Court Allows Case Against Border Patrol

A federal appeals court in San Francisco ruled Tuesday that a case alleging civil liberties violations by the U.S. Border Patrol in highway stops can go forward as a class action.

The U.S. 9th Circuit Court of Appeals held 2 to 1 that Latinos are entitled to a trial on their charges that Border Patrol agents have engaged in a pattern and practice of stopping motorists of Latino appearance without reasonable suspicion of a crime on the highways of southern Arizona.

The majority noted that the case record indicated that Border Patrol agents “have stopped numerous people of Hispanic appearance, some repeatedly. Agents have stopped two Arizona residents . . . at least three times each.”

The judges added that one Arizona commuter had been stopped many times by Border Patrol agents. Each time, the agents discovered no evidence of wrongdoing, the judges said.

The court stressed that many Border Patrol reports of traffic stops listed strikingly similar and repetitive reasons for pulling over various people. “Indeed, they are identical except for such details as the time of day, the color of the vehicle, etc.”

In his majority opinion, John S. Rhoades Sr. noted tartly that in earlier cases involving Latino motorists the 9th Circuit had expressed skepticism about the veracity of reports with such similar, duplicative language.

“This decision is an enormous deal,” said Armand Salese, the Tucson attorney who represents the motorists. “The Hispanic community cannot drive between Nogales, Tucson and Phoenix without a good chance they will be stopped by a Border Patrol agent, simply because they look like Mexicans,” Salese said.

The plaintiffs are attempting to compel the Border Patrol, the uniformed arm of the Immigration and Naturalization Service, to change its policies on making random highway stops in an eight-county area of Arizona, Salese said.

He said the case was based on witness statements and government records, including Border Patrol reports and telephone logs.

Salese said those records demonstrated that of 534 highway stops made in a three-month period in 1995, the Border Patrol had to release all but 14 of the people pulled over on suspicion of criminal activity. He said those figures offer strong evidence that the agents were not adhering to proper constitutional standards for making a stop.

The Times was unable to obtain immediate comment on the ruling from Border Patrol officials in Arizona or a Justice Department lawyer in Washington who argued the case.

Judge Joseph Sneed issued a strong dissent, saying that if the plaintiffs prevailed it could result in the government micro-managing Border Patrol operations, which could lead to chaos.

Tuesday’s ruling on the case filed by motorists Panchita Hodgers Durgin and Antonio Lopez reversed a June 1997 decision of U.S. District Judge John M. Roll in Tucson.

Roll threw the case out in response to a summary judgment motion by the government. He said the plaintiffs lacked standing to bring the case and concluded that the litigation would be unmanageable because of a “potentially staggering” number of witnesses.

However, a majority of the appeals court panel disagreed on both points. The majority said the plaintiffs had standing because of several factors.

For instance, Roll said the case was unsuitable for a class action because the circumstances of the traffic stops cited in the case varied. However, Judges Rhoades and James R. Browning disagreed even though they acknowledged there were some differences in the plaintiffs’ encounters with Border Patrol agents.

A Border Patrol agent stopped Durgin in October 1994 while she was driving home from Nogales to Rio Rico. The agent asked her for evidence of citizenship, searched the hatchback of her AMC Pacer, found no contraband and let her go home. Another agent stopped Lopez in January 1995 while he was driving north on Interstate 19. The agent searched the trunk of Lopez’s Chrysler Dynasty, found no contraband and permitted him to depart.

“It is immaterial why or under what circumstances the agents stop motorists, as long as they stop them without reasonable suspicion,” Rhoades wrote for the majority. “What is material are the factors that plaintiffs allege the agents do not rely on: ‘specific articulable facts’ that give rise to ‘a reasonable suspicion . . . that the vehicle contains aliens who may illegally be in this country.’ ”

Moreover, the majority held that the plaintiffs had made a credible showing of the threat of future injury.

“Plaintiffs merely must embark on a routine journey and pass a Border Patrol agent who, pursuant to the alleged pattern and practice, decides to stop them for no legitimate reason. In these circumstances, a credible threat of future injury hangs over plaintiffs’ heads every time they drive on these highways,” Rhoades wrote.

In his dissent, Sneed wrote: “It is unfortunate, but where the incidence of crime is high, some innocent individuals will be suspected. That is the price that the high rate of crime has placed on our society.”

But the majority retorted that Sneed’s “mistaken conclusion ignores the fundamental truth that the determination of constitutional limitations should never rest on the social or the criminal climate of the times but must rest on whether the Constitution has been violated.”