"...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

Thursday, February 26, 2015

"Standing on one's rights is...a venerable American tradition."

Sadly, two of the three judges on the Fifth Circuit panel that heard my appeal against the Border Patrol ruled that the agents did not violate "clearly established" constitutional rights and refused to tackle the issue of whether the constitution was violated or not.  The very sad irony is that their unorthodox tactic of saying the law is not clear (and therefore ruling that government agents need not be held accountable), followed by refusing to clarify the "unclear" case law, ensures that constitutional violations will continue to occur.  Why?  Because they find the law "unclear" and yet refuse to clarify the law even when a rare person, at great personal expense, provides them the opportunity to clear up "unclear" mysterious legal questions (for example the meaning of the word "brief").  Even when given the chance to do right by their nation and honestly earn their publicly funded paychecks to clarify the law (something that is well within the realm of a federal judge's job description), well,....some of them balk.

Imagine an umpire is paid to call balls and strikes over a plate.  Now imagine a wild pitch is thrown, but the umpire with his eyes tightly shut, calls out, "stttrreeeeeiiiike!"  You call a timeout and ask the umpire if he is blind, and he informs you that he is not blind, it could have been a ball or it could have been a strike, but in his view of the rules of the game he doesn't need to open his eyes (when a certain team is pitching) unless a previous umpire had ref'd with his eyes open when that same team pitched.  Further, he explains, unless he actually sees the pitch with his eyes, it must be called a strike.  The umpire refuses to open his eyes when the pitcher for the Federal Fire takes the mound, and the inning is a predictably quick three up, three down.  You might guess how the other team, the Ordinary Joes, fairs in the game.  Future umpires who share this understanding of the rules of game, of course, are also not bound to open their eyes when the Feds are pitching, if they don't want to, simply by his current refusal to peek at their pitches.  Loving this umpire, the Federal Fire spends virtually no time or expense training its baseball team, and yet they have a remarkable winning streak.  Despite the fact their pitcher can't hit the broad side of a barn with his throws.

The curious umpire above would be calling an inning of the Great American Pastime, in a similar way that two of the three circuit judges ruled in my appeal.  And their offered reasoning ensures that everything the Border Patrol throws at innocent American motorists continues to be a strike, no matter how wild, because they simply refuse to watch the pitch and rule appropriately according to the evidence.  There is one difference with the analogy of the umpire above, and the two-judge-majority ruling in my appeal.  The difference is that the rules of the limited-time-to-briefly-investigate-citizenship game has been previously umpired by judges with their eyes open, in accordance with their professional responsibilities, on several previous occasions.

The panel's unfortunate ruling can be found here, or viewed embedded below.

American tradition.  Like baseball.  Some get it, and some don't.  Fortunately, one of the three judges got it exactly right, albeit in a dissent.  I greatly appreciate her faithful public service and her fidelity to her oath.  The honorable Judge Jennifer Elrod wrote:

"The principal protection of Fourth Amendment rights at checkpoints lies in appropriate limitations on the scope of the stop. See Terry v. Ohio, 392 U.S.; United States v. Brignoni-Ponce, 422 U.S...  And our holding today is limited to the type of stops described in this opinion. "[A]ny further detention . . . must be based on consent or probable cause." United States v. Brignoni-Ponce."

- Martinez-Fuerte, Supreme Court of the United States, 1976

"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

"We have not discovered nor been shown any authority supporting Rynearson’s claim that the constitutional rights he chose to stand on [the right to be detained only as long as is reasonably necessary to briefly investigate citizenship status] were clearly established."

- Richard Rynearson, Fifth Circuit Court of Appeals, 2015


  1. The only thing that I take issue with Judge Elrod on is that she "respectfully" dissented. The majority ignored clearly established law including the 4th Amendment and checkpoint cases with no conflicting authority cited. They do not deserve the respect of the honest and duty bound Judge Elrod. She should have dissented with contempt for their turning a blind eye to clearly established and uncontradicted law.