Two years after the murder of George Floyd ignited worldwide protests against police brutality, President Joe Biden ordered federal law enforcement agencies to update their policies on use of force. A new report, however, finds that the nation’s largest law enforcement agency ignored the spirit — if not the letter — of that order.
The Department of Homeland Security has failed to accurately compile data on use-of-force incidents, according to a report issued Monday by the U.S. Government Accountability Office, or GAO. “We found the data were not sufficiently reliable for the purposes of describing the number of times agency law enforcement officers used force,” the watchdog agency wrote.
DHS updated its use-of-force policy in February to limit the use of no-knock entries, require more frequent training, and ban chokeholds unless deadly force is authorized. The changes brought DHS into compliance with Biden’s May 2022 executive order, which required federal law enforcement agencies to align their use-of-force practices with new Department of Justice policy. The order also included guidelines for improved data collection and reporting on federal agencies’ use of force.
GAO’s report, authorized by Congress last year, determined that several agencies under DHS have been regularly undercounting use-of-force incidents. From April 2022 to July 2023, GAO audited four DHS agencies: Customs and Border Protection, the Federal Protective Service, Immigration and Customs Enforcement, and the Secret Service. “If officers used force multiple times during one event, the agency counted only one instance of force,” said Gretta Goodwin, a GAO director for homeland security and justice.
Customs and Border Protection reported using force on a group of 62 subjects as a single use-of-force incident.
After an encounter at the U.S. border, for example, Customs and Border Protection reported using force on a group of 62 subjects as a single use-of-force incident. GAO’s analysis also found that Federal Protective Service officers described using force 146 times in data from 2021 and 2022, while Federal Protective Service reported only 36 use-of-force incidents. In one case, according to GAO, Federal Protective Service counted 27 separate uses of force across 15 reports as a single incident.
“We brought this to their attention, like ‘You’re not being transparent, and this clearly is an undercount,’” Goodwin said. “We asked them to pay more attention to that and to do an actual count of the use of force.” DHS did not respond to The Intercept’s request for comment.
The report’s findings are notable given how DHS agencies like Customs and Border Protection have typically counted uses of force against officers, said Katherine Hawkins, a senior legal analyst at the Project on Government Oversight. Customs and Border Protection has historically inflated data on use of force against officers to justify violence against migrants, The Intercept has previously reported. “This sort of sounds like the exact opposite, which is striking,” Hawkins said.
GAO also noted that DHS does not have a plan or system to monitor or analyze the use-of-force data it does collect under the updated policy. “According to officials, they have not developed a plan because it is too early to look at trends in the use of force data,” GAO wrote.
While each agency has an internal board that reviews uses of force, GAO found that in 2021 and 2022, DHS review boards determined most use-of-force incidents complied with agency rules.
This is an unsurprising trend, according to Hawkins, who noted that review boards were set up years ago to decrease use of force within Customs and Border Protection but typically found that such incidents were justified. There is no system in place to track board determinations and little transparency on how they analyze cases. “I don’t have a lot of faith in the review boards,” Hawkins said. “It’s kind of a black box.”
The four audited DHS agencies have use-of-force guidelines that reflect the standard of officer “reasonableness” established by the 1989 Supreme Court case Graham v. Connor. The court held that claims of excessive police force should be judged from the perspective of a “reasonable” officer responding to circumstances in a particular incident. The ruling has since given immense leeway to police, who often invoke the standard to justify using excessive force against civilians.
“When something goes up to one of the review boards, how are they making the determination that this is within or outside of policy?” Goodwin said. She added that GAO is interested in how DHS uses the information gleaned from its review boards. “What are they learning from it? What information, what lessons learned are they taking? And is that affecting how they do the training? Is that affecting any edits or updates they make to their policy?”
The report made two recommendations to DHS. GAO called on the agency to issue clarifying guidance on how its component agencies submit data on incidents when force is used multiple times, and it recommended that the secretary of homeland security create and implement a plan and timeline to analyze use-of-force data.
In a July 7 letter responding to a GAO request for comments on the report, DHS concurred with the office’s recommendations. The agency said it would create a plan to analyze the data by the end of this year, issue guidance on its reporting by January 2024, and complete the use-of-force data analysis in 2025. GAO will receive an update on the status of the recommendations within six months.
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