National

HSI agent shootings raise accountability questions

By José-Ignacio Castañeda Perez, Mackenzie Shuman, Derek Hall and Nicole Ludden
Howard Center for Investigative Journalism

Efrain Torres swung open the brick-red wooden gate to his family’s northwest Chicago home and headed toward the back door after a night out with friends. In the predawn darkness, he heard voices behind him.

“Felix, come here,” they said. “Come here, Felix.”

Efrain Torres said he turned around to see three men wearing black vests that said “Police.” He didn’t know what they wanted, he later told Chicago police, and banged on the door for his father to let him in.

Fearing neighborhood gangs were harassing his son, Felix Torres Sr. grabbed his licensed handgun before opening the door, a police incident report said. Seconds later, the father lay on his kitchen floor bleeding from an M4 rifle bullet fired by an agent of Homeland Security Investigations.

The March 2017 shooting outside the tidy tan-brick home in a working-class neighborhood of Chicago is one of at least 13 HSI agent-involved shootings identified by the Howard Center for Investigative Journalism.

HSI agents told Chicago police the elder Torres had pointed his gun at them, according to the incident report. In a hospital interview with police, Torres refused to say whether he took aim at the agents. In a subsequent lawsuit, Torres, a legal U.S. resident, said he didn’t have the gun with him when he came out of the house.

HSI agents wanted to talk to his son, Felix Torres Jr., as part of an operation to check the immigration status of known gang members, the police report said. Torres Jr. had been arrested a month earlier on a weapons charge, according to Cook County court records.

Chicago police officers were at the scene at the time of the shooting, “on overwatch in event of an emergency,” according to the report. After Torres was shot, officers rushed into his home and administered first aid.

“CPD had no active part in the Homeland Security investigations,” Sgt. Gus Vasilopoulos said in the incident report. Chicago is one of the nation’s “sanctuary cities” and says it has a mission to “make Chicago the most immigrant friendly city in the country.”

In October, Torres Sr. sued the federal government and the HSI agents involved in the incident, alleging battery, false arrest and intentional infliction of emotional distress, according to court documents. It was at least the fourth federal civil rights lawsuit filed in connection with HSI-agent involved shootings.

The U.S. Attorney’s Office responded in January, denying most of Torres’ allegations and saying the agents “acted reasonably and in self-defense.”

The March 2017 shooting outside the tidy tan-brick home in a working-class neighborhood of Chicago is one of at least 13 HSI agent-involved shootings in recent years identified by the Howard Center for Investigative Journalism.

At least 16 people have been killed, wounded or injured in the shootings, most of which occurred in the past two years. The majority of shooting victims were black, Hispanic or Native American.

Arizona had the most agent-involved shootings, but at least eight other states have had at least one since 2011, the year after the U.S. Immigration and Customs Enforcement Agency created HSI – the largest investigative unit in the Department of Homeland Security.

No agent has been charged in connection with any of the shootings. ICE says its Office of Professional Responsibility reviews all agent-involved shootings, but those investigations have not been made public.

Homeland Security Investigations, the investigative arm of Immigration and Customs Enforcement, enforces hundreds of criminal statutes with thousands of agents, who operate in the U.S. and abroad. ICE boasted in a December news release that HSI had made more than 37,500 criminal arrests in fiscal 2019, a 9% increase over the previous year. (Video by ICE, published on the news release agency's website)

Larry Cosme, a retired HSI agent who is the national president of the Federal Law Enforcement Officers Association, said agents involved in shootings should be investigated because it promotes transparency but added, “Those reports don’t need to be disclosed to be transparent.”

“HSI agents are doing a great job, and they’re doing the job under circumstances that are very difficult to deal with,” Cosme said. “They are trying to protect the communities that we all live in.”

Attempts to get comment from HSI field offices involved in the shootings were mostly unsuccessful.

An ICE spokesperson in Chicago, Nicole Alberico, said the agency does not comment on pending litigation.

“However, lack of comment should not be construed as agreement with or stipulation to any of the allegations,” Alberico said in an email. “As part of the Department of Homeland Security’s homeland security mission, our trained law enforcement professionals adhere to the Department’s mission and values, and uphold our laws while continuing to provide the nation with safety and security.”

Howard Center reporters pieced together details of the agent-involved shootings using police reports and other official documents from state agencies, obtained under public information requests, as well as court records, lawsuits and interviews.

A half-dozen of the shootings identified by the Howard Center occurred in busy parking lots of strip malls and restaurants. At least five shooting victims, including Felix Torres Sr., were not subjects of the agents’ original investigations. Each shooting affected, in one way or another, the communities in which they occurred.

Juan Cruz, an organizer with the Chicago advocacy group Communities United, said his organization received numerous calls from concerned residents and parents on the day of the shooting. Some parents, who had heard about ICE’s presence, were afraid even to pick up their kids from the nearby elementary school, he said.

“It definitely had an impact on the community,” Cruz said. “Who are these officers who responded, you know, accountable to?”

Questions about accountability and transparency frequently accompany HSI agent-involved shootings. Many people are still unaware of the ICE investigative division.

“What’s HSI?” a police officer asked one plainclothes agent shortly after arriving at the scene of an April 2019 shooting in the Phoenix neighborhood of Ahwatukee Foothills.

HSI enforces hundreds of criminal statutes with thousands of agents, who operate in the U.S. and abroad. It’s one of two main operational units of ICE; the other is Enforcement and Removal Operations (ERO), whose agents primarily arrest and deport undocumented immigrants.

ICE boasted in a December news release that HSI had made more than 37,500 criminal arrests in fiscal 2019, a 9% increase over the previous year. Agents investigate a variety of crimes from human smuggling and trafficking to identity theft and child pornography.

But despite its carefully curated public image, HSI and its parent agency closely guard any information related to agent-involved shootings or internal use-of-force investigations. Requests by the Howard Center for such information under the Freedom of Information Act have either been denied or delayed.

“I don’t know of any federal agency that has willingly turned over their use-of-force data,” said Michael White, a professor of criminology and criminal justice and associate director of Arizona State University’s Center for Violence Prevention and Community Safety. “It’s usually something they protect very closely and, as a result, it makes it very difficult to study.”

Experts say this lack of transparency has caused federal agencies to fall behind in the kind of local community policing reforms that arose from the Black Lives Matter Movement, which was spurred by multiple high-profile police shootings of unarmed black men.

Geoffrey Alpert, an internationally renowned use-of-force expert who has studied high-risk police activities for more than three decades, said federal agencies are less progressive in their policies than state and local police departments.

“They need more transparency to release their data so researchers and others can look into it,” said Alpert, a University of South Carolina professor who has taught at the FBI National Academy. “And they certainly need accountability where they don’t hide things and you don’t need to file a lawsuit.”

Although their roles and tactics may be different, he said, local and federal law enforcement officers should follow the same use-of-force standards.

“It is still the same country, still the same laws,” Alpert said. “They can’t pull the trigger in any different scenario than a local cop. The standards can’t be any different, unless the Constitution’s different.”

“I don’t know of any federal agency that has willingly turned over their use-of-force data,” said Michael White.

Since 2016, Homeland Security’s inspector general has released at least a half-dozen reports highlighting deficiencies in management, training, oversight and use of force within the department and its component parts, including ICE and HSI.

In January 2017, the inspector general said Homeland Security had “not done enough to minimize the risk of improper use of force by law enforcement officers.”

Auditors found that the department didn’t have an office dedicated to overseeing use of force among its various units, didn’t ensure that data was collected to assess use of force and take corrective action if needed, hadn’t established “consistent requirements for less-lethal recurrent training,” and didn’t ensure that use-of-force policies remained current.

The inspector general specifically noted that ICE was still relying on a 2004 use-of-force policy. Homeland Security instructed its component agencies to update their use-of-force policies, but it’s not clear ICE did so. In response to a Freedom of Information Act request seeking its “updated” use-of-force policy, ICE in November sent a link to the 2004 document. That policy was later removed from ICE’s website.

Inspector general reports also have highlighted concerns about the training of HSI agents:

• In 2017, after the president ordered ICE to hire thousands of additional agents, the inspector general said the agency couldn’t provide full data to support the need for more agents and faced “significant challenges” in hiring and adequately fielding them.
• In January 2018, after learning of ICE plans to separate basic and advanced training for its HSI and Enforcement and Removal Operations agents, the inspector general warned of “unintended consequences,” including a degradation of training.
• In November 2018, the inspector general warned that training concerns would “likely become more serious” with the increased demand of more agents.

That report specifically highlighted the effect on HSI, which “relies heavily on temporary duty instructors with abbreviated assignments.”

“This approach is not only expensive but also ineffective in terms of ensuring consistent, safe instruction,” the inspector-general’s report said.

In seven of the shootings reviewed by the Howard Center, agents fired into vehicles and typically justified using deadly force because of the threat they said those vehicles posed. Policing experts say that scenario should be avoided.

“Officers/agents should be prohibited from shooting at vehicles unless vehicle occupants are attempting to use deadly force – other than the vehicle – against the agent,” the Police Executive Research Forum said in reviewing the use-of-force policy of U.S. Customs and Border Protection.

“Training and tactics should focus on avoiding positions that put agents in the path of a vehicle and getting out of the way of moving vehicles,” said the 2013 review by the police research and policy group.

Agents have the advantage of choosing when and where the arrest takes place, experts said. They can pick areas that are less populated and times when the target is not in a vehicle, and they can use tactics to help avoid a violent outcome.

Alpert said police shouldn’t fire into vehicles without a specific target because “there may be innocents, there may be hostages and maybe all sorts of stuff inside that vehicle. ... Shooting without target acquisition is really dangerous because you can hit someone that wasn’t involved.”

In the Ahwatukee Foothills shooting, agents were clear in their statements to police that they couldn’t see inside the suspect’s SUV, didn’t know who was shooting or how many people were in the car. Only one agent, near the end of the firefight, said he had the driver in his rifle’s scope. But the driver turned out not to be the shooter.

In another shooting in Phoenix, HSI agents fired into a suspect’s vehicle outside a strip mall knowing that a young child was in the passenger’s seat, according to the Phoenix Police Department incident report.

The 4-year-old, who was the son of the suspect’s girlfriend, was injured by glass fragments after a bullet shattered the windshield, the report said. An HSI agent went to a nearby salon to get towels and water to wipe “the blood from the child,” the report said.

George Kirkham, a retired criminology professor at Florida State University and a private criminal justice consultant, said law enforcement officers shouldn’t fire into moving vehicles “unless there is some threat other than the vehicle that you can't avoid.”

“There is nothing more tragic than when those who are put out there to serve and protect, wind up killing or injuring innocent people,” he said.

U.S. Supreme Court precedent and widely accepted use-of-force guidelines have established that deadly force is justified only when there is an imminent threat of death or serious bodily injury, even in cases where a suspect is attempting to flee.

In 2015, HSI agents shot and wounded a man in a West Palm Beach, Florida, parking lot during a failed undercover drug deal. The agents said they fired in self-defense and to prevent the suspect’s escape, according to a federal criminal complaint.

However, surveillance footage from a store camera and an ICE helicopter later surfaced showing the agents running toward the car as the suspect, Michael James Antonoff, was driving away.

Homeland Security Investigations agents in West Palm Beach, Florida, shot and wounded Michael James Antonoff in a furniture store parking lot on May 19, 2015, during an unsuccessful undercover drug deal. Agents claimed that Antonoff drove directly at an agent while attempting to flee. But surveillance footage from the store contradicted the agents’ account and showed one agent running towards Antonoff’s vehicle while shooting at him. (El Dorado furniture store surveillance footage, provided to the Howard Center by Antonoff’s attorney Rick Hussey.)

Charges against Antonoff for assault on a federal officer were dropped after he was arrested. He filed a federal civil rights lawsuit against the HSI agents, claiming they used excessive force, but a judge in 2017 dismissed the case, saying the agents acted reasonably.

In another undercover drug sting gone bad, an HSI agent shot and killed 22-year-old Fernando Geovanni Llanez in Chula Vista, California, in 2016.

The man’s parents later filed a federal civil rights lawsuit against the agent, alleging that he shot their son in the back after he had already been wounded three times and was lying on the ground.

“The final, and only fatal shot was into the midback of Plaintiff Llanez when he was on the ground and presenting no threat whatsoever,” according to the lawsuit.

In a motion to dismiss, U.S. attorneys said the agent acted lawfully and shot Llanez four times in a matter of two seconds, which “belies the suggestion that there was a pause and time for deliberation.”

Another HSI agent-involved shooting in California resulted in a confidential settlement in 2015.

Daniel Noriega filed a federal civil rights lawsuit against Justin Wiessner after the HSI agent mistook him for a drug-trafficking fugitive.

According to an Anaheim Police Department incident report and a letter the Orange County District Attorney’s Office sent to ICE officials, Wiessner pulled his government-issued, unmarked car in front of Noriega’s SUV and fired once through his windshield. Noriega sped away to a nearby gas station and called 911, saying a police officer “had shot at him for no reason.”

Federico Sayre, an attorney who also represented police-beating victim Rodney King during his lawsuit against Los Angeles in 1994, said ICE settled Noriega’s lawsuit because “they not only had the wrong guy, but they had no justification for firing at him.”

Cosme said that HSI agents are “highly trained,” but acknowledged that there are human factors at play during deadly force situations.

“Most people in the morning, they leave their homes and they want to make sure that they come back to their homes safe and sound,” Cosme said. “At the end of the day, behind that badge, there’s a human being.”