Ambar Carvalho, the Sliding Scale Approach to Protecting Nonresident Immigrants Against the Use of Excessive Force in Vilation of the Fourth Amendment

• Jurisdiction: United States,Federal
• Publication year: 2008
• Citation: Vol. 22 No. 1

THE SLIDING SCALE APPROACH TO PROTECTING NONRESIDENT IMMIGRANTS AGAINST THE USE OF EXCESSIVE FORCE IN VIOLATION OF THE FOURTH AMENDMENT

INTRODUCTION

Maria Martinez-Aguero, a Mexican resident and national, traveled from Mexico to the United States under a valid visitor visa once a month in order to help her aunt obtain Social Security.¹After the Immigration and Naturalization Service²decided to issue a new type of visitor visa, Martinez- Aguero's visa became invalid.³Officials at the U.S. consular office informed Martinez-Aguero that she required a new visitor visa and, in the meantime, could only travel into the United States if she obtained a stamp on her old visa.⁴Martinez-Aguero obtained the stamp on her old card and traveled into the United States with no problem for the next three months.⁵Three months later, Border Patrol agents stopped a bus in which Martinez-Aguero was traveling en route to the United States for one of her regular visits.⁶According to Martinez-Aguero, after she and her aunt were ordered to get off the bus and show their documents, Officer Gonzalez, a Border Patrol agent, told her that she could not enter the United States due to her expired visa.⁷Martinez- Aguero noted that Officer Gonzalez became violent with her upon hearing her make a snide remark about him.⁸Another officer then escorted Martinez- Aguero to an office and handcuffed her to a chair, where she suffered an epileptic seizure.⁹After her encounter with the Border Patrol agents,

Martinez-Aguero experienced recurring epileptic seizures, in addition to memory problems, back injuries, and constant pain.¹⁰

Martinez-Aguero brought a Bivens civil rights action¹¹against Officer

Gonzalez for use of excessive force in violation of the Fourth Amendment.¹²

Officer Gonzalez filed a motion for summary judgment asserting qualified immunity.¹³The Fifth Circuit ultimately denied Gonzalez's motion, holding that under the Fourth Amendment, an immigrant stopped at the U.S. border has the right to be free from the use of excessive force by U.S. law enforcement officers.¹⁴However, an immigrant must meet certain criteria before a court may find that the Fourth Amendment protects that immigrant against the use of excessive force.¹⁵First, the immigrant must be physically present in the United States; second, the immigrant must establish a "substantial connection" with the United States.¹⁶

Precedent supports the argument that "the people" protected by the Fourth Amendment is not limited to U.S. citizens. In United States v. Verdugo- Urquidez, the Supreme Court made clear that "the people" protected by the

Fourth Amendment includes immigrants voluntarily¹⁷present in the United States, provided that they fall within "a class of persons who are part of a national community or who have otherwise developed sufficient connection with this country to be considered part of that community."¹⁸The Verdugo-

Urquidez holding is problematic because it allows U.S. law enforcement officials to "have their cake and it eat, too" by permitting U.S. law enforcement officials to violate the law, as Justice Brennan noted in his dissent.¹⁹

The major problem with the Verdugo-Urquidez opinion-and with the subsequent opinion in Martinez-Aguero-is that the court never establishes whether an immigrant is required to have a "sufficient connection" or a "substantial connection" to the United States in order to be protected by the Fourth Amendment. Chief Justice Rehnquist's opinion in Verdugo-Urquidez appears to set forth a "substantial connection" test,²⁰yet he defines "the people" pursuant to a "sufficient connection" test.²¹The other Justices discuss a "sufficient connection" test in their opinions.²²According to Brennan's dissent in Verdugo-Urquidez, "[t]he Court admits that 'the people' extends beyond the citizenry, but leaves the precise contours of its 'sufficient connection' test unclear."²³As such, when the Fifth Circuit relied on the

Verdugo-Urquidez opinion in deciding Martinez-Aguero, it confused the "sufficient connection" test used to define "the people" protected by the Fourth Amendment and the "substantial connection" test an immigrant must satisfy in order to receive Fourth Amendment protection against excessive force. Accordingly, the Fifth Circuit addressed the wrong issue in Martinez-Aguero. The question should not have been who are "the people" protected by the Fourth Amendment; instead, the issue should have been to what extent the people are protected by the Fourth Amendment.

This Comment asserts that the test for determining when the Fourth Amendment protects a nonresident immigrant should be a sliding scale incorporating both the "sufficient connection" test used in the Verdugo- Urquidez opinion to define "the people" protected by the Fourth Amendment and the "substantial connection" test used in Verdugo-Urquidez to determine when the Fourth Amendment applies extraterritorially. A sliding scale would best determine when nonresident immigrants should be protected by the Fourth Amendment by affording the most protection to people with the greatest level of connection to the United States (e.g., U.S. citizens) and the least protection to people with no connection to the United States (e.g., nonresident immigrants illegally present). However, the sliding scale should not only address the level of connection a person has to the United States; it should also take into account the level of force used against the person asserting a Fourth Amendment violation, affording the most protection to people who experience the most egregious uses of force and the least amount of protection to people who experience minor or necessary uses of force.

Part I of this Comment discusses violations of the Fourth Amendment resulting from excessive use of force by U.S. officials. Part II highlights the nature and history of the U.S.-Mexico border, the problem of violence at the border, and the Border Search Exception to the Fourth Amendment. Part III focuses on the extraterritoriality principle and the current definition of "the people" protected by the Fourth Amendment in light of Martinez-Aguero. Part IV addresses why an international Fourth Amendment likely would be improper and impractical and proposes a sliding scale method for protecting nonresident immigrants from the use of excessive force in violation of the Fourth Amendment. Finally, this Comment reconciles the different areas of law that may address Fourth Amendment protection of nonresident immigrants by setting forth the parameters of the sliding scale test.

I. THE FOURTH AMENDMENT: EXCESSIVE USE OF FORCE CLAIMS

Generally, the Fourth Amendment protects against unreasonable searches and seizures.²⁴U.S. government officials who use excessive force in conducting searches and seizures violate the reasonableness requirement of the

Fourth Amendment.²⁵The common law provided U.S. law enforcement officials with a great deal of leeway in conducting searches and seizures, allowing officials to use deadly force on all felony suspects regardless of the circumstances.²⁶However, the Court has moved away from focusing on whether the crime at issue was a felony and now addresses whether an officer's actions amount to excessive force.²⁷

A. Abolishing the Common Law Rule

In Tennessee v. Garner, the question before the Court was whether a Tennessee statute authorizing the use of deadly force against an unarmed, fleeing suspected felon was constitutional.²⁸The common law permitted the use of deadly force to prevent the escape of suspected felons, regardless of the surrounding circumstances.²⁹In view of the Court's determination that "the killing of a fleeing suspect is a 'seizure'³⁰under the Fourth Amendment,"³¹the Court found the Tennessee statute unconstitutional because a police officer's use of deadly force in attempting to capture a non-violent suspect violates the Fourth Amendment.³²

In deciding that the police conducted an unreasonable seizure violative of the Fourth Amendment, the Court conducted a balancing test, weighing the "nature and quality of the intrusion on the individual's Fourth Amendment interests against the important governmental interests alleged to justify the intrusion."³³The primary question in applying the Fourth Amendment balancing test is whether under the totality of the circumstances, the seizure at issue was justified.³⁴The Court in Garner determined that the police officer's use of deadly force was not justified because the suspect's interest in his own life outweighed the government's interest in "effective law enforcement." ³⁵

Consequently, the common law rule was abolished in favor of the Fourth Amendment "totality of the circumstances" balancing test. This holding does not, however, completely bar the use of deadly force by police officers. Instead, the narrow holding in Garner set a standard consisting of three elements necessary to justify a police officer's use of deadly force to restrain a fleeing suspect.³⁶Soon after, the Court expanded the three-factor test set forth in Garner, developing a test applicable to situations in which the crime was not necessarily a felony and the force used was not necessarily deadly.

B. Graham v. Connor and the "Objective Reasonableness" Standard

In Graham v. Connor, the plaintiff brought a Sec. 1983 lawsuit, alleging that officers used excessive force during an investigatory stop.³⁷According to the plaintiff, the officers' actions caused him to suffer a broken foot, cuts, bruises, and a shoulder injury.³⁸The Court determined that Fourth Amendment excessive force claims must be analyzed under an "objective reasonableness" standard on a case-by-case basis, paying particular attention to three factors: "the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight."³⁹

The Court pointed out that reasonableness must be assessed...