Unchecked Checkpoints

A federal appeals court gives a pass to unconstitutional harassment by border cops.

There are two ways to view the video of Richard Rynearson's March 2010 encounter with U.S. Border Patrol agents at an immigration checkpoint in Uvalde County, Texas. Authoritarians will say Rynearson should have been more cooperative, while libertarians will say the agents should have been less vindictive.

Both perspectives were on display in a February 26 decision by the U.S. Court of Appeals for the 5th Circuit. Unfortunately, the authoritarians won, passing up an opportunity to impose limits on an alarming exception to the Fourth Amendment.

In a free society, armed government agents are not supposed to detain and interrogate people without a good reason. Since 1976, however, the U.S. Supreme Court has recognized catching illegal immigrants as a good reason to stop cars at random, not only at the border but at checkpoints that may be as far as 100 miles inside the country—a zone that includes two-thirds of the U.S. population.

Rynearson, a U.S. Air Force major who works at a military base in southwestern Texas, was tired of being hassled at a checkpoint on Highway 90, almost 70 miles from the Mexican border, so he equipped his car with cameras to record his interactions with Border Patrol agents. That's how we know what happened during the stop that led him to file a federal lawsuit.

The agent who questioned Rynearson—identified only by his last name, Lands, in the lawsuit—had no reason to suspect the driver was an illegal immigrant or was transporting illegal immigrants. According to the Supreme Court, "all that is required" of a motorist in this situation is "a response to a brief question or two and possibly the production of a document evidencing a right to be in the United States."

Andrei Tilin

Two minutes into the stop, Rynearson presented his military ID and his driver's license, placing them against the window on the driver's side door. That should have been the end of the stop, but it continued for a total of 34 minutes.

When Lands told Rynearson the forms of ID he had presented (including the only kind drivers are required to carry) were not good enough, Rynearson offered his U.S. passport. It was still another 23 minutes before he was allowed to go.

Since there was never any serious question about Rynearson's citizenship, it seems clear that Lands and his supervisor, Raul Perez, prolonged the encounter because they did not like his attitude. Rynearson declined to roll down his window all the way, refused to get out of his car, and repeatedly asked if he was free to go and, if not, why he was being detained.

Responding to Rynearson's complaint that Lands and Perez violated his Fourth Amendment rights, 5th Circuit Judges Thomas Reavley and Leslie Southwick departed from the usual procedure in such cases by declining to determine whether that had happened. They said only that the law was not clear enough at the time of the stop for the agents to be held personally responsible.

In an emphatic dissent, Judge Jennifer Walker Elrod said Supreme Court and 5th Circuit rulings prior to the stop made it clear that the agents' detention of Rynearson beyond the time reasonably necessary to ascertain his citizenship was unconstitutional. Elrod added that "one cannot escape the impression" that the drawn-out detention, which included gratuitous phone calls to Rynearson's military base, was "retribution against Rynearson for asserting his rights."

Elrod also took issue with her colleagues' description of Rynearson's behavior as "unorthodox" and "unusually uncooperative," saying "firm assertions of one's rights are far from 'unorthodox' in a Republic that insists constitutional rights are worth insisting upon and that tasks the courts with protecting those rights." By refusing to do so, the 5th Circuit has left innocent Americans vulnerable to harassment by officious officials who demand blind obedience as the price for letting us go about our lives.