After years of public outcry from advocates, victims, and borderland residents, U.S. Customs and Border Protection (CBP) announced a revised vehicle pursuit policy earlier this year. This new policy, which took effect this month after a delay, includes measures that we believe can be important for safeguarding the lives of everyone in our communities. But serious questions remain about the implementation, training, and enforcement of the new policy that will be critical for its success.

Our extensive concerns about CBP’s vehicle pursuit policy reflect a tragically long and growing list of pursuits that have ended in deaths or serious injuries. The ACLU of Texas’ Fatal Encounters tracker has tallied dozens of deaths from CBP vehicle pursuits over the past decade.

In one pursuit near Deming, New Mexico last year, a Border Patrol agent conducted a dangerous and unauthorized maneuver to block the path of a vehicle on the highway. The vehicle being pursued rolled over and burst into flames, killing two and severely injuring eight others.

As one of the Border Patrol agents on the scene of the crash callously put it, “They were all thrown everywhere, bro.”

Several deadly pursuits have also taken place in Texas. In January 2020, a Border Patrol chase resulted in a fatal crash near downtown El Paso and in June that same year, another Border Patrol vehicle pursuit led to a crash, killing several people in the same location.

In the vast majority of these vehicle pursuit cases, the risk taken and harm caused by the pursuit is completely out of proportion with any suspected criminal activity.

While the revisions to CBP’s vehicle pursuit policy represent a significant improvement and an important step forward for our border communities, history suggests that robust training, oversight, and accountability will be essential to ensure compliance with this new policy.

Rebekah Zemansky / Shuttterstock.com

A critical change in the revised policy is the adoption of an “objective reasonableness” standard, meaning agents will have to consider the actual need to apprehend someone as well as the potential risk not only to the public and law enforcement but also to the occupants of the subject vehicle.

Officers and agents must now consider the government’s interest in immediately apprehending an individual, including the severity of the crime at issue and the level of threat posed by the individual.

The policy prohibits officers and agents from starting or continuing a pursuit of a vehicle that is exceeding the speed limit and appears to be overloaded, unless they have probable cause that a felony involving the use, or threatened use, of physical force or violence that poses an imminent threat has been or is about to be committed, and a reasonable belief that the immediate need to apprehend clearly outweighs the risks.

This probable-cause standard also applies to pursuits that take place in or near schools that may be in session and other areas where, because of population density or the nature of the residential or commercial structures nearby, a pursuit would put the public at increased risk.

Officers and agents are also now specifically prohibited from engaging in extremely dangerous efforts to stop a vehicle such as “pursuit immobilization techniques” maneuvers, in which a government vehicle makes intentional contact with the vehicle being pursued to cause it to spin out and stop.

Finally, the policy, which includes additional restrictions on when and how high-speed pursuits can be carried out, also creates a new review structure for vehicle pursuits, which we explore in depth in our full policy brief.

While the new policy advances key, common-sense reforms, important questions remain about how CBP will operationalize this revised policy and ensure compliance and transparency.

We urge CBP to mandate that training for authorized officers, agents, and supervisors on the revised policy be taught by skilled instructors, using effective learning techniques, to ensure that officers, agents, and supervisors are sufficiently informed of the policy revisions.

The training curriculum on the revised vehicle pursuit policy should also provide clarifications about key aspects of how the policy will be operationalized, including how “objective reasonableness” is assessed by officers and agents in the field, and how the policy relates to the agency’s existing Use of Force Policy. Additionally, the agency should take steps to ensure that the revised policy clearly sets forth the minimum required standards for officers and agents, regardless of whether any other law enforcement agencies are involved in a pursuit.

It’s also critical that CBP invest in robust data collection and analysis capabilities, and that the newly created Vehicular Pursuits Review Committee accounts for key lessons and concerns raised by incidents that result in injury or death.

Our full policy brief provides additional recommendations on the agency’s review processes. Vigorous oversight and accountability measures will be essential to ensuring that CBP’s revised vehicle pursuit policy is not merely a piece of paper, but rather a robust tool to protect and preserve human life.

As CBP Acting Commissioner Troy Miller acknowledged, vehicle pursuits “pose inherent risks.” Here in the borderlands, our communities have been living and suffering with those risks for far too long, and we are committed to reducing the harm caused by these and other aggressive immigration enforcement tactics.

The ACLU of New Mexico has further recommendations for the implementation of the revised policy available here.

In 2019, police in Castle Hills, Texas arrested Sylvia Gonzalez, a 72-year-old first-time city council member, because they didn’t like that she was advocating for the removal of the city manager, a police ally. Since police can’t constitutionally arrest someone simply because they find what they’re saying offensive, Castle Hills officers used a section of the Texas Penal Code related to the handling of government documents to arrest Gonzalez. Her purported crime was accidentally placing a citizen petition she had introduced at her first city council meeting into her personal binder.

Gonzalez sued, alleging that the police violated the First Amendment by arresting her in retaliation for her speech about the city manager. To establish that the arrest was retaliatory, she argued that the law used to arrest her had never been used to go after similar conduct. The Fifth Circuit dismissed her case, holding that to prove retaliation, she would have had to prove that other people who did exactly what she did (accidentally put a petition in their personal binder) but expressed different views (support for the city manager) were not also arrested. The court did not explain how she could possibly have offered such evidence.

Gonzalez has asked the Supreme Court to take her case. This month, the ACLU filed an amicus brief in support of her petition, urging the court to overturn the Fifth Circuit’s rigid rule to ensure that the police can’t use broad, vague, or new laws in novel ways to arrest critics of police and government.

As our brief explains, the Fifth Circuit’s decision denies crucial First Amendment protections that the Supreme Court sought to preserve in the 2019 case Nieves v. Bartlett. While the existence of probable cause to arrest generally defeats retaliatory arrest claims, the Supreme Court recognized in Nieves an important exception for circumstances in which “officers have probable cause to make arrests, but typically exercise their discretion not to do so.” The court pointed to the example of jaywalking, an act that’s illegal in many places but happens all the time, and typically goes unpunished. The court held that a vocal critic of the police should be able to bring a retaliatory arrest claim if they were arrested for jaywalking where jaywalking is commonplace but rarely results in arrest.

The court recognized what is now known as the Nieves exception because it was concerned that the wide expanse of criminal laws across the country gives police discretion to arrest in a broad range of circumstances, and that discretion could be exploited to punish disfavored speech. It’s what happened in Gonzalez’s case. While the Texas tampering law gives discretion to police to arrest people for attempting to steal (or for misplacing) a government record, it has not, in fact, been used that way — except to arrest Gonzalez. But the Fifth Circuit held that the Nieves exception was not available to Gonzalez because she did not show that other similarly situated individuals had mishandled government documents and were not arrested.

If left in place, the Fifth Circuit’s rigid reading of the Nieves exception would have dangerous consequences for critics of police and the government. People bringing retaliatory arrest claims will rarely be able to get the type of evidence required by the Fifth Circuit, because they typically don’t have access to evidence of others engaged in conduct identical to theirs. How would Gonzalez have evidence that other people put petitions in their binders and didn’t get arrested for it? How would someone arrested for a minor traffic infraction show that other drivers who committed the same infraction but didn’t “talk back” to the officer didn’t get arrested? How would someone arrested under a noise ordinance have evidence that others who played less offensive music at the same volume under the same circumstances didn’t get arrested for it?

Police arresting people because they don’t like their speech isn’t just a hypothetical. Take the case of Michael Picard, who was arrested in 2015 when protesting legally near a DUI checkpoint with a sign reading “Cops Ahead: Keep Calm and Remain Silent.” Officers brainstormed how they might charge Picard and one suggested, “We can hit him with reckless use of the highway by a pedestrian and creating a public disturbance.” Or the case of George Alston, who was pulled over for driving with tinted windows, but ultimately arrested because an officer disliked the way he criticized the traffic stop to his wife over the phone. In another instance, an officer said to a motorist, “[i]f you run your mouth, I will book you in jail for it.”

As these examples demonstrate, it’s easy for police to abuse their discretion and exercise their arrest power against those with whom they disagree. It is crucial that the Nieves exception apply where police use broadly-worded laws in novel ways to arrest critics like Gonzalez. We all have a right to free speech, and arresting anyone for exercising their rights is unconstitutional. We hope SCOTUS will take up this case to ensure that it doesn’t become impossible to allege a retaliatory arrest claim.