ICE’s Deadly Force Problem: A Culture of Impunity
by Jo Ellen Nott
To no one’s surprise, Immigration and Customs Enforcement (“ICE”) documents about use of force incidents over the six years from 2015 to 2021 were not readily available to the public. ICE leans heavily on the nine exemptions provided by the Freedom of Information Act to keep its doings out of the public eye.
Only after litigation by journalists from Business Insider, The Trace, and Type Investigations were public records released that show ICE’s excessive use of force and a pattern of deadly shootings with little to no accountability. Despite its peaceful mission of immigration and customs enforcement, ICE has a history of lethal force, with at least 23 people killed and 24 injured in 59 shootings between 2015 and 2021.
The records show that ICE officers have used deadly force in a variety of circumstances, including car chases and public spaces. The Trace documented the following incidents when ICE officers have discharged their weapons and endangered the public: “9 in parking lots; 15 in traffic intersections or public spaces; 20 at vehicles, including chases; 11 by off-duty officers and 15 times involving unarmed victims.”
In many cases, the agency failed to conduct thorough investigations or hold officers accountable for their actions. ICE’s lack of transparency and accountability make it difficult to determine the full extent of its use-of-force problem. A major factor standing in the way of accountability is the agency’s practice of outsourcing investigations to local law enforcement. Often, these investigations are never completed, or the results are not made public. Additionally, the Department of Homeland Security, ICE’s parent agency, has failed to provide adequate oversight.
The released documents also reveal that ICE’s use-of-force policies may be inadequate. For example, the agency’s policy prohibits shooting to disable a moving vehicle, yet The Trace found many instances where officers have used deadly force in car chases. Additionally, the agency’s emphasis on “law and order” has created a culture where officers feel justified in using excessive force.
The lack of accountability for ICE’s deadly force has serious consequences for victims and their families. While the Bivens Act allows individuals to sue federal agents for civil rights violations, it has been interpreted narrowly by the Supreme Court, making it difficult to hold ICE officers accountable.
The Supreme Court stated in Egbert v. Boule, 596 U.S. 482 (2022), that “it will not create a new cause of action if there exists any remedy at all elsewhere.” In Egbert, the Court ruled that a complaint form that citizens can fill out when their rights have been violated by Border Patrol agents was enough of a remedy under the Bivens Act. In her dissent, Justice Sonia Sotomayor was sharply critical, writing that, “The majority’s holding is clearly ridiculous…. No case will ever be ‘close enough’ (to the original Bivens’ circumstances) to satisfy the bar being set here.” Consequently, accountability for ICE’s use of excessive force remains just out of reach.
Sources: TechDirt, The Trace, U.S. Department of Health and Human Services
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