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 charlie@charlieunger.com or at (818) 244-8694