America's Internal Checkpoints
Refuseniks fight back against feds demanding papers
During a routine trip from San Diego to Phoenix in 2009, Pastor Steven Anderson was stopped at an internal immigration checkpoint about 70 miles from the Mexican border. A stern-looking Border Patrol agent asked Anderson to provide proof of citizenship and requested permission to search his car.
The persistent pastor declined both, citing his Fourth Amendment protection against unreasonable searches and his Fifth Amendment right against self-incrimination. He then asked to be allowed to go on his way. The request was denied.
After a period of dithering, agents announced that a police dog had alerted to potential contraband in the vehicle. They instructed Anderson to pull over into a secondary inspection area. The pastor repeatedly refused, at which point a Border Patrol agent and a state police officer simultaneously broke both windows of his car and shot the pastor with Tasers from each side, delivering lengthy and repeated shocks while Anderson repeatedly screamed in agony.
The brutality was captured on video. Anderson's hand-held camera recorded events until moments after he was shocked, and CCTV footage captured much of what came afterward. In recorded testimony the following day, Anderson described how one of the agents involved with the incident shoved the pastor's head into the shards of broken window glass while dragging him from the car, and forced him to the ground. Other agents joined the action, with one repeatedly beating Anderson with a baton.
Lying helplessly on the ground, the pastor was again shocked with Tasers. After several minutes, the agents finally pulled up his bloodied body and took the broken man into custody.
Anderson is a hero to the members of a growing national cause. A decentralized movement of refuseniks is increasingly fighting back against the Border Patrol's shocking internal checkpoint system. Through civil disobedience, legal challenges, and generous helpings of YouTube, these ID scofflaws may be getting bloody, but they are actively challenging the constitutionality of a system most Americans don't realize exists.
Papers, Or Else
Noncitizen permanent residents over 18 years old are required to carry green cards when they travel within the United States, according to the Immigration and Nationality Act. Those caught without one face a maximum fine up to $100 and/or imprisonment for up to 30 days for each offense. But you can't tell the difference between a citizen and green card holder without seeing some kind of government identification. Given Americans' historical antipathy toward national ID requirements, which are routine in most of the rest of the world, it comes as a surprise to many that they can be asked to provide proof of citizenship even when venturing nowhere near an international border.
More than 70 immigration checkpoints manned by U.S. Customs and Border Protection (CBP) now operate well inside U.S. territory, as far away from the Mexican frontier as Sarita, Texas-nearly 90 miles north of the nearest major border crossing. The agency has used internal traffic checkpoints since 1924. Since the 9/11 attacks, the Border Patrol's mission has increasingly emphasized preventing terrorists and illegal weapons from entering the United States. Some of the checkpoints are on roads that never intersect the border. No reasonable suspicion or probable cause or consent is required for these indiscriminate detentions. Travelers usually comply politely, not knowing-and likely not caring-that by doing so they are waiving their constitutional rights.
But not everyone plays along. As a scouring of YouTube videos, border-state news archives, and court cases can attest, hundreds of resisters, mostly males in or around their thirties, are refusing to comply, capturing the often nerve-rattling conflicts on their smartphones. They may be lone dissidents, but they have created a robust online community of checkpoint constitutionalists.
The resulting videos are never exactly the same, but they tend to follow a pattern. CBP agents, at times accompanied by area law enforcement officers, await as the motorist pulls up. Drug-sniffing dogs are often led by another CBP agent around the line of vehicles as they wait in a queue. Drivers are instructed to roll down their window if they haven't already. The CBP agent then firmly asks the driver, along with any other passengers, if they are United States citizens.
This is when the confrontation begins.
"Am I being detained, agent?" is the common refusenik reply.
"No you are not being detained, sir," the agent replies. "We need to know if you are a United States citizen."
The scene is usually tense. Drivers are visibly nervous in many of the videos. It's not easy to stand up for your rights on a lonely desert road when surrounded by German Shepherds and heavily armed men in green, military-looking uniforms.
"If I'm not being detained, then I'm free to go, correct?"
Agents are not accustomed to non-compliance. "You are not free to go until I can verify you are a United States citizen," goes the common reply.
"Well, if I'm not free to go, does that mean I am being detained?"
At this point agents will sometimes declare that the driver is indeed being detained, but only temporarily. The refusenik will then ask why he is being detained, and request to see a supervisor. The Border Patrol cop, his supervisor, and other law enforcement officials who sense an emerging situation will gather around the vehicle. Traffic builds up. Blood pressure rises.
"You are being detained temporarily for immigration purposes. We need to know if you are a United States citizen. Please answer the question."
The driver may then point out to the agent that at least some reasonable suspicion of criminal activity is required in order for any further detention to be lawful. If the refusenik is lucky, the built-up traffic or just the ongoing hassle of the exchange will pressure the agent to wave the driver on through.
If he is unlucky, the border cop may declare that he indeed has probable cause. At this point, the motorist has little choice but to comply with the demand to pull into secondary and submit to a search.
I have traveled several times through the internal immigration checkpoint on Highway 7 northbound from Brownsville, Texas. It's about 85 miles from the nearest international crossing, and hundreds of cars pass through each day without ever having taken a recent trip south of the border. Taking my cue from other refuseniks, I refuse to cooperate with CBP agents' questioning. I do not inform the agents that I am documenting the exchange.
Many of my initial conflicts were much like the generic one described above, resulting in agents eventually letting me through without me answering their questions. But after several such encounters, I experienced something different.
As I pulled into the checkpoint and refused to acknowledge my citizenship, a drug dog was led around my car. After the agent declared that the dog alerted to my vehicle, I relented and pulled into the secondary inspection area. I recorded the entire encounter with my phone. The agents led the dog throughout my car for several minutes until the search ended with no contraband discovered.
I doubted that the canine truly alerted to my vehicle so I filed a Freedom of Information Act (FOIA) request, seeking all video footage captured during the time and location of my seizure for evidence that the dog detected something in my vehicle. The CBP website clearly states that a dog will "alert" by sitting next to the point of interest. I wanted proof that the dog sat.
Several weeks later I received a letter from the FOIA division officer requesting clarification. After I responded with clarifications, several weeks later they sent me another letter indicating there was no video footage because the CBP deletes video after 30 days.
The Original Refusenik
The rise in anti-checkpoint activism can be traced to an Arizona man named Terry Bressi, who was forcibly removed from his vehicle and arrested at an internal checkpoint on the Tohono O'odham Reservation in southern Arizona on December 20, 2002, about 20 to 30 miles from the border. This was the first of many encounters with an internal checkpoint.
Bressi, who works at telescope installation sites as chief engineer for the University of Arizona's Planetary Sciences Department, was traveling back to Tucson after working at a remote installation in the desert. The checkpoint was a joint task force operation including local police and the CBP. When Bressi approached the cops, he was skeptical about the order to provide ID. He hadn't crossed any international border, hadn't committed any crime, and was just traveling back from an Arizona worksite to his Arizona home.
Bressi repeatedly asked why he had been stopped, and he refused to show identification. Eventually he was told to turn off his vehicle, remove the ignition key, and place his keys in the car in a visible area. He complied.
Then, according to a video Bressi made shortly after the incident occurred, "The officers opened my door, undid my seatbelt, grabbed me around my armpits, pulled me out of the vehicle, laid me down on the ground, handcuffed my hands behind my back and dragged me off to the side of the road."
Bressi was forced to lie on the side of the road in the dirt for more than half an hour. Officers removed his wallet from his pants to inspect its contents. One of them told Bressi that if he signed a citation, he could go free. If not, well, then it was off to jail. He signed, and was charged with two misdemeanors: failure to follow orders of a traffic control officer and failure to show a driver's license upon request.
The court dismissed the charges against Bressi without prejudice, based on a technicality. The Tohono O'odham Police Department (TOPD) had violated state law by failing to file a copy of the complaint with the court prior to the court date. Roughly six months later, Bressi decided to file a claim for a civil rights violation. The TOPD then re-filed the original charges against Bressi.
Several months later, all the re-filed charges against Bressi were dismissed with prejudice, due to the TOPD's inability to "deliver the citation to the Court" before that scheduled court date as well.
Bressi received considerable press coverage of his arrest and subsequent suit. He created a website, checkpointusa.org, dedicated to "exposing the police state-one checkpoint at a time." It features his videos along with dozens and dozens of pages of analyses of related Supreme Court cases and the story of his legal travails.
In the decade since his first stop, Bressi has recorded dozens of confrontations with CBP agents at internal immigration checkpoints. He has outfitted his vehicles with multiple permanent video cameras recording various angles and sounds. Among the thousands of visits to his blog have been hundreds from the domain names of the Department of Homeland Security (which oversees the Border Patrol), the U.S. Treasury, and the Justice Department.
The major issue in Bressi's civil rights lawsuit was whether the defendants illegally expanded the scope of the checkpoint to include general law enforcement. By law, a checkpoint must serve a specific purpose, such as immigration control, and not the vague possibility of more general criminality.
The Supreme Court ruled in City of Indianapolis vs. Edmond (2000) that roadblock checkpoints cannot be conducted by police if the "primary purpose is to detect evidence of ordinary criminal wrongdoing." That case revolved around a series of traffic checkpoints implemented by the city of Indianapolis in which the officer would ask the driver to produce license and registration as a pretext for looking for signs of impairment. The high court majority said that operators of any checkpoint must have the "usual requirement of individualized suspicion where [they] seek to employ a checkpoint."
According to Bressi, the officer on scene before his arrest informed him that the checkpoint was for drunk driving. Since when do U.S. Customs and Border Patrol agents enforce sobriety laws?
After what Bressi describes on his blog as more than "eight long years, hundreds of legal documents and several court challenges (including a reversal by the 9th circuit court of appeals)," his lawsuit was finally given a court date. Before the case made it to trial, Bressi was offered a settlement of $210,000. In June 2012, he took the money.
What good came of the eight-year legal battle besides the cash? Bressi points out that the Tohono O'odham Police Department is in tribal Native American grounds and therefore have been operating under the assumption of immunity from federal civil rights laws. Bressi's victory in the 9th Circuit limits, if not prohibits, tribal police from hiding behind sovereign immunity while seizing people at internal checkpoints along state highways.
Bressi thinks the settlement and the 9th Circuit partial reversal work as an important demonstration project, showing how others who wish to fight police overreach "can be successful at doing so in both the court of public opinion and court of law." And the legal groundwork could be used for future lawsuits.
As Bressi's lawyer David Euchner stated in a brief announcement after the court's ruling: "We didn't win on every claim, but we won on the most important part-that if a tribal police department wants to run a 'sobriety checkpoint' on a state highway right-of-way, thereby expecting non-Indians to travel on it, the tribal police must first ask if the driver is Indian or non-Indian, and then non- Indians who are not obviously impaired must immediately be allowed to go on their way. What the tribal police did with Terry was unconstitutional, and now it's a senior jurist who literally wrote the book on Indian Law who agrees with us."
Checkpoint Constitutionality
As more people learn that refusing to cooperate at internal checkpoints is an option, the movement grows. A search on YouTube for "internal checkpoint refusal" produces thousands of results. Many of the videos are set in states that border Mexico; some videos have hundreds of thousands of views.
The footage ranges from the mundane to the outrageous. One agent casually asks a driver stopped at an internal checkpoint if he minds if the agent takes a look in his trunk. The traveler says he does in fact mind. "Is there any reason to believe I've broken immigration law? What's the reason you want to check my trunk?"
The agent, somewhat flummoxed by this questioning of his authority, responds with, "It's just…your car is dirty." Going too long between carwashes doesn't traditionally rise to the level of probable cause.
Unfortunately, not all the refusniks understand the complete legal picture governing checkpoints. Most defend their lack of cooperation by citing the Fourth Amendment. But they usually struggle to come up with any more legal analysis on the spot.
Internal checkpoints are legally separate from checkpoints on international borders or their "functional equivalent," such as international airports. At these border crossings, CBP agents have wide latitude to search and seize, absent any warrant or probable cause. They can also unilaterally refuse to admit international travelers. Internal checkpoints are more complicated.
In a pivotal 1976 Supreme Court case, U.S. v. Martinez-Fuerte, the defendant was caught transporting illegal aliens through an internal immigration checkpoint located on Interstate 5 between Oceanside and San Clemente in California, about 90 miles from the border. After the immigrants were discovered and admitted their status, Amado Martinez-Fuerte was charged with two counts of illegally transporting aliens. A court majority opined that "brief questioning of [the motor vehicle's] occupants even if there is no reason to believe that the particular vehicle contains illegal aliens," is legal.
In the Supreme Court case United States v. Montoya de Hernandez (1985), the court further ruled that "automotive travelers may be stopped at fixed checkpoints near the border without individualized suspicion, even if the stop is based largely on ethnicity." Flowing from this case is the assumptive creation of the "border search exception" allowing for warrantless searches within 100 miles of the border. This Fourth Amendment-lite zone encompasses the place of residence for nearly two-thirds of the U.S. population.
Martinez-Fuerte held that internal checkpoints were considered to be a functional equivalent of a border crossing only if the government could prove with reasonable certainty that traffic passing through was international in character and would be comprised of only a "negligible number of domestic travelers."
The Border Patrol's Inspector's Field Manual governing internal checkpoints has been public information since 2008, thanks to a successful FOIA request from immigration attorney Charles M. Miller. According to Section 18.7 of the manual, before an inspector may constitutionally detain a traveler at a non-entry checkpoint, the inspector "must have reasonable suspicion that the person is an alien and is illegally in the United States." The manual goes on to say: "This higher degree of suspicion arises generally in questioning persons encountered in and around the port who are awaiting persons referred to secondary. This suspicion is based on questioning of alienage alone and also involves specific articulable facts, such as particular characteristics or circumstances which the inspector can describe in words."
If, according to the CBP's guidelines, inspectors shall not indefinitely detain a traveler without at least reasonable suspicion, the collection of videos online clearly shows agents breaking their own rules.
Many travelers don't realize that complying with the Border Patrol's questioning can be completely optional. It is well within their Fifth Amendment rights to remain silent. If this right is exercised, the agent does not have the power to further detain them absent consent, reasonable suspicion, or probable cause that the traveler is committing a crime. While the Supreme Court ruled in Martinez-Fuerte that temporary detention at internal checkpoints is not an unconstitutional encroachment, the detention must not be indefinite and may only be for a reasonable amount of time.
What does that mean in practice? When I asked Bill Brooks, a U.S. Customs and Border Protection spokesman, he didn't answer directly. Instead he cited the Supreme Court's opinion in Martinez-Fuerte that "very brief detention" of motorists does not constitute an unreasonable search or seizure. He added, "Under normal circumstances this takes just a short period of time. In unusual instances, agents will detain a member of the public long enough to establish their citizenship." CBP agents "may question the occupants about their citizenship, place of birth, and request document proof of immigration status, how legal status was obtained and make quick observations of what is in plain view in the interior of the vehicle."
Denise Gilman, co-director of the immigration clinic at the University of Texas School of Law, argues that a reasonable amount of time is roughly 20 minutes.
Although an agent may "request" documentary proof of immigration status, it is not a legal requirement to produce such proof unless the agent has obtained probable cause or at least has reasonable suspicion that the traveler is committing an immigration crime. Simply passing through one of these checkpoints shouldn't qualify as such suspicion. In Martinez-Fuerte, the court declared, "We have held that checkpoint searches are constitutional only if justified by consent or probable cause to search."
Still, many refusenik videos show officials forcibly removing travelers from their cars absent individualized suspicion, then removing their wallets in search of identification.
Federal and local law enforcement agencies have become skilled at circumventing these legal strictures through the seeming manufacture of probable cause. A Government Accountability Office study published in 2009 shows there were 3,540 drug-related seizures at southwestern checkpoints in 2008. That same year, southwestern checkpoints saw 16,959 apprehensions of illegal aliens. A key method is through canine sniffing. Internal checkpoints, particularly permanent installations, typically employ drug- and bomb-sniffing dogs that patrol nearly every vehicle passing through. By using canines, the CBP is pushing the line between stops for immigration purposes and "ordinary criminal wrongdoing." The immigration portion of the stop becomes a mere pretext to establish a probable cause for searching the car or driver.
Civil libertarians point out that deploying these dogs appears to run against the City of Indianapolis vs. Edmond principle that checkpoints be conducted for a specific and not general area of wrongdoing. The Border Patrol is "pushing that line very hard," David Loy, legal director of the American Civil Liberties Union's San Diego chapter, said in a March 2013 interview with KPBS-TV. Suspicionless checkpoints, Loy said, "are the hallmark of a police state, not a free society."
CBP's own rules seem to incorporate Edmond in that internal checkpoints are supposed to be used for "determining citizenship of those who pass through" and "not for the general search for those persons or vehicle." But the preponderance of canines at internal checkpoint stops would seem to contradict these guidelines, since dogs have no demonstrated ability to sniff out the difference between an American and a Mexican.
Checking the Checkpoints
Many of those fighting back against suspicionless checkpoints are not taking their cases to court, engaging instead in direct civil disobedience. The vast majority of the YouTube videos show the agent allowing a traveler to continue on his way without extracting information about his citizenship status. Arrests are very rare; beatings like Pastor Anderson's are rarer still. Each video becomes a small, inspiring victory against overweening state power.
Some policies have been changed as a result of this small revolt. In Blaine, Washington, near the Canadian border, Border Patrol agents attempted to expand their internal checkpoint operations. But the plans triggered significant outcry from activists; from Rep. Norm Dicks, a Democrat from the Olympic Peninsula area; and from nearly 400 residents who showed up to a 2008 forum to protest the checkpoints. The agency soon cut, rather than expanded, its Northwest Washington operation.
Refuseniks who once were routinely hassled for declining to cooperate with Border Patrol are now recording agents waving them through without a word of questioning. Bressi believes if enough people are willing to mobilize and speak against checkpoints, "enough lawmakers who are also against them will feel empowered to either prevent the authorization of new checkpoint authority or roll back existing authority."
Technology, Bressi argues, is the key to successfully standing up for your rights. It shows the world how the authority vested with police officers and federal agents is being systematically abused.
After being tased and beaten, Pastor Steven Anderson was charged with two misdemeanors: "obstructing the highway" and "resisting an order directing, regulating, or controlling a motor vehicle." Following a court battle, Anderson was cleared of all charges in August 2010. Shortly before then, Anderson filed a civil lawsuit against the two agents who tased him.
For now, America still awaits a champion who can win a major victory against internal checkpoints at the Supreme Court. But the minor everyday victories on YouTube are slowly helping to restore our constitutional rights.