questions absent any reasonable basis to believe they’ve violated any law while at the same time ignoring their legal mandate to answer questions and provide access to public documentation to the very public the agency claims to serve and protect.