/$:(1)25&(0(176(16,7,9( 
 

U.S. Customs and Border 

Protection Compliance 

with Use of Force Policy for 

Incidents on November 25, 

2018 and January 1, 2019 

(REDACTED) 

:DUQLQJ7KLVGRFXPHQWLV/DZ(QIRUFHPHQW6HQVLWLYH/(6'RQRWGLVWULEXWHRU

FRS\WKLVUHSRUWZLWKRXWWKHH[SUHVVHGZULWWHQFRQVHQWRIWKH2IILFHRI,QVSHFWRU

*HQHUDO

August 24, 2020 /$:(1)25&(0(176(16,7,9( OIG-20-64 
$XJXVW
 
LAW ENFORCEMENT SENSITIVE 


OFFICE OF INSPECTOR GENERAL 


Department of Homeland Security 

Please call me with any questions, or your staff may contact Sondra McCauley, 

Assistant Inspector General for Audits, at (202) 981-6000. 

Attachment 

cc: 	Rodney S. Scott, Chief, U.S. Border Patrol, U.S. Customs and Border 

Protection 

Matthew Klein, Assistant Commissioner, Office of Professional 

Responsibility, U.S. Customs and Border Protection 

Christopher A. Bishop, Acting Director, Law Enforcement Safety and 

Compliance Directorate, U.S. Customs and Border Protection 

LAW ENFORCEMENT SENSITIVE 


2 

 

 

LAW ENFORCEMENT SENSITIVE 

DHS OIG HIGHLIGHTS 

U.S. Customs and Border Protection Compliance with 

Use of Force Policy for Incidents on November 25, 2018 

and January 1, 2019 

$XJXVW , 2020 

Why We Did 

This Inspection 

In response to 

congressional concerns, we 

reviewed CBP’s use of tear 

gas against migrants near 

the San Ysidro, California 

Port of Entry on November 

25, 2018. We also 

reviewed CBP’s use of tear 

gas in a January 1, 2019 

incident near the same port 

of entry. Our objective was 

to examine circumstances 

surrounding the use of 

force in these incidents and 

determine whether CBP 

complied with its use of 

force policy. 

What We 

Recommend 

We made four 

recommendations to CBP 

to ensure compliance with 

its use of force policy and 

improve its investigative 

process. 

For Further Information: 

Contact our Office of Public Affairs at 

(202) 981-6000, or email us at 

DHS-OIG.OfficePublicAffairs@oig.dhs.gov 

What We Found 

U.S. Customs and Border Protection’s (CBP) use of tear gas 

on November 25, 2018 and January 1, 2019, in response to 

physical threats, appeared to be within CBP’s use of force 

policy. However, U.S. Border Patrol did not fully comply with 

CBP policies related to obtaining an acoustic device with an 

“alert tone” mode, as well as required less-lethal device 

training and certification. 

Border Patrol obtained an acoustic device and used it in an 

“alert tone” mode on November 25, 2018, which we 

determined did not conform to CBP’s use of force policy 

because Border Patrol did not get advance authorization to 

have a device with this capability. Using the acoustic device 

in this mode may increase the risk of temporary or 

permanent hearing loss to those exposed to the sound and 

thereby increase the Government’s risk of liability. CBP’s 

own internal investigation of the November 25, 2018 incident 

regarding the acoustic device was incomplete and inaccurate. 

Therefore, CBP did not have all the information it needed to 

determine whether the CBP officer and Border Patrol agents 

involved had complied with the use of force policy. 

In addition, not all Border Patrol agents had the required 

training and certification to carry less-lethal devices. This 

occurred because Border Patrol lacked internal controls to 

ensure agents had fulfilled these requirements. Border Patrol 

agents using less-lethal devices for which they are not 

certified could result in unintended serious injury or death, 

and thereby increases the Government’s risk of liability. 

CBP’s Response 

CBP concurred with all four recommendations and initiated 

actions to address the findings. However, CBP disagrees with 

our characterization of the Office of Professional 

Responsibility’s awareness of the use of the acoustic device. 

www.oig.dhs.gov OIG-20-64 

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LAW ENFORCEMENT SENSITIVE 

OFFICE OF INSPECTOR GENERAL 

Department of Homeland Security 

Table of Contents 

Background .................................................................................................... 1 

Results of Inspection....................................................................................... 3 

CBP’s Use of Tear Gas on November 25, 2018 and January 1, 2019 

Appeared Compliant with Its Use of Force Policy ................................... 4 

Border Patrol Did Not Comply with CBP’s UOF Policy in Obtaining an 

Acoustic Device Used on November 25, 2018 ......................................... 7 

Border Patrol Agents Carried Less-Lethal Devices for Which They Lacked 

Required Certification.......................................................................... 10 

Recommendations......................................................................................... 11 

Management Comments and OIG Analysis .................................................... 12 

Appendixes 

Appendix A: Objective, Scope, and Methodology ................................. 15 

Appendix B: CBP Comments to the Draft Report .................................. 17 

Appendix C: Photos and Descriptions of Less-Lethal Devices .............. 23 

Appendix D: Report Distribution .......................................................... 26 

Abbreviations 

AEL Authorized Equipment List 

CBP U.S. Customs and Border Protection 

LESC Law Enforcement Safety and Compliance Directorate 

OIG Office of Inspector General 

OPR Office of Professional Responsibility 

POE Port of Entry 

UOF use of force 

www.oig.dhs.gov OIG-20-64 

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Department of Homeland Security 

Background 

U.S. Customs and Border Protection (CBP) is responsible for securing the 

Nation’s borders and preventing the illegal entry or exit of persons and goods to 

and from the United States. CBP officers and Border Patrol agents use CBP’s 

Use of Force Policy, Guidelines, and Procedures Handbook (UOF policy) as a 

guide for how force can be used in carrying out their law enforcement duties. 

The policy permits CBP officers and Border Patrol agents to use various 

responses to gain control of a resistant subject. However, the level of force 

used must be reasonable and necessary given the “totality of circumstances.” 

Based on a subject’s level of resistance, CBP authorizes its officers and Border 

Patrol agents to employ a number of techniques to gain control of a subject, 

such as giving spoken commands and physically escorting the individual. In 

specified circumstances, officers and agents may also use deadly force or lesslethal1 means, such as chemicals (e.g., tear gas)2 and impact munitions (e.g., 

pepper ball launching system),3 referred to as less-lethal devices in this report. 

Although CBP’s UOF policy provides guidance and parameters for use of force, 

it does not address tear gas or impact munitions crossing the border into 

Mexico. Use of force must be reasonable and necessary based on the totality of 

circumstances, regardless of geographic location. Appendix C shows some 

less-lethal devices available to CBP officers and Border Patrol agents. 

In October 2018, CBP monitored an expanding group of about 7,000 migrants 

believed to be heading north from Honduras to the United States. According to 

CBP, as the group moved north, it overwhelmed Guatemalan and Mexican 

border security efforts with actions that included tearing down a border gate, 

throwing projectiles, and attempting to discharge weapons at border guards. 

To prepare for the migrants’ arrival, CBP’s San Diego Sector began taking steps 

to fortify border infrastructure, such as adding barbed wire-like concertina wire 

to border fencing and building a dirt berm4 in the Tijuana River channel where 

no fencing existed. According to CBP, these measures were intended to 

mitigate any mass migration attempts by the group’s members to enter the 

United States and to protect both public and law enforcement personnel. 

Figures 1 and 2 show border fencing with concertina wire and the Tijuana 

River channel dirt berm. 

1 Less-lethal force is not likely to cause serious physical injury or death. Less-lethal devices or 

weapons may be used in situations in which lower level techniques are not sufficient to control 

disorderly or violent subjects. 

2 Less-lethal chemical munitions contain either Oleoresin Capsicum, OChlorobenzylidenemalononitrile, or PAVA pepper powder, which are irritants and cause 

discomfort to the individual exposed. These chemical munitions are typically referred to as 

tear gas. 

3 A pepper ball launching system is a less-lethal impact/chemical irritant delivery system 

powered by compressed air. 

4 A berm is a wall or barrier to separate off an area, as shown in figure 2. 

www.oig.dhs.gov 1 OIG-20-64 

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LA\\' ENFORCEMENT SENSITIVE 

OFFICE OF INSPECTOR GENERAL 

Department of Homeland Security 

Figure 1: Border Fencing and 

Concertina Wire 

Source: CBP OPR 

Figure 2: Tijuana River Channel with 

Concertina Wire and Dirt Berm 

Source: CBP OPR 

On November 25, 2018, about 1,000 migrants attempted illegal entry into the 

United States near the San Ysidro, California Port of Entry (POE) in the San 

Diego Sector. On January 1, 2019, a group of about 100 migrants attempted 

to enter the United States illegally west of the San Ysidro, California POE. CBP 

personnel who used less-lethal devices in connection with both incidents 

generally reported they did so to protect themselves or other officers and agents 

from migrants throwing rocks and other projectiles. Less-lethal force included 

using some of the devices identified in appendix C. In both incidents, the wind 

carried the tear gas into Mexico and some of the munitions crossed the border 

and landed in Mexico. Additionally on 

November 25, 2018, according to CBP, 

it intended to employ an acoustic 

device to broadcast spoken 

announcements to deter migrants from 

illegally crossing into the United States. 

However, the device was used in an 

"alert tone," reportedly to deter 

migrants from throwing rocks and 

projectiles.s See figure 3 for an image 

of the acoustic device. CBP's actions 

temporarily stopped the rock and 

projectile throwing, as well as attempts 

to cross the border, and ended when 

Mexican law enforcement arrived. During the November 25 incident, six agents 

reported being hit with rocks and other projectiles. 

s The acoustic device can be used for intelligible, long-range announcements, similar to a 

bullhorn, and with an alert tone. The alert tone produces a loud, piercing sound to gain 

attention or to cause physical discomfort in a target. The device can produce sound pressure 

levels that have the potential to cause temporary or permanent hearing damage. 

www.oig.dhs.gov 2 OIG-20-64 

Figure 3: Image ofthe Acoustic Device 

Source: CBP Special Operations 

Detachment, San Diego Sector 

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OFFICE OF INSPECTOR GENERAL 

Department of Homeland Security 

CBP conducted internal investigations of both incidents in accordance with its 

The Use of Force Incident Guide and a Use of Force Review Board6 determined 

the level of force employed by the CBP officer and Border Patrol agents involved 

in both incidents was consistent with CBP’s UOF policy. CBP also presented 

its two internal investigative reports to the United States Attorney’s Office, 

Southern District of California, which concluded there was no violation of law. 

The use of less-lethal devices in response to rock throwing incidents is not 

unprecedented. Since 2016, CBP reported 74 assaults with rocks and 

projectiles on Border Patrol agents in which agents used less-lethal devices in 

response. Agents were injured in four of those incidents. 

In response to congressional concerns, we reviewed CBP’s use of tear gas 

against migrants near the San Ysidro, California POE on November 25, 2018. 

We also reviewed CBP’s use of tear gas in the January 1, 2019 incident near 

the same POE. Our objective was to examine circumstances surrounding the 

use of force in these incidents and determine whether CBP complied with its 

UOF policy. 

Results of Inspection 

CBP’s use of tear gas on November 25, 2018 and January 1, 2019, in response 

to physical threats, appeared to be within CBP’s UOF policy. However, U.S. 

Border Patrol did not fully comply with CBP policies related to obtaining an 

acoustic device with an “alert tone” mode, as well as required less-lethal device 

training and certification. 

U.S Border Patrol obtained an acoustic device and used it in an “alert tone” 

mode on November 25, 2018, which we determined did not conform to CBP’s 

use of force policy because Border Patrol did not get advance authorization to 

have a device with this capability. Using the acoustic device in this mode may 

increase the risk of temporary or permanent hearing loss to those exposed to 

the sound and thereby increase the Government’s risk of liability. CBP’s own 

internal investigation of the November 25, 2018 incident regarding the acoustic 

device was incomplete and inaccurate. Therefore, CBP did not have the 

information it needed to determine whether the CBP officer and Border Patrol 

agents involved had complied with the UOF policy. 

In addition, not all Border Patrol agents had the required training and 

certification to carry less-lethal devices. This occurred because Border Patrol 

6

 Use of Force Review Boards review UOF investigative reports and presentations, and vote to 

determine if force was consistent with CBP UOF policy. Additionally they may make 

recommendations concerning tactics, training, and equipment and refer potential misconduct 

and administrative violations to the Office of Internal Affairs. 

www.oig.dhs.gov 3 OIG-20-64 

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Department of Homeland Security 

lacked internal controls to ensure agents had fulfilled these requirements. 

Border Patrol agents using less-lethal devices for which they are not certified 

could result in unintended serious injury or death, and thereby increases the 

Government’s risk of liability. 

CBP’s Use of Tear Gas on November 25, 2018 and January 1, 

2019 Appeared Compliant with Its Use of Force Policy 

Given the totality of circumstances surrounding both incidents and the 

evidence we reviewed, we determined CBP’s use of tear gas on November 25, 

2018 and January 1, 2019 appeared to be within CBP’s UOF policy. We based 

our determination on incident statements from Border Patrol agents and a CBP 

officer, investigative reports from CBP’s Office of Professional Responsibility 

(OPR), and audio and video recordings from both incidents. The UOF policy 

requires officers’ and Border Patrol agents’ use of force to be “objectively 

reasonable” given the “totality of circumstances.” Specifically, the level of force 

applied must reflect all circumstances surrounding the situation, including the 

presence of “imminent danger” to CBP officers and Border Patrol agents or 

others. According to the UOF policy, the totality of circumstances includes, 

but is not limited to, the following factors: training, age, size, strength of the 

individual officer or Border Patrol agent compared to the subject; weapons 

involved; and presence of other officers, subjects, or bystanders. Finally, 

although not prohibited, according to the UOF policy, CBP officers and Border 

Patrol agents should consider alternatives to using chemical and impact 

munitions on small children, pregnant women, and the elderly. In a 2013 

study, the Police Executive Research Forum7 recommended CBP use less-lethal 

devices to de-escalate and avoid use of deadly force during rock throwing 

assaults. 

The November 25, 2018 incident involved multiple groups totaling more than 

1,000 migrants. The groups attempted to make entry into the United States at 

various locations along a 3-mile span of the international border fence on 

either side of the POE. For example, one group of about 100 migrants 

attempted illegal entry into the United States through the southbound San 

Ysidro POE vehicle lanes. While still in Mexico, Mexican authorities turned the 

group away. According to CBP, about 20 CBP officers and 80 Border Patrol 

agents worked to control the situation at these multiple locations. 

7 The Police Executive Research Forum is an independent research organization focused on 

critical policing issues. The forum has identified best practices on fundamental issues such as 

reducing police use of force, developing community policing and problem-oriented policing, 

using technologies to deliver police services to the community, and evaluating crime reduction 

strategies. CBP commissioned the Forum to conduct a review of the use of force by CBP 

officers and agents resulting in the referenced study. 

www.oig.dhs.gov 4 OIG-20-64 

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OFFICE OF INSPECTOR GENERAL 

Department of Homeland Security 

In incident statements, Border Patrol 

agents generally indicated that migrants 

began making verbal threats and 

throwing rocks at them, while damaging 

fencing and the dirt berm in the Tijuana 

River channel. Six Border Patrol agents 

reported individuals in Mexico were 

throwing rocks at CBP personnel while 

hiding behind members of the media. 

Figure 4 is a photo of a rock being 

thrown from Mexico toward Border 

Patrol agents on November 25, 2018. 

One CBP officer and 39 Border Patrol agents responded multiple times with 

various less-lethal devices, such as those shown in appendix C, reportedly to 

protect either themselves or other CBP officers and Border Patrol agents. See 

figure 5 for a map of the November 25, 2018 incident and the approximate 

locations where the CBP officer and Border Patrol agents responded with lesslethal devices. 

Figure 4: Rock Being Thrown at 

Border Patrol Agents 

Source: CBP OPR 

Figure 5: Map of November 25, 2018 Incident 

Source: CBP OPR and Office of Inspector General (OIG) markings 

In incident reports, CBP personnel generally cited several concerns about the 

November incident. The CBP officer and Border Patrol agents described 

apprehension about the large number of migrants compared to the number of 

CBP personnel at the scene. In addition, they were fearful about the likelihood 

of more assaults on officers and agents and potential injuries to migrants if 

large numbers of them forced their way through the infrastructure and came 

into physical contact with CBP personnel. Finally, the Border Patrol incident 

commander expressed concern about the close proximity of a shopping mall to 

the southern border and the potential danger to the public. 

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LA\\' ENFORCEMENT SENSITIVE 

OFFICE OF INSPECTOR GENERAL 

Department of Homeland Security 

The November 25, 2018 incident lasted for approximately 3 hours until 

Mexican law enforcement dispersed the multiple groups on the southern side of 

the border. Six agents reported being hit with rocks or other projectiles, and 

one agent was diagnosed with a serious injury resulting in temporary total 

disability preventing him from working. As of July 10, 2019, he remained in 

limited work status. Additionally, a CBP vehicle window was broken by a rock. 

On January 1, 2019, two similar incidents 

occurred at the same location, at two separate 

times between approximately 1:45 am and 2:45 

am. In the first incident, CBP estimated 100 

migrants were congregating in a large open space 

overlooking the international boundary fence 

approximately 5 miles west of the San Ysidro, 

California POE. The second incident involved 

approximately 45 migrants congregating in the 

same location. In incident statements, Border 

Patrol agents said individuals, including young 

children, were being lowered over the 

international boundary fence into the United 

States near concertina wire. According to CBP, 

Border Patrol agents instructed the migrants to 

move away from the fence, but instead they moved 

toward it and began illegally crossing into the United States. Figure 6 shows a 

Figure 6 : Migrant Being 

Lowered over Border Fence 

Source: CBP OPR 

person being lowered over the border fence on January 1, 2019. In both 

incidents, Border Patrol agents reportedly deployed smoke devicess 

While some members of the migrant 

group dispersed, others began throwing rocks across the border at the agents. 

According to CBP, it requested assistance from Mexican law enforcement 

officials who said they were unavailable because of increased activity in 

Tijuana, Mexico, due to the New Year's Eve holiday. 

According to CBP, 20 Border Patrol agents responded collectively to the 

January 1, 2019 incidents. Twelve Border Patrol agents responded with a 

variety of less-lethal devices, dispersing the groups. No agents reported being 

hit with rocks or other projectiles. See figure 7 for a map of the January 1, 

2019 incidents and the approximate location where agents responded with 

less-lethal devices. (Figure 1 is a close-up view of the border fence and 

concertina wire near the location of the January 1, 2019 incidents.) 

a Smoke does not contain tear gas and when 

www.oig.dhs.gov 6 OIG-20-64 

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LAW ENFORCEMENT SENSITIVE 

OFFICE OF INSPECTOR GENERAL 

Department of Homeland Security 

Figure 7: Map of the January 1, 2019 Incident 

Source: CBP OPR and OIG markings 

Given the totality of circumstances on November 25, 2018 and January 1, 

2019, and the evidence we reviewed (i.e., incident statements from the CBP 

officer and Border Patrol agents, OPR investigative reports, and audio and 

video footage), we did not find circumstances inconsistent with CBP’s UOF 

policy. CBP’s use of tear gas and other authorized less-lethal devices may have 

contributed to the de-escalation of the dangerous situations, preventing further 

injuries to officers and Border Patrol agents, avoiding serious injuries to 

migrants, and possibly avoiding the use of deadly force. In its request for this 

review, Congress also expressed concerns about children being in the areas 

where tear gas was used. By reviewing available video9 and statements of the 

CBP officer and Border Patrol agents present, we determined that, where tear 

gas was used, the groups were predominantly adult males and CBP did not 

specifically target children. 

Border Patrol Did Not Comply with CBP’s UOF Policy in 

Obtaining an Acoustic Device Used on November 25, 2018 

Border Patrol obtained an acoustic device and used it in an “alert tone” mode 

on November 25, 2018, which we determined did not conform to CBP’s use of 

force policy because Border Patrol did not get advance authorization to have a 

device with this capability. According to CBP, the alert tone was used to deter 

migrants from throwing rocks and projectiles. Using the acoustic device in this 

mode may increase the risk of temporary or permanent hearing loss to those 

exposed to the sound and thereby increase the Government’s risk of liability. 

CBP’s own internal investigation of the November 25, 2018 incident regarding 

the acoustic device was incomplete and inaccurate. Therefore, CBP did not 

have all the information it needed to determine whether the CBP officer and 

9 The limited video evidence of the incidents on November 25, 2018, and January 1, 2019, was 

often grainy, did not always include audio, and did not cover all instances of UOF. 

www.oig.dhs.gov 7 OIG-20-64 

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Department of Homeland Security 

Border Patrol agents involved had complied with the use of force policy when 

using an acoustic device. 

Border Patrol Obtained an Acoustic Device with an Unauthorized 

Capability 

According to CBP’s UOF policy, CBP officers and Border Patrol agents are only 

permitted to carry equipment and devices on its Authorized Equipment List 

(AEL). The AEL identifies the law enforcement equipment and devices CBP’s 

Law Enforcement Safety and Compliance Directorate (LESC) has tested, 

evaluated, and determined to be suitable for deployment. According to CBP, 

using weapons not on the AEL is strictly prohibited without written approval 

from the executive director of LESC. 

We concluded from audio evidence that, on November 25, 2018, Border Patrol 

agents used an acoustic device in alert tone mode,10 even though LESC had 

previously established that using the device in this mode was an unauthorized 

use of force due to its limited effectiveness and risk of hearing loss. Because of 

LESC’s determination, the acoustic device is not on CBP’s AEL and its use in 

alert tone mode does not comply with the component’s UOF policy. In addition 

to similarly warning of acoustic exposure limits and the potential for hearing 

loss, the manufacturer’s documentation also recommends operators of the 

acoustic device follow specific rules of engagement that consider these risks. 

Although CBP’s UOF policy would have permitted use of the alert tone in a 

manner reasonable and necessary for self-defense or the defense of another 

person in threatening, emergent situations, 11 CBP’s use of force policy does 

not authorize the carrying of any weapon for duty use that is not authorized 

and listed on the AEL or specifically approved by the director of LESC. 

Had CBP followed its UOF policy, the acoustic device with the alert tone 

capability would not have been carried or used. 

Two factors enabled CBP to obtain the acoustic device with the unauthorized 

capability. First, San Diego Sector Border Patrol did not consult LESC before 

obtaining the device and subsequently using it in alert tone mode. On 

November 15, 2018, the sector borrowed the acoustic device from the 

manufacturer to use for demonstration and testing in preparation for the 

migrant group’s arrival. According to a San Diego Sector official, the device 

10 The alert tone produces a loud, piercing sound to gain attention or to cause physical
 

discomfort in a target. 

11 CBP’s UOF policy permits officers and agents to use any available weapon in a manner that 

is reasonable and necessary for self-defense or the defense of another person in threatening, 

emergent situations.
 

www.oig.dhs.gov 8 OIG-20-64 

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OFFICE OF INSPECTOR GENERAL 

Department of Homeland Security 

was to be used to gain attention and clearly communicate messages to a large 

group of people. 

The official also said the sector was unaware that use of the acoustic device in 

alert tone mode was not authorized. Second, LESC did not formally 

communicate to CBP stakeholders it had determined the acoustic device, when 

used in alert tone mode, was unauthorized for use by CBP. 

CBP San Diego Sector Border Patrol should have consulted LESC prior to 

obtaining and using the device. Although San Diego Sector Border Patrol may 

have intended to use the acoustic device only for communicating messages, it 

would have been prudent to coordinate with LESC given the warnings in the 

manufacturer’s documentation. Operating the acoustic device in the 

potentially harmful alert tone mode increased the risk of unintended injury and 

thereby increased the Government’s risk of liability. 

OPR’s Internal Investigation on Use of the Acoustic Device Was Inaccurate 

and Incomplete 

CBP’s The Use of Force Incident Guide includes procedures for investigating use 

of force incidents. Such incidents are examined to determine whether CBP 

officer and Border Patrol agent actions comply with policy. Review results are 

presented in an investigative report to a CBP Use of Force Review Board. The 

guide requires the investigative report presented to the board to be thorough, 

factual, and objective. CBP OPR conducted an investigation of the November 

25, 2018 incident and presented its report to a Use of Force Review Board on 

December 12, 2018. The board determined that the CBP officer and Border 

Patrol agents involved had complied with CBP’s UOF policy. 

We determined the CBP OPR investigative report for the November 25, 2018 

incident was inaccurate regarding use of the acoustic device. Specifically, OPR 

was aware the acoustic device was used in alert tone mode, but did not report 

it as a use of force. Although the manufacturer’s documentation states the 

device can cause physical discomfort and temporary or permanent hearing 

damage, OPR officials said they were unaware of the device’s capabilities and 

did not consider it a weapon. 

We noted the following instances of inaccuracy and incompleteness, as well as 

inconsistencies between the OPR investigative report and Border Patrol agents’ 

incident statements. For example: 

The investigative report stated the acoustic device was used only in 

“audio function” or “audio mode” although agents did not include such 

information in their statements. 

www.oig.dhs.gov 9 OIG-20-64 

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LAW ENFORCEMENT SENSITIVE 

OFFICE OF INSPECTOR GENERAL 

Department of Homeland Security 

x OPR’s summaries of CBP’s November 25, 2018 radio transmissions had 

gaps and did not document Border Patrol discussions about the use of 

the acoustic device or the presence of the alert tone. 

x OPR received video files of the November 25, 2018 incident, but the 

investigative report did not contain an analysis of the video files, one of 

which contained audio of the acoustic device in alert tone mode. 

x The Use of Force Review Board’s executive summary report indicated the 

acoustic device was used for “audio only as a public address system,” 

although OPR had radio transmission and video evidence that the device 

was used in alert tone mode. 

According to OPR, these inaccuracies were due to errors. We believe these 

issues occurred because OPR did not fully investigate the use of the acoustic 

device and did not ensure the investigative report was accurate and complete 

based on the evidence obtained. 

Due to the shortcomings of the investigative report, the Use of Force Review 

Board did not have all the information it needed before determining CBP 

officers and Border Patrol agents complied with CBP’s UOF policy during the 

November 25, 2018 incident. OPR reopened the investigation once informed of 

our findings regarding CBP’s use of the acoustic device and the OPR 

investigative report. We referred these issues to the DHS OIG Office of 

Investigations for review, at which time OPR was directed by DHS OIG to cease 

investigative activity. Although we determined that Border Patrol did not 

comply with CBP’s UOF policy in obtaining the acoustic device used on 

November 25, 2018, our internal investigations did not substantiate criminal 

wrongdoing or result in judicial action. 

Border Patrol Agents Carried Less-Lethal Devices for Which 

They Lacked Required Certification 

According to CBP’s UOF policy, CBP officers and Border Patrol agents must 

maintain and annually demonstrate an acceptable level of proficiency in the 

use of less-lethal devices. CBP officers and Border Patrol agents are prohibited 

from carrying any less-lethal device until they have successfully completed 

training and received certification for its use. Nonetheless, in emergency 

situations, CBP UOF policy permits using any available weapon “in a manner 

that is reasonable and necessary for self-defense or the defense of another 

person.” 

We determined some Border Patrol agents were carrying less-lethal devices 

although they had not fulfilled training and certification requirements. For 

example, 8 of 12 Border Patrol agents who used less-lethal devices on January 

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Department of Homeland Security 

1, 2019 were not certified for the less-lethal devices they were carrying before 

the incidents. According to a San Diego Sector Special Operations Detachment 

official, during Operation Secure Line12 they gave their agents unrestricted 

access to less-lethal devices without first verifying agents were certified to use 

them and did not maintain records indicating when and where less-lethal 

devices were issued to agents. As a result, Border Patrol violated the UOF 

policy by permitting agents to carry less-lethal devices they were not trained 

and certified to use. Given the emergency situation on January 1, 2019, use of 

the devices was not a violation of policy, but uncertified agents carrying the 

devices before and after the actual incident was an infraction. 

In another example, two uncertified agents in the San Diego Sector were able to 

check out less-lethal devices from their station at the beginning of their shift. 

According to Border Patrol, this was due to a communication problem in the 

information system used to verify certifications and issue equipment. The 

system did not notify the supervisors that the agents were not certified to use 

the less-lethal devices they were checking out. Border Patrol officials said the 

system was not configured correctly for four of eight San Diego Sector Border 

Patrol stations. Therefore, supervisors were unable to properly verify 

certifications prior to issuing devices. Although these specific agents did not 

use the less-lethal devices on January 1, 2019, carrying devices for which they 

were not certified constituted a violation of CBP’s UOF policy. Although UOF 

policy allows for use of such devices in emergency situations, use by 

uncertified agents could pose the risk of unintended serious injury or death 

and thereby increase the Government’s risk of liability. San Diego Sector 

Border Patrol provided support that it corrected the system’s communication 

problem on May 13, 2019. 

Recommendations 

Recommendation 1: We recommend the Chief, U.S. Border Patrol ensure 

Border Patrol follows existing policy requiring consultation with LESC before 

conducting demonstrations or testing devices not on the CBP Authorized 

Equipment List if they are intended to be directed at or on an individual or a 

group. 

Recommendation 2: We recommend the Chief, U.S. Border Patrol implement 

controls to ensure San Diego Sector’s Special Operations Detachment issues 

equipment only to certified individuals and retains issuance records. 

12 CBP initiated Operation Secure Line to prepare for the mass migration in the San Diego 

Sector Area of Responsibility associated with the two incidents discussed in this report. 

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Recommendation 3: We recommend the Director, Law Enforcement Safety 

and Compliance Directorate, ensure CBP stakeholders are formally notified of 

the requirement to consult LESC prior to acquiring, purchasing, borrowing, or 

utilizing any item marketed with capabilities intended to modify the behavior or 

compel compliance of an individual or group with pain or discomfort. 

Recommendation 4: We recommend the Assistant Commissioner, Office of 

Professional Responsibility, use the findings and deficiencies noted regarding 

the investigation, reporting, and review of the November 25, 2018 use of force 

incident for training and education to improve the overall quality of The Use of 

Force Incident Guide products, as well as the efficacy of Use of Force Review 

Board proceedings. 

Management Comments and OIG Analysis 

CBP provided its written response to the report on June 26, 2020. CBP 

concurred with all four recommendations and provided corrective action plans 

and completion dates, as required. CBP maintained that, in light of the threat 

created by the unprecedented surge of individuals attempting illegal entry 

during the incidents in question, Border Patrol agents responded reasonably 

and within their statutory authority, including with respect to use of force. 

CBP stated the collective response contributed to de-escalation and prevented 

injury to all involved. 

CBP disagreed with the OIG’s characterization of OPR’s awareness of the use of 

the acoustic device. CBP acknowledged OPR was aware of use of the acoustic 

device as a public address system. However, according to CBP, at the time of 

its investigation, OPR was not aware of the capability for, or use of, the device 

in alert tone. 

When our inspection team met with individuals from OPR, they told us they 

knew the acoustic device was used in alert tone mode, but did not report it as a 

use of force. In our meeting, OPR officials indicated they did not believe the 

alert tone was a use of force, and attributed the inconsistencies we found in 

their investigation to errors resulting from OPR’s lack of understanding of the 

device’s functionality. 

We received technical comments on the draft report and revised the report as 

appropriate. Appendix B contains CBP’s management comments in their 

entirety. We consider recommendations 1, 3, and 4 resolved and open, and 

recommendation 2 closed. The following is a summary of CBP’s responses and 

our analysis. 

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CBP response to Recommendation 1: Concur. Border Patrol will issue 

clarifying guidance specifically related to UOF policy during exigent situations. 

The guidance will address training and proficiency requirements, as well as 

ensuring all equipment used is on the AEL and any equipment not on the list is 

coordinated through LESC for proper testing, evaluation, approval, 

procurement, and implementation as use of force equipment. The estimated 

completion date is August 28, 2020. 

OIG Analysis of CBP’s Response: Border Patrol’s actions satisfy the intent of 

this recommendation. We consider this recommendation resolved and open 

until Border Patrol provides support for the corrective actions taken. 

CBP response to Recommendation 2: Concur. Border Patrol San Diego 

Sector mandates that all stations, including the Special Operations 

Detachment, daily use the Issue Room application in the Shared Web 

Application Portal to check out equipment, including that in its weapon 

armory. San Diego Sector will also ensure supervisors maintain such records 

in CBP’s official system of record, the Firearms Armor and Credential Tracking 

System. Additionally, to ensure proper certification, any agents detailed to the 

San Diego Sector Special Operations Detachment will be required to present a 

hard copy of their current less-lethal device certifications prior to issuance of 

any less-lethal devices. CBP requested that OIG consider this recommendation 

resolved and closed based on supporting documentation previously provided. 

OIG Analysis of CBP’s Response: Border Patrol San Diego Sector’s corrective 

actions satisfy the intent of the recommendation. We reviewed the actions 

described in CBP’s response and the San Diego Sector’s equipment issuance 

documentation. We consider this information sufficient to resolve and close 

the recommendation. 

CBP response to Recommendation 3: Concur. In August 2019, LESC issued 

a memorandum, “Testing, Evaluating, Approval, Procurement, and 

Implementation of CBP Use of Force Equipment.” This guidance covers the 

review process for considering specific equipment, clarifies that new equipment 

is not authorized until the LESC makes a determination about it, and describes 

responsibilities of the LESC director and CBP component heads. In addition, 

the LESC will further define use of force equipment for all CBP components as 

any item designed or marketed as a device intended to cause pain or 

discomfort to modify the behavior of an individual or group. The estimated 

completion date is July 31, 2020. 

OIG Analysis of CBP’s Response: LESC’s corrective actions satisfy the intent 

of the recommendation. We consider this recommendation resolved and open 

until LESC provides support for the corrective actions taken. 

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CBP response to Recommendation 4: Concur. In addition to UOF Incident 

Team instruction for new investigators, OPR collaborated with LESC to provide 

up-to-date training, including lessons learned, from these events. OPR will 

ensure training incorporates confirmation of use of force tools used and 

presentation to Use of Force review boards. OPR previously conducted a weeklong working group to identify deficiencies in the UOF Incident Team process, 

and is now preparing recommendations to improve the program. The 

estimated completion date is September 30, 2020. 

OIG Analysis of CBP’s Response: OPR’s corrective actions satisfy the intent of 

the recommendation. We consider this recommendation resolved and open 

until OPR provides support for the corrective actions taken. 

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Appendix A 

Objective, Scope, and Methodology 

The Department of Homeland Security Office of Inspector General was 

established by the Homeland Security Act of 2002 3XEOLF/DZïE\

amendment to the Inspector General Act of 1978. 

Our objective was to examine circumstances surrounding CBP’s use of force 

near the San Ysidro, California POE on November 25, 2018 and January 1, 

2019, and determine whether CBP complied with its UOF policy. We 

conducted this inspection between February 2019 and June 2019. During this 

review, we visited CBP Headquarters in Washington, DC; CBP Law 

Enforcement Safety and Compliance in Harpers Ferry, West Virginia; and CBP 

sector and stations in San Diego, California. 

We interviewed relevant CBP personnel including OPR, Office of Policy, Office of 

Chief Counsel, CBP Foreign Operations San Diego Sector leadership, San Diego 

Sector Intelligence, San Diego Sector Special Operations, and San Diego Sector 

Local Use of Force Review Board. We met with officials from the U.S. 

Department of State regarding its formal response to the Government of 

Mexico. We also interviewed external officials from the acoustic device 

company. In addition, we toured the area involving both use of force incidents 

in San Diego, California during both day and night hours. 

We reviewed and analyzed CBP’s UOF policy, OPR’s investigative reports for 

both incidents, and CBP’s supporting evidence, including OPR’s results of 

findings letter. We examined the San Diego Sector’s Operation Secure Line 

Response Plan; Border Patrol agents’ training certifications on less-lethal 

devices; Border Patrol agents’ incident statements; Use of Force Incident Team 

reports; audio recordings and video footage from November 25, 2018, and 

January 1, 2019; and relevant prior DHS OIG audits and inspections. The 

limited video evidence of the incidents on November 25, 2018 and January 1, 

2019 was often grainy, did not always contain sound, and did not cover all 

UOF incidents. The team was generally unable to identify specific CBP officers 

and Border Patrol agents, but used the video, along with other evidence listed, 

to make its determination. During our inspection, we referred issues to DHS 

OIG Office of Investigations. The investigations were completed on May 13, 

2020. 

We conducted this inspection between February 2019 and June 2019 under 

the authority of the Inspector General Act of 1978, as amended, and according 

to the Quality Standards for Inspection and Evaluation issued by the Council of 

the Inspectors General on Integrity and Efficiency. We believe the evidence 

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obtained provides a reasonable basis for our findings and conclusions based 

upon our inspection objectives. 

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Appendix B 

CBP Comments to the Draft Report 

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Appendix C 

Photos and Descriptions of Less-Lethal Devices 

Oleoresin Capsicum Spray – A short-range less-lethal device capable 

of delivering 20 to 25 short bursts of chemical irritant at a range of 10 

to 12 feet. 

FN303 Compressed Air Launcher – Less-lethal 

impact/chemical irritant delivery system 

powered by compressed air capable of delivering 

a variety of projectiles, including PAVA powder 

projectiles. The removable magazine holds 15 

.68 caliber projectiles. Authorized for less-lethal 

use at ranges between 10 and 225 feet. 

Pepper Ball Launching System – Less-lethal 

impact/chemical irritant delivery system powered 

by compressed air capable of delivering a variety 

of projectiles, such as PAVA powder projectiles. 

The removable “hopper” holds about 180 

projectiles and can fire 10–12 projectiles per 

second. Authorized for less-lethal use at ranges 

between 3 and 150 feet. 

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Riot Control Grenade – A high volume, continuous discharge 

grenade designed for outdoor use in crowd control situations. Once 

activated, the device expels chemical irritant for about 20–40 

seconds. 

Triple Chaser Grenade – A fast burning, medium volume canister 

designed for outdoor use in crowd control situations. It contains 

three separate canisters with separating charges between each 

section. When activated, the grenade will separate into three 

distinct sub-munitions about 20 feet apart, which expel chemical 

irritant for about 20 to 30 seconds. 

Pocket Tactical Grenade – A quick burning, smaller volume, 

continuous discharge grenade that produces less chemical irritant 

than the Riot Control or Triple Chaser grenades. 

SAF-Smoke Grenade – A high volume, quick burning continuous 

discharge grenade that can be used for concealing the movement of 

agency personnel or as a carrying agent/multiplier for smaller 

chemical munitions. 

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Stinger Grenade – Used as a crowd management tool in both 

indoor and outdoor environments, the Stinger is capable of 

projecting 25 .60 caliber rubber balls within a 50-foot radius. The 

Stinger may also disperse chemical munitions, such as Oleoresin 

Capsicum powder. 

40MM Munitions Launcher – Less-lethal specialty 

impact/chemical munition delivery system 

designed to deliver an impact, chemical, or 

combination projectile with more accuracy, higher 

velocity, and longer range than the hand thrown 

versions of the projectiles. 

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Appendix D 

Report Distribution 

Department of Homeland Security 

Secretary 

Deputy Secretary 

Chief of Staff 

Deputy Chiefs of Staff 

General Counsel 

Executive Secretary 

Director, GAO/OIG Liaison Office 

Assistant Secretary for Office of Strategy, Policy, and Plans 

Assistant Secretary for Office of Public Affairs 

Assistant Secretary for Office of Legislative Affairs 

DHS Component Liaison 

Office of Management and Budget 

Chief, Homeland Security Branch 

DHS OIG Budget Examiner 

Congress 

Congressional Oversight and Appropriations Committees 

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ADDITIONAL INFORMATION AND COPIES 

To view this and any of our other reports, please visit our website at: 

www.oig.dhs.gov. 

For further information or questions, please contact Office of Inspector General 

Public Affairs at: DHS-OIG.OfficePublicAffairs@oig.dhs.gov. 

Follow us on Twitter at: @dhsoig. 

OIG HOTLINE 

To report fraud, waste, or abuse, visit our website at www.oig.dhs.gov and click 

on the red "Hotline" tab. If you cannot access our website, call our hotline at 

(800) 323-8603, fax our hotline at (202) 254-4297, or write to us at: 

Department of Homeland Security 

Office of Inspector General, Mail Stop 0305 

Attention: Hotline 

245 Murray Drive, SW 

Washington, DC 20528-0305

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