The Volunteer Border Patrol: The Inevitable Disaster of the Minuteman Project

AuthorJustin A. McCarty
PositionJ.D. Candidate, The University of Iowa College of Law, 2007; B.A., St. Olaf College, 2003
Pages1461-1492

    J.D. Candidate, The University of Iowa College of Law, 2007; B.A., St. Olaf College, 2003. I wish to thank my family, Vince, Marva, and Shane, and my fiancÈe, Sarah, for their unwavering support. Also, thanks to Professor Stephen Legomsky for his assistance in my efforts to develop this topic. Finally, thanks to the editors and student writers of Volume 91 and 92 for their patience and attention to detail. Particularly, thanks to my editors, Julie Giddings, Brad Price, Ryan Wilson, Brandon Duncomb, and Thad Wilson, for their suggestions and dedication. All remaining errors and omissions are my own.

Page 1461

I Introduction

The United States has approximately seven thousand miles of land bordering Canada and Mexico.1 The duty of patrolling the highly politicized Mexican border falls primarily upon the approximately ten thousand U.S. Border Patrol agents stationed there.2 Despite the tireless work of these agents, the number of undocumented migrants3 residing within the United States is estimated between ten and twelve million.4 The Center for Immigration Studies, a think tank focusing on immigration issues, cites the U.S. Census Bureau's projections that "immigration will cause thePage 1462 population of the United States to increase from its present 288 million to more than 400 million" over the next fifty years.5

Recently, groups of private citizens have begun patrolling the United States-Mexico border in an attempt to supplement the efforts of the U.S. Border Patrol.6 It is unclear whether this initiative by private border-patrol groups is in response to their perception that the federal government is unable to effectively patrol our borders or, alternately, that the federal government lacks real political will to solve the problem. Nevertheless, it is clear that the private individuals volunteering for citizen border patrols are sufficiently motivated, either ideologically or economically, in opposition to illegal immigration to forfeit their weekends to patrol the hot, dry, and sometimes dangerous7 United States-Mexico border. The volunteers' motivation to take on this undesirable task often springs from a belief that undocumented migrants cause increases in crime,8 drugs,9 government expense,10 and lost jobs11 in their local communities and throughout thePage 1463 United States. As in many situations in which emotions run high and opinions are deeply held, this scenario places both the volunteer citizens and the individuals encountering the volunteer citizens at an increased risk of harm.

This Note uses a hypothetical scenario involving a member of one of the private, citizen border-patrol groups and a migrant-who illegally crosses the border into the United States-to discuss the constitutional rights of the migrant to bring a claim against a private border-patrol volunteer. The hypothetical situation begins with Anna, a lone Mexican citizen and resident, who, for the past five years, has lived and worked in the United States without documentation. Each year, Anna returns to her home in Mexico to visit her family by sneaking back across the border. In the present instance, Anna surreptitiously crosses the border from Mexico into Arizona at night, completely unnoticed. She walks north, into the United States, for some time before approaching Beyerville, Arizona, a near-border town. Not wanting to go into the town at night, Anna sleeps at the town's outskirts. At daybreak, she wakes and begins walking toward Beyerville.

Chris, a volunteer of the citizen border-patrol group, the Minuteman Project ("the Project"), spots Anna. As a border resident, Chris has encountered the failure of the U.S. Border Patrol first-hand. His experiences have caused him to become frustrated with the negative effects the United States' immigration policy has had on his family and his community. After calling the Border Patrol, and with only a suspicion that Anna is an undocumented migrant, Chris approaches Anna, hoping to detain her peaceably and wait until the Border Patrol arrives. When Anna resists and tries to get away from Chris, he uses violence to restrain her.12 He then tiesPage 1464 Anna's wrists and ankles and waits with her until the U.S. Border Patrol arrives.

This Note discusses the legal implications of this hypothetical encounter from Anna's perspective and examines whether she would have a constitutional cause of action against Chris arising under the Fourth Amendment. Part II gives the background to this discussion by highlighting two relevant areas of law.13 First, Part II discusses the relevant constitutional law, including the state-action doctrine, along with its public-function, entanglement, and possibly, entwinement exceptions, to determine whether constitutional law could be applied to Anna's hypothetical encounter.14 Second, Part II considers the history of U.S. immigration law regarding whether non-U.S. residents are entitled to make constitutionally based claims.15 Part III discusses the particular characteristics and goals of the Minuteman Project as seen by the Project's admirers and its critics, as well as by members of the Project itself.16 Part IV argues that the members of the Minuteman Project qualify as state actors under the public-function exception to the state-action doctrine and that U.S. immigration law would permit Anna to bring a constitutionally based cause of action in this hypothetical situation against Chris, the hypothetical private border-patrol volunteer.17 Finally, in Part V, this Note concludes by urging the federal government to take measures to stop citizen border-patrol groups from performing border-patrol functions or, at the very least, enact legislation that would train and screen the volunteers, as well as subject the volunteers to greater governmental oversight.18

II Constitutional Law and Immigration Law
A The State-Action Doctrine

The Constitution originally was limited to protecting private citizens only from the actions of the federal government.19 With the enactment of the Fourteenth Amendment, the Constitution became applicable to state and municipal actors as well.20 However, in the Civil Rights Cases, the Supreme Court made clear that the Constitution generally is not intendedPage 1465 to extend its protections to invasions of individual rights by private actors.21 Following its holding in the Civil Rights Cases, the Court has applied the state-action doctrine repeatedly, requiring government action in violation of private constitutional rights before the actor incurs constitutional liability.22 Most recently, the Supreme Court reaffirmed the state-action doctrine in United States v. Morrison, in which the Court dismissed the petitioner's challenge that the state-action doctrine had been overruled by subsequent cases.23

The Court has given several reasons for requiring state action before constitutional liability attaches. The initial reason for the requirement rested upon the Framers' perception of individual liberties at the time they drafted the Constitution.24 The constitutional drafters believed it was unnecessary for the Constitution to protect individuals from constitutional violations by private actors25 because the common law was thought to provide adequate remedy against private actors.26 However, over the years, the common law has not continued to provide remedies for violations of newly articulated individual constitutional rights recognized by modern courts.27 As a result, victims of constitutional violations by private actors28 are left without remedy. On one hand, victims are not protected by the common law because courts have not developed common law on the action in question. On the otherPage 1466 hand, they are not protected by the Constitution because the action in question lacks the requisite state action.29

In modern applications of the state-action doctrine, the Court has given two justifications for the doctrine.30 First, by exempting private actions from liability under the Constitution, the Court alleges that personal autonomy is preserved from governmental overreaching.31 Second, the state-action doctrine protects state and federal governments from liability for activities over which they could have no control.32

While the necessity of government action prior to the invocation of governmental liability is well-settled law, there are two significant exceptions to the doctrine that extend constitutional liability to certain private actors. First, the entanglement exception makes private actors subject to constitutional limitations when private action becomes so entangled with state action that the two become virtually indistinguishable.33 Second, the public-function exception makes private actors subject to constitutional limitations when the private actors are fulfilling a role that is traditionally performed exclusively by the government.34 While it is often the case that the entanglement and...

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