Border agency defends practice of exposing trainees to pepper spray

Customs and Border Protection has not consistently followed its safety protocols while exposing trainee officers to pepper spray, according to a report by the National Institute for Occupational Safety and Health.

The review of mandatory exposure of CBP trainees to oleoresin capsicum (OC) spray found that the agency's lesson plans for training were thorough and, if followed, would allow for minimal risk of injury. NIOSH recommended that CBP adhere completely to Federal Law Enforcement Training Center directives and its own lesson plans while conducting OC spray training.

CBP maintained that it conducts its training exercies safely and according to lesson plans. Additionally, Pete Hermansen, director of use of force at CBP, said the agency was not consulted on or involved with the NIOSH report.

"That report is a report that never engaged CBP at any time, ever," Hermansen said. "That report was done in conjunction with [FLETC], but FLETC is not responsible for our use-of-force training. My agency's lesson plans and instructors conduct the training."

Hermansen said the exposure is important as it allows new officers to understand the effects of the spray. But the National Treasury Employees Union, which represents CBP officers, disagreed. NTEU President Colleen Kelley argued that the mandatory exposure is "cruel and unnecessary," and called for an immediate end to the practice.

"Any theoretical benefits far outweigh the real risk of serious, sometimes permanent, injury to employees," Kelley said. "Moreover, a brief one-time exposure to OC spray over the course of an officer's career will not make officers less likely to use this weapon nor enable the officer to deal with its effects should they somehow be exposed."

Hermansen said CBP has analyzed the costs and benefits of exposure and determined it is a necessary part of training. "We do it so they know what the capabilities and limitations of the product are," he said. "The benefit of exposing our students is why we do the exposure. CBP feels the opposite side of the coin from NTEU."

The NIOSH review was undertaken at the request of NTEU, which had expressed concern over an incident in April 2006 at the FLETC facility in Glynco, Ga. During an April 28, 2006, training session, two trainees and an instructor suffered eye injuries. According to Kelley, one of the trainees was unable to work for almost four months and has ongoing pain in his eye and permanent damage to his vision.

The report found that during the session, CBP did not comply with a FLETC directive requiring there to be four feet between the pepper spray canister and the trainee. In the case of this session, the trainees were sprayed inside an SUV.

NIOSH also determined that one of the sprays far exceeded the maximum number of Scoville Heat Units, a measure of spiciness, considered safe by FLETC. Finally, according to the report, CBP failed to maintain proper records showing which OC sprays were used on which trainees.

Kelley said it was reprehensible to experiment with different types of pepper sprays on new officers. "It is simply unacceptable, indeed, outrageous, to require newly hired CBPOs to serve as guinea pigs to test 'various types of OC products,'" she said. "The April 2006 OC spray training exercise demonstrates, at minimum, a callous disregard" of the agency's responsibility to protect its employees. Hermansen said CBP is on the cutting edge of training and technology and is constantly assessing what is best for its officers and the environment. "If you take a look at how we've chosen the sprays on the authorized list, we are far above and beyond other law enforcement agencies conducting training for these sprays," he said.

The report said many law enforcement agencies, including the FBI and security force units in the Defense Department, conduct OC spray exposure as part of training or certification.

NTEU has filed Freedom of Information Act requests with CBP and FLETC for information on the April 2006 incident and has asked CBP to notify the union of any action taken in response to the NIOSH report.

Hermansen said CBP does not plan to respond to the report since the agency was not engaged in its production.