How do federal use-of-force policies govern ICE and Border Patrol officer shootings during protests?
Executive summary
Federal use-of-force directives for Immigration and Customs Enforcement (ICE) and U.S. Border Patrol (a Customs and Border Protection component) are written rules that on paper limit shootings to situations where force is “objectively reasonable” and no safe alternative exists, but litigation, internal memos and recent incidents have exposed gaps in how those rules are applied at protests and public operations [1] [2] [3]. The recent Minneapolis and Portland shootings have intensified scrutiny, produced court limits on crowd-control tactics, and sharpened competing narratives from civil‑liberties advocates and federal officials [3] [4] [5].
1. The written standard: “objectively reasonable” and the last‑resort rule
ICE’s use‑of‑force policy—updated and cited in litigation—states force is authorized only when “no reasonably effective, safe, and feasible alternative appears to exist” and must be the level “objectively reasonable in light of the totality of facts and circumstances,” while also saying officers need not wait to be attacked and have no duty to retreat [1] [2]. Those phrases mirror broader DHS/DOJ firearms and use‑of‑force handbooks collected and tracked by policy analysts, which set legal and procedural limits on deadly force by federal agents [2].
2. How those rules translate at protests and vehicle encounters
Policies specifically address moving vehicles and crowd encounters in guidance across DHS components; DOJ and CBP handbooks include provisions about when agents may stop vehicles or use deadly force against a vehicle perceived as a deadly threat, and ICE’s 2023 policy was invoked in litigation over agency conduct around protesters, clergy and journalists [2] [6] [1]. In practice, federal officials have defended fatal and nonfatal shootings during protests as self‑defense or responses to perceived vehicle threats, while critics cite examples where agents fired on people in cars or at bystanders filming arrests [7] [8] [3].
3. Litigation, memos and the transparency problem
Court cases and public filings have produced internal memos that were previously obscure; reporting shows a “secret” use‑of‑force memo surfaced as an exhibit in litigation, raising questions about internal decision‑making and secrecy around enforcement tactics [9]. Plaintiffs in Chicago and elsewhere have sued over alleged improper force against journalists, religious leaders and protesters, prompting judges to examine and sometimes limit federal crowd‑control practices [6] [4].
4. Judicial checks and immediate operational limits
A federal judge in the Minneapolis litigation barred ICE and Homeland Security officials from using pepper spray and certain crowd‑dispersal tools against peaceful, unobstructive protesters and prohibited stopping vehicles that maintain a safe distance—an example of courts imposing operational constraints when plaintiffs show likely constitutional harms [4]. Such orders demonstrate that written agency standards can be tightened in court when application appears to violate free‑speech or due‑process rights.
5. Competing narratives: accountability vs. safety claims
Civil‑liberties groups and local activists point to a pattern of “unchecked” or abusive force—citing historical reviews of Border Patrol deadly‑force incidents, high rates of complaints closed without action, and recent shootings they call problematic—while federal officials and some local leaders argue agents faced life‑threatening obstruction or vehicle threats and were justified under policy [10] [3] [5]. Media accounts and op‑eds amplify both sides: organizers demand accountability and funding changes, and the White House has warned protesters that interfering with agents can be a crime, reflecting a politically charged context for enforcement decisions [5] [11].
6. What remains uncertain and where reporting is thin
Public sources document policy texts, court rulings and incidents, but gaps remain about how supervisors review shooting incidents, the content of every internal memo, and whether disciplinary or criminal processes will consistently follow each use‑of‑force event; reporting notes memos surfaced in litigation but does not provide a full, agency‑wide accounting of investigations or systemic remedies [9] [2]. The ongoing lawsuits and watchdog reporting suggest federal policy sets standards that can restrict shootings at protests, but enforcement of those standards and transparent accountability are contested and uneven in practice [4] [10].