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5/1/2014 9:54:00 AM
ACLU lawsuit alleges civil rights abuses by Border Patrol

Howard Fischer
Capitol Media Services

PHOENIX -- Claiming a pattern of civil rights abuse, the American Civil Liberties Union filed suit Monday to find out exactly how the Border Patrol enforces immigration law far from Mexico.

ACLU attorney James Lyall said his organization wants data about the "roving patrols' of agents that operate far from the border and pull people over. He said complaints to the ACLU show that Border Patrol officer are using race to decide who to stop, something Lyall said is not permitted under federal court rulings.

Potentially more significant, Lyall said there is evidence that agents who are questioning motorists at the interior checkpoints are doing far more than inquiring about the "brief and limited inquiry into residence status,' the legal limits for Border Patrol activities far from the border. He said motorists and their passengers are being not only delayed but harassed

The ACLU wants copies of all internal memos, legal opinions, standards, rules and any policies on the operation of Border Patrol checkpoints. That includes detaining people and searching vehicles as well as the training of dogs who might "falsely alert' to the presence of contraband or concealed people.

But the complaint also seeks information of how often a search actually resulted in finding anything -- or not.

The lawsuit filed in U.S. District Court in Tucson comes after Lyall said the Department of Homeland Security, parent agency of Border Patrol, did not respond to requests for public records under the Freedom of Information Act.

Homeland Security spokesman Peter Boogaard said his agency does not comment on pending litigation.

At the heart of the matter, Lyall said, is that Border Patrol needs to have "reasonable suspicion' that there has been an unlawful border crossing before stopping a vehicle.

He called it a matter of "common sense' that there would be more grounds for such suspicion for someone driving along the border fence than a motorists in Tucson.

"But what we see are innocent people being pulled over 50, 60, 70, sometimes over 100 miles north of the border, essentially on a whim,' he said. "They can't do that. That is against the law.'

But Lyall said the ACLU has documented many cases of that. He said the records being sought should show how much more often it happens that complaints come to his organization.

The checkpoints, he said, present a different legal issue, with federal law allowing only that "limited inquiry' by an agent.

"He cannot search your car without probable cause,' Lyall explained.

"He cannot detain you to interrogate you about matters unrelated to briefly verifying your residence status,' he continued. And Lyall said the U.S. Supreme Court has spelled out that checkpoints cannot be operated to investigate "general criminal wrongdoing,' saying anything beyond that would be a violation of Fourth Amendment rights of individuals to be free from unreasonable search and seizure.

"Yet Border Patrol frequently ignores those limitations,' he said.

The lawsuit, if successful in getting the records, could do more than expose Border Patrol practices to public scrutiny. Lyall said the documents about policies, coupled with records of actual stops, should provide the ammunition needed to force a change in agency practice.

Lyall said a 2012 lawsuit filed by the ACLU against Border Patrol about roving patrols in the state of Washington resulted in a settlement where the agency agreeing to retrain its agents about their Fourth Amendment obligations.

He said one thing that the records may do is help the ACLU decide when to file suit on behalf of individuals who may have been improperly stopped or detained. The problem, Lyall said, is the number of complaints.

"The challenge is to narrow down which plaintiffs and which cases to bring because there are so many rights abuses committed by Border Patrol in the interior of the country,' he said. "And so we have to pick our spots.'

Lyall said the first step is getting the policies to see if they are even being followed.

"But you also need to see the data, what is happening on the ground,' he said. "And there's really no way to do that without getting at the data.'

That includes where people are being pulled over, why, who is being stopped and what are the circumstances.

The ACLU is not the only plaintiff in the lawsuit. Lyall also is representing Derek Bambauer and Jane Yakowitz Bambauer, law professors at the University of Arizona who have written articles about public records and related stories.

Lyall noted that this lawsuit seeking data about who is stopped comes the same day that U.S. Attorney General Eric Holder announced his agency would be gathering data about stops, searches and arrests by local police to determine if there is evidence of racial profiling. He said the federal government should be just as concerned about that within the Border Patrol which he described as the largest national police force in the country.

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