Law Enforcement Unchecked by Evan Bernick

There is an excellent article recently written by Evan Bernick of the Institute for Justice and published on The Federalist Society blog.  Bernick's op-ed has been reproduced below:

It is an issue that affects millions of American motorists: Can border patrol agents detain you simply because they believe you are being difficult?  Last year, a federal court concluded that it was “reasonable” for border patrol agents performing citizenship checks to detain Richard Rynearson at an immigration checkpoint for 23 minutes after he offered the agents both his military and personal passports, without any suspicion of criminal activity. In rejecting Rynearson’s Fourth Amendment claims, the court brushed aside compelling evidence—captured on video—that the agents deliberately prolonged Rynearson’s detention because he dared to question the propriety of some of their questions and instructions.
 

Now, Rynearson is petitioning the Supreme Court to vindicate his right to be free from unreasonable searches and seizures. The Court should grant Rynearson’s petition and make plain that the Fourth Amendment’s protections do not evaporate when Americans get within 100 miles of the border and fail to genuflect before the officials whom they encounter there.

Here’s the full story. In March of 2010, Rynearson, a major in the US Air Force, was stopped by border patrol agents at a fixed interior immigration checkpoint (67 miles from the border) in Uvalde County, Texas. When asked whether he owned his vehicle, Rynearson answered that he did. He was then told to move to a secondary inspection area. He repeatedly asked, but was not told, why he was being detained. When requested, he held his driver’s license and military identification up to the driver’s side window where they could be read from outside the vehicle.
 

The agents waited until approximately eleven minutes into the detention to inform Rynearson that his military ID and driver’s license “don’t mean anything,” in terms of establishing his citizenship to their satisfaction. Rynearson immediately offered to show the agents his official and personal U.S. passports, but the agents ignored the offer. An agent later took the passports, but Rynearson was nonetheless made to wait while officials placed phone calls to Rynearson’s assigned military base. Not until 23 minutes after he initially offered his passports to the agents was he told that he was free to go.

As a general rule, the Fourth Amendment prohibits searches and seizures absent individualized suspicion of wrongdoing. When the Supreme Court carved out an exception to this rule for “routine and limited inquiry into residence status” at immigration checkpoints, the Court emphasized that routine checkpoint stops involve “a brief question or two and possibly the production of a document evidencing a right to be in the Unites States.” Last term, the Supreme Court held in Rodriguez v. U.S. that motorists pulled over for routine traffic stops cannot, be detained longer than the “time reasonably required to complete (the stop's) mission” absent reasonable suspicion of criminal activity. Consistency demands that all detentions short of arrest be similarly limited.

But when Rynearson sued the agents for violating his Fourth Amendment rights by extending his detention for no good reason, the Fifth Circuit Court of Appeals rejected his claim. The Fifth Circuit determined that the agents had “at worst, made reasonable but mistaken judgments” in “respond[ing] to [Rynearson’s] unorthodox tactics.”

This was a glaring abdication of judicial responsibility. As Judge Jennifer Elrod made plain in a fact-sensitive dissenting opinion, it is perfectly clear from the totality of the circumstances that Rynearson was detained in retaliation for asserting his Fourth Amendment rights. Rynearson’s detention time lasted 23 minutes after he had produced all required documents—despite the fact that records checks generally take only a few minutes.

The Fifth Circuit’s decision rests on the unstated premise that motorists ought to respond with immediate, unquestioning obedience to law enforcement, and that if they do not, any delay is their fault. But government officials may not interfere with someone’s constitutionally protected liberty simply because they deem that person to be a bother. Ensuring that officials’ respect for citizens’ rights does not become “unorthodox” requires judicial engagement—impartial, evidence-based judicial efforts to determine whether government officials are truly pursuing constitutionally proper ends. Rynearson, who has honored his oath to support and defend the Constitution through his military service, deserves to see our fundamental law enforced by our nation’s highest court.