"...do solemnly swear that I will support and defend the Constitution of the United States against all enemies, foreign and domestic..."

"For the good of the Air Force, for the good of the armed services and for the good of our country, I urge you to reject convention and careerism..."
- Secretary of Defense Robert Gates, Maxwell AFB, April 21, 2008

"You will need to challenge conventional wisdom and call things like you see them to subordinates and superiors alike."
- Secretary of Defense Robert Gates, United States Air Force Academy, March 4, 2011

Tuesday, October 30, 2012

Update on Border Patrol Lawsuit & Discussion of the Law

Over the last several years, I have spent a considerable amount of my time and resources defending the Constitution from government actors who have violated it.  One of those battles involves a string of violations at a Border Patrol checkpoint in Uvalde, Texas.  While stationed nearby, I traveled through that checkpoint nearly every weekend to go from one American town to another American town, without crossing any border.  The first of those incidents involved Border Patrol agents punishing me for not telling them my intended travel destination, by fabricating that their drug dog had hit on my vehicle, and then demanding I exit it so that they could search my two-door car.  They tore through my vehicle and threw my property onto the pavement, including my laptop computer.  Of course after their ten or so minute search, with the drug dog inside my car, they found no drugs.  After I collected my belongings off the pavement and put them back into my vehicle, I went on my way.  That was Veterans Day weekend.  I filed a complaint with the Border Patrol headquarters.

But the harassment didn't end there.  Finally, after several more incidents and after an incident with a dishonest police officer, I installed cameras in my vehicle to document any further unlawful activity by law enforcement officers.  Much as a convenience store owner who suffers a string of robberies might install a surveillance system, the cameras were put in place to provide some measure of accountability in a location that was was filled with unlawful activity.  It paid off greatly.

It allowed me to capture a thirty-four minute detention and a violation of the Fourth Amendment at that same checkpoint.  Many don't understand the law surrounding these checkpoints, so I'll provide what I have learned over the years.  It should be noted that we are talking about interior checkpoints that can be located up to 100 miles from any border, on highways where there is no border crossing.  This is an important distinction, as the law governing these checkpoints differs greatly from checkpoints that are actually on an international border.  So what is the law that applies?  Let's start from the beginning.

The Fourth Amendment to the United States Constitution guarantees the people the right to be free from "unreasonable searches and seizures."  The United States Supreme Court stated, "It is agreed that checkpoint stops are 'seizures' within the meaning of the Fourth Amendment (U.S. v. Martinez-Fuerte)."  The reason the High Court maintained that these checkpoints are seizures, is because all traffic is required to stop at these checkpoints.  As such, for the time a vehicle is stopped at the checkpoint, both it and its passengers have been "seized" by the government and cannot depart the checkpoint without permission from the government.  The question then becomes, is that seizure reasonable or not?

The Supreme Court ruled that, "A search or seizure is ordinarily unreasonable in the absence of individualized suspicion of wrongdoing (Indianapolis v. Edmond).”  In other words, if a government agent has suspicion that a person has violated a law, they can seize that person in order to begin an investigation.  This is the standard used, for example, when a police officer pulls over somebody speeding.  They develop the suspicion through a radar gun or other mechanism, and can then make the individual stop and issue a citation, which then has to be proved in court.  If a police officer pulls somebody over without suspicion that they have committed a crime then, according to the courts, they have conducted an unreasonable seizure and therefore violated the Fourth Amendment.

Border Patrol checkpoints not on the border are often referred to as suspicionless checkpoints.  That is because all people have to stop and are seized, despite the lack of suspicion that any crime or violation has been committed.  So while the Supreme Court has historically ruled such seizures a violation of the Fourth Amendment, the High Court did make an exception for these checkpoints.  In doing so, however, they laid down specific parameters that must be followed for the seizure at these checkpoints to remain reasonable.  Namely, the Supreme Court required that these checkpoint seizures be limited to, "brief questioning" to inquire into immigration status (U.S. v. Martinez-Fuerte).

Further, the courts have ruled that these checkpoints cannot be "catch all" checkpoints, that operate looking for any and all types of violations, but rather that they are limited to immigration status.  Anybody who has much experience with these checkpoints knows they routinely stray outside these lines and are effectively in place to also look for drugs.  Drug dogs are not gifted in the art of smelling citizenship (they're also prone to false alerts especially when handled by a dishonest dog handler).  But legally, these checkpoints are limited to briefly inquiring into immigration status, and they are not allowed to investigate into anything else unless they have reasonable suspicion for a non-immigration violation.  The reason for this is because these suspicionless seizures are an intrusion into the lives of law abiding citizens who are forced to stop there, and the courts have reasoned that as long as they are limited to brief inquiry into immigration status, then the intrusion is minimal and therefore justified.  As an aside, Supreme Court justices Thurgood Marshall and William Brennan vehemently disagreed with this view that such an intrusion would be minimal and therefore did not think them reasonable under the Fourth Amendment.  In fact, they argued that the ruling allowing these checkpoints to seize motorists, no matter how brief, did not justify the intrusion upon citizens suspected of no wrong doing who were simply traveling down the highway.  They wrote:
The starting point of this view [the majority opinion] is the unannounced assumption that intrusions are generally permissible; hence, any minimization of intrusions serves Fourth Amendment interests. Under the Fourth Amendment, however, the status quo is nonintrusion, for, as a general matter, it is unreasonable to subject the average citizen or his property to search or seizure. Thus, minimization of intrusion only lessens the aggravation to Fourth Amendment interests; it certainly does not further those interests (U.S. v. Martinez-Fuerte).
The majority of Supreme Court justices found otherwise, and made an exception for suspicionless checkpoints, but required the seizure to be brief and limited to inquiring into immigration status.  The Supreme Court stated that “[A]ny further detention . . . must be based on consent or probable cause (U.S. v. Martinez-Fuerte).”

So what is brief, and what is further detention?  According to the Fifth Circuit Court of Appeals (which has jurisdiction over the checkpoint in Uvalde, Texas), a stop of “a couple of minutes” is “within the permissible duration of an immigration checkpoint stop (United States v. Machuca-Barrera).”  That Circuit has also ruled that Border Patrol officers may “ask questions outside the scope of the stop,” ie questions that are not related to immigration status, but they may do so “only so long as such questions do not extend the duration of the stop (United States v. Machuca-Barrera).”

What about an order to exit the vehicle?  Do individuals have to exit the vehicle if requested to do so during the brief immigration inquiry?  The answer is no.  Regardless of whether requested in primary or requested in secondary, an individual has no legal obligation to exit their vehicle.  Certainly such action is not required to briefly inquire into immigration status, and further, the Border Patrol has no authority to order a person to exit their vehicle.  Why not?  Yet again, it's because there is no suspicion of any wrongdoing.  The Supreme Court has ruled otherwise in the case of suspicion based stops by law enforcement, such as a traffic stop for suspicion of speeding (Pennsylvania v. Mimms).  In that case, the Supreme Court has said law enforcement can order vehicle operators out of their vehicles for "officer safety."  The High Court chose, during suspicion based stops, to value the safety of government actors during routine traffic stops over the safety of American citizens.  However, agents of the Border Patrol have no such authority at suspicionless checkpoints.

So what questions are individuals required to answer at these Border Patrol stops, if any?  The answer is none.  Cooperation during suspicionless checkpoints is not required.  Individuals have a right to not answer questions, and there is no law that requires them to provide any identification.  Further, cooperation with an investigation/inquiry is not required even in stops that are based on suspicion, so they are most certainly not required in a stop where there is no suspicion of wrongdoing.  Still further, choosing not to cooperate with government actors who intrude into your life at a suspicionless checkpoint, cannot be used against you as a basis for suspicion.  The Supreme Court ruled, "We have consistently held that a refusal to cooperate...does not furnish the minimal level of objective justification needed for a detention or seizure (Florida v. Bostick).  The Fifth Circuit that holds jurisdiction over the checkpoint in Uvalde, Texas agrees stating, “[I]t would make a mockery of the reasonable suspicion and probable cause requirements if citizens' insistence that searches and seizures be conducted in conformity with constitutional norms could create the suspicion or cause that renders their consent unnecessary (United States v. Machuca-Barrera).”  An individual does not have to cooperate with agents at these checkpoints, and after the "couple of minutes" required to "briefly inquire" into immigration status, agents who have developed no reasonable suspicion for any violation, must release the motorist in order to comply with the Fourth Amendment.  Even if the individual chose not to answer questions or cooperate.

The Fifth Circuit has also stated, "Our decisions have held that police violated the Fourth Amendment by extending a stop by even three or five minutes beyond its justified duration (United States v. Machuca-Barrera)."  As such, I am extremely confident that my lawsuit will be victorious as I was detained for nearly thirty-four minutes, after agents failed to ask me any questions related to immigration status until more than ten minutes into the detention, and only did so after I had provided my driver's license, military ID card, and even offered my passport (an offer the agent ignored).  Beyond that, when the supervisory agent even later finally asked for both of my passports, I quickly provided them to him.  Still, he put them in his shirt pocket and detained me for another fifteen minutes while he called my military chain of command to verify that I was actually in the military--questions and actions that had nothing to do with my immigration status, but rather demonstrated a desire to punish me for recording the incident.  The agents repeatedly lied, saying that they had asked me my immigration status in primary, and that I had refused to answer the question.  The video shows that I answered every single question asked of me, with the one singular exception of providing the identity of my commanding officer, which I was not required to provide and which was information irrelevant to my immigration status.  Beyond extending the detention to call my military employer, their intent to harass was further demonstrated several weeks later when they wrote a letter to my military commander and claimed that my conduct was "unbecoming."

The law is clear, and even if I were to have to appeal my case to the Fifth Circuit that ruled in Machuca-Barrera, I am very confident that the Fourth Amendment will be vindicated.

These checkpoints are intrusions into the lives of law abiding American citizens who simply wish to travel unmolested.  Agents at these checkpoints require no suspicion of any wrongdoing to force themselves into your lives, but the Supreme Court has made it clear that they must remain limited intrusions.  It is important for us, especially for those of us who have taken an oath to support and defend the Constitution, to not blindly acquiesce to unlawful demands agents might make.  If we do so, we unwittingly train them to expect all who pass to likewise give up their constitutional rights or be harassed.  Even those who answer all relevant questions, as I did, and who provide four forms of identification including two passports, as I did.

If we don't support and defend the Fourth Amendment, what will be next?  Government agents able to enter our homes without any suspicion of wrongdoing and without a warrant?  Government agents who seize us during a walk to work without any suspicion of any wrongdoing?  Let's not allow the further eradication of our rights.  Not on our watch.

Sunday, October 21, 2012


A couple of weeks ago I was fortunate enough to attend the portrait unveiling for a judicial giant, Judge Douglas H. Ginsburg.  The judges from the Court of Appeals for the D.C. Circuit, present and past, dawned their robes and sat on the bench during the event.  The seats in the court room were filled with people from the legal community, including several justices of our Supreme Court.  Justice Alito and others spoke, honoring the long and faithful service of the judge.  After many great words, the portrait was unveiled.  Sitting in the marble chamber, a glance to the left or right showed the hanging portraits of all the judges from that chamber throughout its history.  A glance gave the impression of history, of something more important than the immediate, of something bigger than self.  The judge's portrait became a part of that legacy.  An American legacy.

We in the military also have the opportunity to build a legacy.  Surely, most of us will not get our portrait hung in a majestic building, but a portrait is merely a symbol.  It's a symbol of the faithfulness and dedication of the individual in the rendition, and the real legacy is found in time spent in service to the nation and to that which makes our nation special.  Our Constitution.  I feel a kinship with the judiciary.  Article Six of our Constitution, in the same line, in the same breath, requires both the judicial and executive officer, to swear or affirm to support that document, and the civil liberties enshrined within it.  Legacy for public servants, in my view, is determined by how well those public servants discharge their duty.  The jury is admittedly still out on Ginsberg, who has a real love of aristocratic trappings and who ruled inexcusably that banning AR-15s was constitutional.  Portraits often more accurately portray a love of power over principle.

Regardless, our Constitution is worth defending.  I hope that we who serve in the executive branch, and who have sworn to defend that document, will also strive for a career of faithful service.  The legacy of our work will be the continued existence of a free and prosperous nation.  We have a large role and responsibility in ensuring that this is the case.  It is not the judiciary's charge alone to support our nation's highest law.  We in the military play an important part, and we must strive to study and understand our Constitution, and to ensure that we comport ourselves appropriately in our action.  All of us who have sworn the oath, have a duty to support and defend our nation's highest law wherever threatened, in court or elsewhere.

Those who have served before us, memorialized in portrait or not, have passed the torch on to us.  It's up to us to honor their service, and to be a part of the American legacy.