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US border agency flags 155 cases for further scrutiny in review of use of force, misconduct

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SAN DIEGO — The agency that oversees the U.S. Border Patrol said Friday that an initial review of cases involving use of force and alleged misconduct by agents and inspectors found 155 that merit further investigation.

Mark Morgan, interim head of Customs and Border Protection's internal affairs office, said there was no timeline to complete the review and Commissioner R. Gil Kerlikowske had not decided what information to release on individual cases. One case resulted in a death.

Morgan, an acting assistant commissioner, is a longtime FBI official who was named to the job in June amid widespread criticism that Border Patrol agents use excessive force and that CBP is slow to investigate and lacks transparency.

CBP examined 860 cases since 2009, including most of the 67 involving deadly force that are addressed in a highly critical, CBP-commissioned report released in May. That report, by the Police Executive Research Forum, said some agents were suspected of intentionally placing themselves in the escape route of fleeing vehicles to create justification to fire weapons and that some shootings of rock throwers were questionable, especially when attackers hurled projectiles from across the border in Mexico.

CBP also reviewed cases in a report by the American Immigration Council that details a wide range of alleged abuses, from agents kicking a pregnant woman who later miscarried, to knocking someone's head against a rock.

Reasons for further investigation may include questions about whether a case could have been handled differently, perhaps by not standing in the way of a fleeing vehicle, abandoning a high-speed pursuit or using a nonlethal weapon, Morgan told reporters in Washington.

Morgan acknowledged criticism of the slow pace of investigations, blaming a long-standing arrangement within the Department of Homeland Security that requires another agency, Immigration and Customs Enforcement, to investigate CBP employees for possible criminal misconduct before CBP gets its turn.

Morgan said CBP won't investigate wrongdoing that doesn't rise to the level of a crime until all federal, state and local authorities complete criminal investigations. CBP has not yet reviewed 11 cases in the Police Executive Research Forum report because they are still under criminal investigation and it doesn't want to influence the outcome.

"This has resulted in very unintended consequences, but nevertheless consequences, in terms of efficiency, timeliness and transparency — not quality," he said.

Morgan replaced James Tomsheck, who has recently given interviews saying he was a scapegoat and that some deaths are highly suspect. It is unclear how long Morgan will stay.

"I've got no legacy mindset," Morgan said. "I've got no skin in the territorialism within CBP. I'm an outside guy coming in."

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