Lawsuit Against Border Patrol Tests Applicability of Fourth Amendment Protections Across a National Border

800px-USA_Santa_Elena_Canyon_TX.jpgA lawsuit filed in a Brownsville federal court alleges violations of Fourth Amendment protections against unreasonable searches and seizures, based on the alleged shooting of a man by a Border Patrol agent. What makes this case, Cazares Santillán, et al v. United States, et al, unusual is that the victim was in Mexico at the time of the shooting, while the alleged shooter was across the Rio Grande on U.S. soil. The U.S. Supreme Court has found that Fourth Amendment protections do not extend to law enforcement actions taking place entirely abroad, but this case is one of the few to address incidents that crossed a national border.

Thirty year-old Juan Pablo Perez Santillán was shot and killed on July 7, 2012, while he was standing near the south bank of the Rio Grande in Matamoros, across the river from the Texas town of Brownsville. Santillán was reportedly giving instructions to a group of people about how to swim across the river into U.S. territory. As a group was reaching the U.S. bank of the river, Santillán waved his arms to warn them that U.S. Border Patrol agents were approaching. At that point, someone believed to be an agent of the Border Patrol shot Santillán in the chest with a long-range rifle, killing him. Santillán’s brother yelled for help, and a Border Patrol agent allegedly responded by saying, in Spanish, “let the dog die.” The Border Patrol has reportedly acknowledged that an agent fired across the river, claiming self-defense, but has not acknowledged the shooting of Santillán. This was the fourth fatal shooting across the Rio Grande to occur in the past two years.

Santillán’s family filed suit against multiple John Doe agents, the Border Patrol, the Department of Homeland Security, and other government agencies. They allege that the individual agents violated Santillán’s Fourth and Fifth Amendment rights, and that the government agencies fostered and tolerated a culture of abuse against Mexican citizens and Latinos that enabled the agents. The U.S. Supreme Court recognized a cause of action for Fourth Amendment violations by government agents in Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388 (1971). The shooting of Santillán, according to the plaintiffs, constituted an unreasonable search and seizure.

The Supreme Court ruled that the Fourth Amendment does not cover searches or seizures of property belonging to nonresident aliens located outside U.S. territory in United States v. Verdugo-Urquidez, 494 U.S. 259 (1990). That case involved a search, conducted by Drug Enforcement Administration (DEA) agents, of several properties in Mexico belonging to a Mexican national suspected of drug smuggling. The Court held that, because Verdugo-Urquidez had no “voluntary attachment to the United States,” the Fourth Amendment did not apply. Id. at 274-275A.

The difference between Verdugo-Urquidez and the present case is the fact that the alleged shooter was in the United States at the time of the incident. The family of a 15 year-old shot and killed under similar circumstances near El Paso filed a federal lawsuit against the Border Patrol, DHS, and others in January 2011. The causes of action in Hernandez, et al v. United States, et al included constitutional violation claims under Bivens and claims under the Federal Tort Claims Act. A judge dismissed the case, and the plaintiffs’ appeal is pending before the Fifth Circuit.

Michael J. Brown, a board-certified criminal defense attorney, fights for the constitutional rights of Texas defendants, making certain that law enforcement and the courts abide by all the rules and procedures of the criminal justice system. To learn more about how we can assist you in your legal matter, contact us online or at (432) 687-5157.

Web Resources:

Plaintiffs’ Original Complaint (PDF file), Cazares Santillán, et al v. United States, et al, Case No. 1:12-cv-213, U.S. District Court, Southern District of Texas, Brownsville Division, October 23, 2012
Plaintiffs’ Original Complaint (PDF file), Case No. 3:11-cv-00027-DB, Hernández, et al v. United States, et al, U.S. District Court, Western District of Texas, El Paso Division, January 17, 2011
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Use of Unmanned Drones by Law Enforcement Raises Fourth Amendment Concerns, Texas Criminal Lawyer Blog, October 5, 2012
U.S. Supreme Court Will Consider Case of Police Detention Related to a Search Warrant, Texas Criminal Lawyer Blog, September 14, 2012
Photo credit: ‘USA Santa Elena Canyon TX’ by Daniel Schwen (Own work) [CC-BY-SA-2.5], via Wikimedia Commons.