"...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

Wednesday, March 4, 2015

The Air Force Times on my Fifth Circuit Ruling

The Air Force Times today wrote an article about the two-judge majority at the Fifth Circuit Court of Appeals recently ruling against me, hours after Jacob Sullum from Reason wrote an outstanding piece about the ruling.  The Air Force Times staff writer did a good job on the article despite the time constraints, although a link to the court's opinion in the article would have been very helpful for readers.

Still, there are a couple of corrections that should be made.  The Air Force Times writes,

"Next time, just be a little more cooperative," Perez says. "Roll down your window next time." 

The statement actually made was the agent saying he appreciated my cooperation, understood if I didn't want to roll my window down all the way, but who asked in the future that I roll it down "enough to communicate" (as the video shows I had done).  More importantly, it was not Agent Perez who made this statement, but rather Agent Lands who released me at the end of the detention.  That is a fact that the government, the district court, and the two-judge majority at the Fifth Circuit, consistently got wrong repeatedly, despite multiple corrections.  Judge Elrod, in her dissent, provided the most recent correction of that repeated and consistent mistake, stating:

The majority opinion incorrectly asserts that Agent Perez was the one who returned the passports to Rynearson and informed him that he was free to leave.  In fact, Agent Lands (not Agent Perez) was the officer who returned the passports; in his declaration, Agent Perez averred that he “informed [Agent Lands] to release Mr. Rynearson and to return Rynearson’s passports and send him on his way.”  ROA. 266.  In addition, the agents’ voices are clearly distinguishable on the videotape, and Agent Lands is the one speaking when Rynearson receives his passports and is informed that he may leave.

The Air Force Times also includes in its article:

Lands eventually tells Rynearson he isn't satisfied he's a U.S. citizen and accuses Rynearson of being "evasive." When Rynearson points out he has offered up two forms of ID, the agent says "that doesn't mean anything. Those aren't immigration documents."
They squabble for about eight minutes before Lands leaves to find a supervisor. Meanwhile, Rynearson puts his passport in the window along with his military ID and driver's license.

There is one fact I think should have been included between those two paragraphs, and it was a point made by Judge Elrod in her dissent.  When the agent finally came around to saying the identification he requested, and which I immediately produced, didn't mean anything...I then instantly asked the agent if he wanted a passport, and he ignored the offer.  That is a very important fact and was included in the Fifth Circuit Court of Appeals panel's dissent:

The Air Force Times also reported:

The district court ruled Lands and Perez were entitled to qualified immunity because Rynearson did not prove that his Fourth Amendment rights had been violated during the stop. The appeals court agreed.

This is inaccurate, although it's completely understandable for a non-lawyer who has limited exposure to the intricacies of the case.  The appeals court agreed with the district court that the constitutional rights in question were not "clearly established." They did not agree with the district court that a constitutional violation did not occur.  The two-judge majority simply refused to even analyze whether the constitution had been violated or not by the Border Patrol agents.

Understandable mistakes aside, it was a solid report on behalf of the staff writer.  One of the very best I have seen from the Air Force Times.

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