100 Mile Border

[mo]

I've become somewhat fascinated with this story about the preacher and the border patrol. If you haven't read about it, the gist is this 27 year old preacher has been fighting for his understanding of what his constitutional rights are regarding the border patrol. The other day, he got tazed, man-handled, and cut up and had the windows in his car busted out by the border patrol. He posted a rant about it on YouTube.

Now, the guy is a real asshole, but I have to give him some credit for standing up for his/our rights. The question is one of whether he is interpreting those rights correctly, and whether the border patrol is interpreting them correctly, and/or, is the border patrol abusing those rights. I think the answer lies somewhere in the middle.

In 1976 the Supreme Court ruled that checkpoints could be set up anywhere within 100 miles of the border. Most of the US population falls within that area. Part of the logic behind this is that if they were to thoroughly inspect everyone at the border, traffic would not be able to move. You can be stopped, questioned, and asked to move to a secondary inspection point to get you out of traffic. If they have reason to suspect you might have illegal aliens or drugs, etc., they can search your car. So technically, the only way this differs from the rest of the country is that you can be stopped and questioned without probable cause.

Supposedly, this guy travels a route that takes him through one of these check points often, and he got tired of being hassled every time he passed through, so he started doing only what he felt he was required to do by the Constitution, which is basically stop at the check point. He seems to think that he doesn't have to do anymore than that. He's hesitant to roll down his window, and even when he does, it's like only one inch. He doesn't answer questions, and he doesn't show ID.

This really pisses off the Border Patrol, because they're used to everyone complying when the BP feels like searching them. They use a lot of intimidation tactics. In one of the videos the preacher made, an agent tells him that they want to search him, and when the preacher asked them what law they think he's breaking, the agent says he has no idea. When the preacher asks him what the probable cause is, the agent basically says the preacher is suspicious because he's not complying like everyone else does. The agent also says that the preacher is holding up traffic, and that's another reason, but the preacher points out that the agent is the one holding up traffic by refusing to let the preacher pass.

In this latest incident, which was not video taped by the preacher as far as I know, the agents claimed that a K9 alerted them that the preacher had something in the trunk. The preacher claims the dog didn't react at all. They busted out the driver and passenger windows of the car, tazed him and dragged him out of the car, and in the process cut his face up pretty good with all the broken glass. There was nothing in the trunk.

I'm leaving out a lot of details to keep this as short as possible, but this is the gist of the story. I'm putting some links below that tell more.

So, should the guy just shut up and comply? Is the need to protect the border more important than the right to travel within the country without being harassed? I can see this type of behavior at the border, and I understand they're not going to catch everyone at the border, and that they probably catch a lot of people at these check points, but I would hate to have to pass through one of those every day on my way to work.



The law:
http://laws.findlaw.com/us/428/543.html

The 100 mile border:
http://www.aclu.org/privacy/spying/areyoulivinginaconstitutionfreezone.html

The rant:
http://www.youtube.com/watch?v=YUzd7G875Hc

An incident he taped back in February that shows the tactics he uses and the tactics the agents use:
http://www.youtube.com/watch?v=KFS7oZtE8Ks (very long and mostly boring)

Local news coverage of the latest incident.


Thoughts?

[random axe]

The Supreme Court decision strikes me as pretty unimpressive -- expedience over Constitutional rights, and I do  mean expedience rather than necessity.  I think they erred on the wrong side, but, then, I think a lot of our border policy is founded on philosophical errors.  If you can't control illegal activities without treating non-suspicious non-criminal citizens as criminals because the traffic rate across the border is too high, you should be reducing traffic across the border instead of reducing Constitutional rights.

I realize there are major (mostly economic) ramifications to reducing traffic across the border, but economic ramifications are the chief complaint against illegal immigration, too.  Our current policy is a case of doing what's convenient instead of sticking to principles.  Moreover, in a country founded on principles of citizens' rights you should always be intensely suspicious of any policy that creates, uses, or sustains its own police force.  We have far too many different levels and types of police organizations.  It is an inherent threat to the Constitution.  I'm actually in favor of pretty heavy policing, but having many different kinds of cops, under different organizations, following different rules, trained and regulated differently -- that's just plain doing it wrong.

In this case, I get the feeling that this preacher is not really in command of what the legal facts are.  He's looking for trouble and finding it.  However, the border cops he's dealing with seem awfully poorly trained and regulated, and they seem to be exercising too much discretionary power.  I'd certainly say he seems entitled to win a few sizeable lawsuits.

They had no adequate excuse to damage his car and drag him out of it.  Peaceful non-compliance rarely warrants violent action by the cops.  In this case, it seems like all they had to do was prevent him from leaving without complying or accepting arrest.  What was the hurry? 

[NexR]

So technically, the only way this differs from the rest of the country is that you can be stopped and questioned without probable cause.

It's actually no different as the cops in the middle don't really need probable cause either, since all they have to do is claim they smelled weed if they want to search you.

So, should the guy just shut up and comply?

What alternative does he have?  He can do his protests like he is, but as Axe very accurately observed, that just means he's picking a fight.  If he has money he can stage one of his protests, then get into a legal battle.  It's sad, but justice truly comes more readily to those with the money to fight.

Is the need to protect the border more important than the right to travel within the country without being harassed? I can see this type of behavior at the border, and I understand they're not going to catch everyone at the border, and that they probably catch a lot of people at these check points, but I would hate to have to pass through one of those every day on my way to work.

I think there are several issues at hand here.  Intermingled with the others there is the oft-touted right-wing issue of ID cards, and whether or not the police have the power to demand identification from people and detain until verified.  Personally, I bounce back and forth on this one as I see both points.  Ultimately, I think in order to provide security, we simply must submit to ID and questioning at any time.

There is also the issue of these special border checkpoints which I think the guy has a pretty good complaint against, but I know very little about.

But really, the main issue being addressed is what degree of power do we give our police to detain citizens.  That is, should the police have the authority to bother you if you're just walking down the street minding your own business?  From my experience we give them too much power, and more frighteningly, we give them a great deal of passes on improper behavior. 

The problem lies in basic law enforcement technique: apply pressure, if they act odd they're hiding something, so add more pressure.  Setting this guy's car aside and just waiting him out would never occur to cops.  Cops are also taught to always maintain authority over the perp and never surrender it.  , This gets so ingrained in them that when someone refuses to cooperate they get pissed.  This guy passively resisted, which must have really infuriated them.  I mean, they could understand if the guy ran, but just to sit there refusing to recognize their authority?  He needs a tazing.

What sucks is that if you do refuse to allow vehicle searches, the cops will call the dogs who will usually jump up on the car and scratch up your paint.  So even if the dogs give no indication, you're going to pay for it.  And more, resisting like he did only allows you recourse later, which doesn't help much when you're being beaten.  Plus, the courts tend to believe the police version of events over citizens, so unless you have someone in the car behind you taping everything, you're unlikely to get anywhere.  Dude has a point, we're dangerously close to a police state, even if it's not in the overtly menacing manner as the KGB.  We like to put a nice face on it.  But the article said he never filed a complaint with the department, so he's not interested in actually changing things, he just wants to be a martyr and complain about it.

[whidB]

Without probable cause established, I don't see any Constitutional backing for the hassle of showing ID and having your trunk searched.

And or whether they are permitted to use force in any way.

B-but the terrorists!

Personally I don't mind asking to be identified coming in or out of Canada...I have nothing to hide. Well maybe.

[NexR]

This isn't crossing the border.  Apparently they have checkpoints within the US set up as a sort of dragnet apparatus.

[whidB]

Makes it even harder to defend them.

AFAIK, we don't have anything like that up here. Granted, less population...

[random axe]

Canadians are whiter.

There are probably fewer of them illegally crossing over, too, although I don't know that for sure.

[First Post]

Yeah some of them are in odd places. There's one in the middle of nowhere in West Texas well outside of El Paso, or even the border for that matter (eta: Sierra Blanca). Then there's another one somewhere around Las Cruces I remember.

The stuff Nex is saying is pretty much how it is, though. Any theorycrafting about "rights" and "probable cause" is all out the window when it's just you and them. Basically they can do whatever they want. Whose word is gonna hold up better in court, yours or the "authority figure"?

[Lindsey Buckinghmof]

Definitely a slippery slope problem. I agree with the preacher. Honestly, nothing in the Constitution gives them the right to do that without probable cause. Nothing. The fact that this supreme court allows it means absolutely nothing: the majority are a bunch of corrupt partisan assholes.

[mo]

It was the supreme court in 1976 that made this ruling. If you read the ruling, and I admit I didn't read all of it, it sounds pretty fair. They even talk about how if this was allowed all over the country, people would be frightened.

What makes this incident interesting, or one of the things that makes it interesting, is that both sides are pushing their privileges to the extreme. The cops are doing all in their power to coerce this guy to comply. They think are abiding by that judgment, but I think the things they are doing would shock those judges. The judges never intended for anyone to be searched simply because they were arrogant.

[random axe]

They even talk about how if this was allowed all over the country, people would be frightened.

See, that right there is a strong hint that you're doing it wrong.  You can't just apply a blanket negation of civil rights in one area because that's a problem area . . . forever . . . at the police's discretion.  That's what you call martial law.  Their argument at the time was that the public good outweighed the public disenfranchisement.  This kind of judgment warrants constant re-evaluation -- especially when the situation changes (which it invariably does).

Based on the FindLaw link's text, I gotta think that the Border Patrol is exceeding the boundaries initially imagined, anyway.  The decision suggests that at a checkpoint you need specific probable cause (which you can demonstrate later) in order to stop a vehicle for more than 3-5 minutes for specifically nothing more than "a brief question or two and possibly" showing some kind of ID / paperwork, not haul-you-out-and-search-the-car, and that's only for a small percentage of vehicles. 

It also says that a roving patrol doesn't need probable cause

if the stopping officer is "aware of specific articulable facts, together with rational inferences from those facts, that reasonably warrant suspicion" that a vehicle contains illegal aliens.

which sounds like they're saying you don't need probable cause if you have, uh, probable cause.  Hmm.

They also say (more than once) that the cops don't need probable cause to stop you because the volume of traffic makes it impractical to casually inspect every vehicle well enough to establish probable cause if there is any. 

(Actually, they say "particularized study" and "identified as a possible carrier of illegal aliens".  The latter phrase is, pardon me, retarded, as any vehicle is realistically a possible carrier of illegal aliens.  The possibility that a crime could possibly be in the act of commission can't be a plausible standard for probable cause.  Anyone, at any time, no matter how innocuous they appear, could be in the act of committing a crime, such as conspiracy.  I imagine this is just poor phrasing, but it's kind of embarrassing.  But anyway.)

OK, so, I think this is a pretty fair argument, which is why I said that, in that case, they should reduce the flow of traffic.  Hiring enough cops and creating enough entry lanes so that every car could be given a good once-over is probably prohibitively expensive . . . although probably not as expensive as anti-illegal-immigration hotheads claim illegal immigration is.  But never mind that.

However . . . with changing technology, it may soon be child's play to give every vehicle a good once-over.  Ergo, when that happens, will the police relinquish this discretionary stop-and-seize power?  Ha.  Not likely.

But, anyway, regardless of how you feel about the policy, the Border Patrol cops in question seem to be acting outside the scope of their authority.  That needs correction.  This preacher guy sounds like he's being a dick without actually being a criminal.  If the state wants to try suing him to recoup dollars wasted in dealing with him (ie, if he is, in effect, harrassing the police), then fine.  But needlessly and causelessly damaging his vehicle and assaulting him is criminal misfeasance.

[Lindsey Buckinghmof]

Oops. Well I felt the same way about the Burger court! *shakes tiny fist*

[mo]

It also says that a roving patrol doesn't need probable cause

Yes, but only within the 100 mile border, I believe.

if the stopping officer is "aware of specific articulable facts, together with rational inferences from those facts, that reasonably warrant suspicion" that a vehicle contains illegal aliens.

which sounds like they're saying you don't need probable cause if you have, uh, probable cause.  Hmm.

When you hand down a decision that lengthy, I guess it's a clue that you really haven't made a decision at all. It's more of a guideline. While it sounds pretty specific, as you point out, it also seems a little contradictory. The court, in its wisdom, trying to balance rights against security and economic interests, has created law so unclear that it creates incidents like this beating. Ah well, it's good for their industry.

However . . . with changing technology, it may soon be child's play to give every vehicle a good once-over.  Ergo, when that happens, will the police relinquish this discretionary stop-and-seize power?  Ha.  Not likely.

The K9 thing has always bugged me. A judge and jury on four legs. And one that can be easily bribed (cheap) and will never talk 

I'm sure the cops will never give up the K9s, even if new technology arrives that could replace their sniffing abilities (if it doesn't exist already).

[random axe]

Yes, but only within the 100 mile border, I believe.

Actually . . . the more I look at it, the less sure I am exactly what specifics they were approving.  The decision says that they specifically previously found that roving stops were not OK within a 100 mile range of the border.  ("We concluded there that random roving-patrol stops could not be tolerated because they [among other things, could occur] 'anywhere within 100 air miles of the 2,000-mile border'."  They found that unacceptably broad. 

They seem to be saying that fixed checkpoints are OK, but roving patrols not so much.  Of course, the law has probably changed since then.


The police use of dogs is really not very fair.  The dog basically acts as a forensic device (not scientifically calibrated or tested to standards, I might add), and acts as a police officer, and acts as a witness against you -- but you can't exactly cross-examine the dog in court.  Dogs are undoubtedly effective, but legally . . . it's a mess.

[mo]

I just ran across this story about a DUI checkpoint in Florida over the 4th of July holiday weekend that resulted in 10 people being arrested and more than 100 drivers being issued traffic citations.

Nobody was arrested for DUI.

It's such a classic example, I had to post it in this thread.