The following qualifies as a flat-out awful opinion. The only good news here is that the Ninth U.S. Circuit Court of Appeal split two to one, and when this case is appealed, hopefully the United States Supreme Court will heed the dissent of the one logical judge. This case pertains to U.S. border patrols, and it allows border agents to handcuff ANYONE who is detained, even for a routine customs inspection. The key here is that the customs agent does not have to justify the handcuffing by claiming that the individual he is inspecting creates a threat of danger or presents a risk of flight.
This could be you, folks. As stated by dissenting Judge Richard Paez: “The majority gives the government carte blanche to engage in unnecessarily intrusive measures to detain individuals at the border without any justification whatsoever.”
The majority in this case decided that brief handcuffing does not equate to an arrest. If it was deemed an arrest, then the border agents would have to have probable cause in order to handcuff the individuals.
The frightening aspect of this is that according to this decision, anyone who is to be taken from the main inspection point to a security office can now be handcuffed. There is concern that this decision will not only be applied at the Mexican border, but at international airports as well, as the same theory would apply.
The assistant U.S. attorney handling the case supported this decision, claiming that the handcuffing is very important so that the border patrol agent can feel safe, as he’s usually dealing with people he doesn’t know. The problem with this decision is that it does not require the border agent to feel unsafe as a prerequisite for slapping the cuffs on whoever he wishes to detain.
The individual arrested in this case is an American citizen named Richard Bravo who was driving a truck across the border. The agent with whom he interacted thought Mr. Bravo was acting “overly friendly” and decided to search his truck. Mr. Bravo was then handcuffed and brought to a security office and fifty kilograms of marijuana were found in his truck.
I would have no problem with this decision if the customs officer had an articulable fear that his safety was in danger or an articulable fear that Mr. Bravo was about to make a run for the border. Neither was the case, as the alleged suspicious behavior was Mr. Bravo acting “overly friendly.”
I don’t like the fact that if I want to cross the border, I am now subject to being handcuffed if border agents want a closer look. This is not about having something to hide, but in the State of California, United States of America, no one should be at risk of being handcuffed unless there is a legitimate reason to do so. Hopefully this decision will either be reconsidered or reversed.
Charlie Unger is a criminal defense attorney in the Glendale law firm of Flanagan, Unger, Danis & Grover, and a psychotherapist at the Foothill Centre for Personal and Family Development. Mr. Unger writes a bimonthly column on legal and psychological issues. He can be reached at firstname.lastname@example.org or at (818) 244-8694