"We have already noted that the permissible duration of the stop is limited to the time reasonably necessary to complete a brief investigation of the matter within the scope of the stop. The scope of an immigration stop is limited to...determining the citizenship status of persons passing through the checkpoint."
- Machuca-Barerra, Fifth Circuit Court of Appeals, 2001
"In United States v. Machuca-Barerra, we addressed those limitations in detail and noted that 'The scope of an immigration stop is limited to...determining the citizenship status of persons passing through the checkpoint...' It bears repeating that the permissible duration of an immigration stop is the time reasonably necessary to determine the citizenship status of the persons stopped."
- Portillo-Aquirre, Fifth Circuit Court of Appeals, 2002
It was an outstanding argument this morning, and the judges demonstrated a mastery of the facts and grappled with an interesting legal question. The oral argument above is well worth the watch. The first twenty minutes is my lawyer before the three judge panel, followed by the lawyer from the Department of Justice arguing the government's side, with pointed questions and commentary from the judges throughout to both lawyers.
In Portillo-Aguirre, the ruling states that, "...the entire stop lasted about ten minutes." The ruling further goes on to explain, "We have found that police violated the Fourth Amendment by extending a stop even three minutes beyond its permissible duration." The Fifth Circuit found in that case, "Here, the stop unquestionably exceeded this permissible duration."
That ruling first traces the court precedence from the SCOTUS to Machucha-Barrera and then explains yet again, common sense principles that everybody should know, stating, "Here, the stop unquestionably exceeded this permissible duration."
My detention was thirty-four minutes long. If the judges of the Fifth Circuit found in Portillo-Aguirre that the ten minute detention there was "unquestionably" impermissible in length, and it was, then there can be no question that mine was "super-duper-cherry-on-top" impermissible. No question in this galaxy or any dimension.
In other words, clearly established. Beyond doubt. Fair warning. Unquestionable.
Hopefully the judges here will find not only that our law "bears repeating yet again - no, really, we mean it this time," as they have done repeatedly in their circuit opinion for over a decade, but also that our law requires some teeth. Enough is enough. It's time to hold government accountable when it violates clearly established law. Qualified immunity should not be allowed to shield government agents from their law breaking this time.
There is no way the agents did not know what they were doing was illegal. They had more than fair warning.
For the full video of the unconstitutional thirty-four minute checkpoint encounter and to read all courts documents, including the amicus brief from the Texas Civil Rights Project, please click here.
ETA: For those wishing to read the 28J letter requested by the court, and my response to it, please click here.