Oversight Agency Says DHS Needs To Stop Screwing Around And Accurately Track Use Of Force By Officers

There are no incentives in place to encourage accurate reporting of force deployment by law enforcement agencies. Tracking use of force means agencies are basically generating evidence for civil rights lawsuits. That’s why force reporting is, at best, inconsistent.

At its worst, it’s simply dishonest. The lack of solid deterrents means agencies simply won’t generate this data, lest it be used against them at some point in time. Policy changes rarely change anything, since they’re almost always unmoored from any substantial form of punishment.

Sure, a few outliers might make a genuine effort to accurately report these numbers, but there’s no concerted or consistent effort being made by the vast majority of agencies affected by reforms, directives, policy changes, etc. that supposedly mandate accurate reporting on force deployment.

So, this report [PDF] from the Government Accountability Office (GAO) reflects more of the same status quo. Directives and recommendations have been handed out for years, including more recent reform efforts mean to limit excessive force deployment. But no one’s actually making anyone comply. That’s how we end up with this:

On May 25, 2022, Executive Order 14,074 required the heads of federal law enforcement agencies, including DHS, to ensure their agencies’ use of force policies reflect principles of valuing and preserving human life and meet or exceed DOJ’s use of force policy.

[…]

While DHS requires the four agencies GAO reviewed to submit data on uses of force, the data submitted to DHS undercount the frequency that officers used force against subjects. For example, agencies sometimes submitted data to DHS that counted multiple reportable uses of force as a single “incident.”

To be sure, the cops (federal or not) brought this upon themselves. Two solid years of protests against police violence (provoked by the murder of George Floyd by Minneapolis police officer Derek Chauvin) forced the new presidential administration to roll back directives installed by its predecessor — someone who chose to believe it was the policed who were the actual problem.

Following high-profile deaths during law enforcement encounters and the subsequent public demonstrations in the summer of 2020, as well as events at the southern border in September 2021, the President signed an executive order on May 25, 2022, that addressed issues related to the use of force in federal law enforcement. The executive order noted the importance of strengthening trust between law enforcement officers and the communities they serve, as well as ensuring the criminal justice system serves and protects all people equally.

Well, you can’t rebuild trust if you’re unwilling to report force deployment accurately. And so, it appears DHS entities have a long way to go if they’re going to hold themselves up as examples worthy of being emulated.

The four agencies investigated by the GAO are no one’s idea of trustworthy. The CBP and ICE spent four years under Donald Trump erasing whatever goodwill they might have built up prior to his election. The Federal Protective Service flew under the radar until it was deployed to Portland, Oregon, where it promptly began brutalizing protesters, vanishing people off the street, and ignoring multiple court orders telling it to stop doing all of the above. And as for the US Secret Service, it’s never violated rights en masse, but it’s definitely home to multiple, still-unaddressed problems that range from moral turpitude to blatant obstruction.

The GAO’s previous examination led to a handful of recommendations. But despite having months (and all the money in taxpayers’ wallets) to do so, more than half of these DHS components had failed to anything more than promise to try to try.

As of February 2023, DHS had addressed our recommendation to develop standards for its agencies about what types of use of force should be reported but had not fully addressed the others. For example, it established a working group to oversee data collection, but that group had not yet developed monitoring mechanisms to ensure that reporting information is consistent and complete.

We also recommended that ICE and Secret Service modify their policies to ensure officials document the determinations of whether officers’ uses of force were within policy. As of February 2023, Secret Service had addressed GAO’s recommendation by issuing a new policy to document determinations, but ICE had not yet done so.

From what’s included in the report, it appears most of the agencies believed that mandates for use-of-force tracking meant they should do things like engage in more firearms certification, improve proficiency in less-lethal force deployment, say something nice about de-escalation for four hours a year, and avoid any discussion about implicit bias. Very little of the post-Executive Order efforts appear to actually be aimed at addressing the problem the EO was trying to address, i.e. abusive acts by federal officers.

Use-of-force reporting mandates are all over the place. Some federal officers are required to at least verbally report force deployment by the end of their shifts. ICE officers are required to “verbally” report this information within an hour of its occurrence. As for the permanent record, written reports are required anywhere from “by the end of shift” to 72 hours after the incident.

Because standards are inconsistent across DHS components and agencies/officers are rarely interested in accurately reporting their possible rights violations, the reported totals can’t be trusted.

Here’s how the Federal Protective Service (FPS) serves itself by under-reporting force deployment:

We found that officers sometimes report multiple uses of force in one report. For example, during demonstrations in Portland, Oregon, in February 2021, some individual officers used force multiple times during the course of an evening, but reported these uses to FPS on a single reporting form. In one case, over the course of 30 minutes, one officer deployed his less-lethal weapon three separate times, each time hitting a different individual. The officer reported these three uses of force to FPS in one report.

CBP does the same thing:

CBP data show that more than 1,700 use of force incidents occurred across the 2021-2022 fiscal year period. Of these, 291 incidents involved multiple officers using force, and 216 involved use of force against multiple subjects. For instance, in one encounter with migrants at the U.S. border, four officers reported using force on a group of 62 subjects. CBP recorded these uses of force as one incident.

Obviously, things need to change. The GAO (again) issues more recommendations, including additional reporting training for officers who are either unaware of the reporting requirements or simply choose to ignore them.

The problem is the GAO can’t actually make anyone in the government punish anyone else in the government for breaking the rules. So, it’s up to the DHS to do this. And if it won’t, it’s up to Congress. But if this has been a problem for years and recent social unrest has failed to move the dial, the obvious conclusion is that no one who can actually do anything about this wants to do anything about this.