Reversion Back to a State of Nature in the U.s. Southern Borderlands - Jessica Conway

• Citation: Vol. 56 No. 4
• Publication year: 2005

Comment

Reversion Back to a State of Nature in the United States Southern Borderlands: A Look at Potential Causes of Action to Curb Vigilante Activity on the United States/Mexico Border^*

I. Introduction

Since the late 1980s and early 1990s,¹ groups of concerned citizens have banded together to pick up where the federal government failed and to combat illegal immigration at its source: the unguarded borders.² Armed with the concepts of citizen's arrest and property rights, vigilante ranchers in California, Arizona, New Mexico, and Texas began detaining illegal aliens and turning them over to the authorities.³ As the vigilante ranchers grew in number, so did the rumors of their violent and abusive tactics. Now, in the national post-9/11 environment, vigilante ranchers have a renewed sense of purpose, and with the country on alert, they are preying on Americans fear and anger, using words like terrorism, patriotism, and duty to justify their crusade on the border.⁴

Before 9/11, Americans' primary concern with the problem of illegal immigration was the economic effect of the poor, unskilled workforce entering the country by the hundreds of thousands.⁵ But since 9/11 the concern evolved and intensified with questions about who is crossing our southern border and what evil designs they have for our country.⁶ Only after 9/11 did it become evident to the Americans who do not live on the border that Mexicans are not the only ones who cross it. In 1998, upon finding over one hundred illegal aliens in his yard, one rancher remarked:

Damnedest bunch of illegals I ever saw. All of them were wearing black pants, white shirts and string ties. Maybe they were hoping to blend in . . . [chuckles]. They took off, I called the Border Patrol. . . [who later] let me know that they had caught them . . . [and] that they were all Iranians.⁷

The post- 9/11 stories of Middle Eastern illegal aliens crossing the border are more sensationalized. On a website maintained by Supporters of United States Border Patrol,⁸ the first paragraph claims a group of Middle Eastern aliens were so frightening to the Mexican illegals (who, by the way, paid between $150 and $350 to be smuggled into the country) that they called border patrol themselves—but the "Arabs got away and melted into America."⁹

The vigilante border groups are operating in a legal and moral shade of grey. On the one hand, they are acting within the legal framework of citizen's arrest and fulfilling a societal need, which the government has not had the resources to provide. On the other, these groups are motivated by racist, xenophobic agendas, whose violent and abusive tactics are offensive to fundamental American values. Part II of this Comment offers a brief history of the United States/Mexico border and its legacy of vigilante justice. Part III recognizes the complexity of the problem posed by the border vigilantes. In an attempt to explain why it is difficult to label the border vigilantes' activities as entirely good or entirely bad, Part III will explain the inherent conflict between social contract theory and the practical realities of law enforcement.

In Part IV, the focus of the Comment shifts to the potential legal solutions to vigilantism on the border and identifies the strengths and weaknesses of each alternative. The first section of Part IV is an examination of the causes of action, which focus on the individual actor (including criminal violations, civil suits for false imprisonment, and civil suits brought under the Racketeer Influenced and Corrupt Organizations Act¹⁰ ). The second section of Part IV begins with a comparison of the vigilante border groups to the Ku Klux Klan of the Reconstruction Era. Drawing on the relevant similarities and differences in both the composition of the groups and national environment, one can see the danger that these groups pose to illegal immigrants and equally importantly to American values. The conclusion drawn is that the best way to combat the vigilante ranchers is first to recognize them for what they are—violent militias pursuing racist agendas—and second to prosecute them under either state anti-militia laws or federal anti-conspiracy laws.

II. History of the United States/Mexico Border and the Emergence of Anti-Immigration Vigilante Groups

At first glance, the vigilante ranchers are both respectable and fascinating. Upon learning of the vigilante border groups' existence, one cannot help but conjure up images of the Wild West and lone star justice: romantic visions of cowboys fighting against lawlessness and bad men. But investigation beyond the sound bites and propaganda uncovers the truth—patriotism, civic duty, and protection of property rights are simply ad hoc justifications for "wetback" sport hunting.¹¹

The United States/Mexico border has been a source of tension for both countries since its creation. By the mid-1800s, American settlers made their way into the Mexican province of Texas.¹² The Americans, frustrated by Mexican taxes, overran the Mexican garrison in 1835.¹³ In response, Mexico sent six thousand troops to the region led by General Antonio Lopez de Santa Anna ("Santa Anna").¹⁴ The Mexican army reached the city of San Antonio in February 1836, and it was there that the thirteen day Battle of the Alamo took place.¹⁵ The Mexican army left the Alamo victorious, but was defeated two months later by the United States army fighting to the cry of "[r]emember the Alamo."¹⁶ Santa Anna was captured and sent to Washington to meet with President Jackson.¹⁷ He made two promises to the Americans: first, he would keep Mexican troops south of the Rio Grande, and second, he would persuade the Mexican Congress to ratify Texas's independence.¹⁸ The Mexican Congress was not convinced and never recognized Texas's independence; even so, in 1845 the United States Congress admitted Texas into the Union.¹⁹ Viewing this as an act of war, Mexico sent troops north of the Rio Grande into Texas where they were met by the United States Army.²⁰ After securing land in Texas, New Mexico, and California, the United States moved south and invaded Mexico City.²¹ Mexico surrendered and the Treaty of Guadalupe-Hidalgo²² was signed on February 2, 1848, selling California, Arizona, New Mexico, and Texas to the United States for a mere fifteen million dollars.²³

From these bloody beginnings, the United States/Mexico border was born, but the new border did little to quell the tensions between "gringos" and "greasers" in the borderlands. Blood shed from war was replaced with blood shed from mob violence. An estimated 597 Mexicans were lynched between 1848 and 1928²⁴ by vigilante Americans who were using violence and terror in an effort to keep "wetbacks" off the land that they viewed as rightfully theirs.²⁵ Not all nineteenth century ranchers advocated vigilante justice, nevertheless, the value of Mexican life was still treated with a certain degree of apathy.²⁶ According to one rancher "[t]o shoot these Greasers ain't the best way. Give 'em a fair trial, and rope 'em up with all the majesty of the law. That's the cure."²⁷

In the late 1980s and early 1990s the battle over the border heated up again. In 1990 El Paso Border Patrol Agents took aggressive action to curb the influx of illegal traffic across the border.²⁸ The Border Patrol started "Operation Hold the Line" and erected a twenty-four hour blockade along the Rio Grande.²⁹ The operation was successful, resulting in an impressive drop in illicit traffic across the border. The circumstances in California, however, were strikingly different because, unlike Texas, California did not have the Rio Grande to act as a physical barrier between the two countries. As of 1990 there was no wall, let alone fence, that separated San Diego and Mexico. Knowing that the Border Patrol lacked the resources to stop them all, potential illegal immigrants would congregate at the border, then simply run across. In 1989 and 1990, concerned California citizens participated in the "Light Up the Border" campaign, in which Californians would form a line with their cars and shine their lights towards the border.³⁰ Though the campaign was successful in numbers, it received a dose of its own medicine when immigration activists, wielding mirrors and tin foil, fought back against the demonstrators.³¹

Irritated that the government was not investing more time, money, and energy into curbing the flood of illegal immigrants, citizens who called themselves the "Airport Posse" began patrolling California airports looking for suspicious persons with brown skin.³² In their blue and gold "US Citizen Patrol" tee-shirts, the Airport Posse took it upon themselves to monitor the passengers traveling on early morning/late night flights out of San Diego's International Airport.³³ The group's activities were, for the most part, mild and non-intrusive. According to the Airport Posse, they were doing nothing more than standing around, watching, taking notes on what they saw, and every so often reminding airport personnel that travelers must show government issued identification before boarding their flights.³⁴ Notwithstanding the Airport Posse's assertions regarding their activities, immigrant rights groups viewed the Airport Posse as racist vigilantes and speculated as to "[w]hat's next?"³⁵

Growing concern over immigration problems at the border prompted President Clinton to institute a new border policy called "Operation Gatekeeper," which focused on border cities.³⁶ Operation Gatekeeper alleviated many of the illegal immigration problems San Diego was facing. A ten foot wall, constructed out of surplus runway mats and covered in lights was built along fourteen miles of the California/Mexico border.³⁷ San Diego's Border Patrol resources were also increased; they received new computers, new vehicles, a fingerprinting system, and a sixty percent increase in the number of border patrol agents.³⁸ This new policy was designed to...