A Customs and Border Protection (CBP) officer in Detroit faced retaliation for a protected disclosure of wrongdoing last year, according to a recent Department of Homeland Security (DHS) Office of Inspector General (OIG) report.
The officer raised concerns that his colleagues were violating Fourth Amendment protections against unreasonable searches and seizures by stopping drivers who had turned down the street to the Canadian border by mistake. The officer claimed when drivers realized their mistake and turned around to avoid leaving the United States, his colleagues would chase them down, stop them, and subject them to a search. The officer also alleged some of his fellow Detroit CBP coworkers were engaging in racial profiling by specifically targeting black drivers.
When a supervisor learned of the officer’s intention to call CBP’s Office of Chief Counsel (OCC) to report his concerns, the supervisor ordered the officer not to call. The officer disobeyed and called in May 2016, but he was never put through to the OCC attorney responsible for his region. The attorney did not call the officer back, but instead called a supervisor to report the officer’s “unprofessional” behavior on the phone with his legal assistant. When the OCC attorney asked if the Detroit Port still needed legal counsel, the supervisor said no and the officer’s concerns remained unreported.
The supervisor who ordered the officer not to call wrote a memo reporting the officer’s actions, and in August 2016 the officer received a Letter of Reprimand charging him with “insubordination and unprofessional conduct.” Letters of reprimand are considered disciplinary action and can be used to justify further disciplinary action up to 18 months after they are issued.
The DHS OIG found that the supervisor retaliated against the officer for his disclosures of potential wrongdoing, which includes allegations where there is a reasonable belief that there has been a violation of law or abuse of authority. A week after receiving the reprimand the officer filed a complaint with the DHS OIG.
The DHS OIG investigated and concluded that the officer’s complaints were protected disclosures and that the disciplinary action taken against him was retaliation. While the OIG was investigating the reprisal case, the officer and CBP reached a settlement rescinding the letter of reprimand and sending the supervisor to professionalism training.
The DHS OIG report is silent on whether CBP or the DHS OIG investigated the officer’s original disclosures of potential Fourth Amendment violations and racial profiling. At time of print, neither office had returned the Project On Government Oversight’s request for comment on the status or existence of such an investigation.
There are heightened civil liberties concerns at U.S. borders. It is well established that Fourth Amendment protections against unreasonable searches are less strict at U.S. borders and at any fixed CBP checkpoint set up within the 100-mile zone as officers at those locations do not need probable cause to search vehicles and question drivers about their immigration status. Additionally, in 2014 the Department of Justice issued a new guidance for federal law enforcement to curtail racial profiling, but a footnote explicitly exempted CBP from these rules: “this Guidance does not apply to activities in the vicinity of the border, or to protective, inspection, or screening activities.”
Chris Rickerd, a policy counsel with the American Civil Liberties Union’s (ACLU) National Political Advocacy Department told POGO, despite the fact that "border patrol has extraordinary authority to do things they couldn't do as law enforcement elsewhere in the country," people still have rights. The 100-mile zone "is not a constitution free zone," he added.
There are plenty of examples of people successfully fighting for their rights in these zones: in 1973, for instance, the Supreme Court ruled in Almeida-Sanchez v. United States (413 U.S. 266) that officers on roving patrol “may search for aliens without a warrant if there is probable cause … But without probable cause, the majority holds the search unreasonable”; in 2013 the ACLU and Northwest Immigrant Rights Project (NWIRP) reached a settlement with the U.S. Border Patrol establishing that Olympic Peninsula agents must base any vehicle stops away from the border on reasonable suspicion that an individual is breaking the law; and as recently as August of this year the 9th Circuit Court of Appeals ruled in Sanchez v. Sessions that seizures based solely on race or ethnicity are illegal.
Even if the whistleblower’s disclosures are investigated, there are challenges in proving these types of claims since Border Patrol agents are only required to report stops that end in an arrest. Law professor Jane Bambauer explained in a 2015 New York Times article that recordkeeping is “critical to accountability.” Without these records, there is no way to evaluate the effectiveness of the stops.
The complaints raised by the officer highlight the ambiguous nature of CBP powers in regards to the Fourth Amendment and the potential for abuse. Is it legal for CBP officers to search without probable cause the cars of drivers who have no intention of crossing the border? What criteria is used by officers when deciding to pull drivers over?
Five days after President Trump was inaugurated, he issued an Executive Order mandating that CBP hire 5,000 more agents and take other actions to more aggressively police U.S. borders. Before rubberstamping Trump’s policy direction and authorizing more resources, Congress should take a closer look at concerns raised by the CBP whistleblower and others like him to learn more about the agency’s effectiveness and whether its personnel are taking actions that violate civil liberties and constitutional protections.
POGO initially described the officer as a "Border Patrol Officer" in the first headline for this post. He is actually a "Customs and Border Protection Officer."