This is part two in a four-part series. Read part one here.
The 911 calls started flooding in just after 3 p.m.
“They’re in the trees. I think it hit — I meant it didn’t look good at all,” one caller reported.
On a Saturday afternoon in April 2022, a white sedan zoomed down the emergency lane of the westbound Interstate 8 before swerving into an embankment, callers reported to authorities.
The United States Border Patrol was close behind, according to witnesses. One said Border Patrol “went flying by chasing” the car, but zoomed past the crash site just seconds to a minute later.
Jesús Manuel Saldaña Rocha, a 19-year-old U.S. citizen and Valley Center High soccer star, died at the scene from his injuries. Border Patrol still hasn’t said why agents tried to stop him or why they continued the chase. And reports the agents filed after the crash point to only one violation: failure to yield.
A recent change in Border Patrol’s chase policy may have prevented his death. It says agents cannot continue a vehicle pursuit when the only apparent violation is failure to yield.
But how well that policy will protect the public going forward from one of Border Patrol’s most dangerous border enforcement strategies is still an open question, as critics both inside and outside the agency debate whether it goes too far or not far enough in limiting agents’ discretion to pursue.
Saldaña Rocha was the 11th life lost in a chase involving Border Patrol in San Diego County since 2017.
The 11 include three people who died in a Border Patrol chase in 2017 after the driver swerved into a ravine off Interstate 15 near Rancho Bernardo.
In 2019, another three died and eight were injured after agents threw a spike strip at a fleeing pick-up truck full of undocumented migrants on the I-8 near Boulevard. The truck lost control and overturned, tossing migrants’ bodies onto the highway.
The year after that, two died after a car Border Patrol was chasing slammed into a semi-truck in Otay Mesa. Two other chases in 2018 and 2021 killed one person each.
Vehicle pursuits are the most common circumstances in which Border Patrol agents use force against suspects in San Diego. And the number of vehicle pursuits agents initiate in San Diego could be rising, too.
A spokesperson for U.S. Customs and Border Protection, Border Patrol’s parent agency, did not provide data on the number of vehicle pursuits agents conduct each year.
But use of force incidents involving pursuits – when agents attempt to end a chase using offensive driving tactics or a spike strip to pop a fleeing suspect’s car – jumped 70% from 2019 to 2022, according to data from CBP.
For decades, Border Patrol policy permitted vehicle pursuits under nearly unrestricted circumstances, according to critics who blame the agency for more than 100 deaths resulting from chases across the southern border.
Now, a new policy responding to those criticisms raises the standard for when agents can initiate vehicle pursuits. Under the old policy, a pursuit’s benefit to law enforcement must outweigh the “immediate and potential danger.” Now, pursuits must be “objectively reasonable.”
The new standard requires agents to weigh the immediate government interest in apprehending the suspect against the risk the pursuit poses to the public, law enforcement and the vehicle occupants. Other factors, such as the severity of the crime, also must be considered. That is the standard commonly used through most law enforcement agencies in the country.
But both critics of and advocates for Border Patrol say the policy is far from perfect.
Immigrant advocates say the new policy doesn’t go far enough to prevent sometimes deadly vehicle pursuits. Meanwhile, Border Patrol’s union leader says the policy is too strict, making it “impossible” for agents to do their job.
Criticism from outside groups
CBP’s new policy limits where vehicle pursuits can take place, the tools agents can use to stop pursuits and how agents decide to initiate chases.
Immigrant advocates have welcomed the changes after years of advocating for them, but some say more transparency and limits on pursuits are needed to save lives.
The new policy bans two techniques designed to end a pursuit which the agency itself said are unsafe and ineffective. Those maneuvers involve hitting a suspect vehicle causing it to lose control or boxing it in on all sides to force a stop.
Agents also are barred from pursuing vehicles in school zones and densely populated neighborhoods or when the vehicle appears to be overloaded and speeding, unless there’s probable cause to believe the suspect committed or will commit a violent felony.
The new policy specifically prohibits chases when the only apparent violation a suspect commits is failing to pull over. Under the new policy, in order to initiate a pursuit, an agent must reasonably believe that a suspect has fled a checkpoint or port of entry, entered the U.S. without permission or failed to yield when the officer attempted to stop the suspect for violation of a federal law.
Critics said the old policy permitted vehicle pursuits when “the risk taken and harm caused” was excessive compared to the suspected crime.
Lilian Serrano, director of the Southern Border Communities Coalition, said the new policy’s “objectively reasonable” standard “doesn’t go far enough to really prevent incidents and to really hold agents accountable.”
Serrano said the new policy should instead ask whether pursuits are “necessary and proportionate” to the suspected violation, a standard backed by international agencies.
“When law enforcement is held to that standard, and we start looking at the actions of the agents from the perspective of protecting the life at risk, that's when we think things will change,” Serrano said.
The new policy also established committees to review pursuits on a monthly basis and determine whether agents followed policy and the law. It also requires CBP to produce an annual report including the number of pursuits, resulting injuries, deaths or property damage and potential policy violations.
But the new policy doesn’t require those reports to be shared publicly, and doing so could help build public trust, Sheff said.
“Until we have more transparency from the agency,” Sheff said, “the public doesn't have a meaningful yardstick by which to assess whether agents are actually complying with these new rules.”
Criticism from within the agency
Agents with the largest law enforcement agency in the country have questioned the new policy, too.
The National Border Patrol Council, which represents 18,000 Border Patrol personnel, said CBP’s new policy “purports to be about saving lives, but in reality, it is more about making it almost impossible for Border Patrol Agents … to do their jobs.”
Brandon Judd, the Border Patrol union president, wrote in January that the new policy “will only encourage more smugglers to get on the roads with illegal immigrants and narcotics.”
That’s because, according to Judd, the policy prevents or discourages agents from pursuing vehicles.
Judd also called the policy “vague” and “contradictory.” He said the one-hour online training session provided by CBP is inadequate and “will inevitably lead to policy violations,” Judd said.
“Watching a one-hour video about a topic that upends long-standing policy is simply not enough to properly educate the workforce on the changes.”
CBP did not respond to a request for comment or answer specific questions about the training and implementation of the new policy.
Dennis Kenney, a professor at the City University of New York’s John Jay College of Criminal Justice, questioned how well agents will be able to make quick decisions on whether or not to pursue.
The policy itself is “very dense, very long, very complex,” Kenney, who also co-authored a book on police pursuits, said.
Kenney added that police in general tend to be “woefully … undertrained” when it comes to department policies like those for vehicle pursuits, so training and practice for the new policy is key. The other component is enforcement.
“Does the agency enforce that policy? To what extent do they actually make use of the policy?” Kenney said.
It’s unclear whether the policy has led to a reduction in deaths in the three months since its implementation. A CBP spokesperson declined to provide data on the number of chases agents pursue each year as well as the number of individuals killed in those chases.
Groups like the ACLU said they will be watchdogging the agency to see how the new policy is implemented and what effect it has.
“There’s a lot the agency can do to be more forthcoming,” Sheff said.
