"...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, September 15, 2015

Activist Groups Tell Justices To Curb Lengthy Border Stops

From the excellent article by Bryan Koenig:
Law360, Washington (September 14, 2015, 4:40 PM ET) -- A pair of activist groups have joined a U.S. Air Force officer’s certiorari bid telling the Supreme Court that allowing U.S. Customs and Border Patrol agents to subject individuals to lengthy internal checkpoint stops simply due to “unorthodox behavior” invites abuse.

The Texas Civil Rights Project and the National Immigration Project of the National Lawyers Guild asked the high court to take up Air Force Major Richard Rynearson’s appeal of a split Fifth Circuit ruling that found that two Border Patrol agents did not violate the Fourth Amendment when they held Rynearson for 34 minutes in a 2010 stop at an internal immigration checkpoint. 

The article continues to quote the amicus brief, stating:

“The Fifth Circuit excused the agents’ dilatory conduct on the view that petitioner engaged in purportedly ‘unorthodox tactics’ during the stop and ‘the agents had difficulty determining how to respond,’” the groups said in their Sept. 8 amicus brief. “But that makes no sense. The only purpose of the stop was to determine whether petitioner had a right to be in the United States, and nothing petitioner did prevented the agents from asking the questions and inspecting the documents needed to make that determination.”

The article gives a good summary of the issue presented in my civil suit:

Rynearson should not have been subjected to the lengthy stop simply because he asserted his rights against unreasonable searches and seizures, the groups said. Calling his bosses at Laughlin Air Force Base and requesting his passports as the agents did was outside the bounds of a proper checkpoint stop, the groups argued.

“The delay had nothing to do with determining petitioner’s citizenship; it resulted from the agents’ decision to use the stop to question petitioner about his military status and to complain to his military superiors when he was less deferential than they might have preferred,” the groups said. “The notion that the agents could prolong the stop for that purpose, merely because they did not like petitioner’s demeanor, is absurd.”

An attorney for Rynearson, J. Carl Cecere of Cecere PC, told Law360 Monday that the groups’ support “shows the importance of our case.”

Importantly, the article states toward the end:

The advocacy groups blasted the Fifth Circuit’s decision in their brief, warning of a new and dangerous precedent that could create a loophole to Fourth Amendment protections, which could broaden what they argued is already a serious problem with checkpoint abuse.

“It invites Border Patrol agents to extend stops whenever a detainee engages in what the agents might characterize as ‘unorthodox tactics,’” they said, “which apparently include asserting one’s constitutional rights.”

To read the full article, please click here.

To read the joint amicus brief from the Texas Civil Rights Project and the National Immigration Project of the National Lawyers Guild, please click here.

Update (23 Sep 15):  The SCOTUS has requested the government provide a response to this cert petition.

To watch a video of me discussing this issue on Fox News with John Stossel, combined with clips of the oral argument before the Fifth Circuit Court of Appeals along with clips from the actual checkpoint encounter itself, please check out the video below, "Clearly Established."

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