San Diego teacher detained after refusing to answer BP question
Jul 26, 2017, 12:24 pm
#17
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Jul 26, 2017, 1:18 pm
#18
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I'd rather make some compromises and a simple stop and a few questions with a few minutes lost of my time, rather than see yet another load of whatever makes its way into the United States.
This, however, is: exactly what do you mean by "some compromises"? The Declaration of Independence defines specific rights that are inherent and universal. "Among these are life, liberty and the pursuit of happiness." Because these rights are inherent, rather than granted by the sovereign, i.e. the government (and that, by the way, is why America is called "the Great Experiment," not because we're a representative democracy), the government lacks the power to trespass on them.
The Bill of Rights is a non-exclusive list of powers denied to the government. If the government usurps powers specifically denied to it, it is, by definition, a tyrant (again, that's in the Declaration of Independence and was the justification for the Revolutionary War). That is what is meant by the term, "government of limited powers," i.e. the federal government (and, through selective incorporation under the 14th Amendment, state and municipal governments) can't exercise powers denied to them by the Bill of Rights.
Now, in practice, the list is not absolute but, over a couple of centuries, various tests have been defined by the US Supreme Court to determine when the exercise of otherwise-precluded power can be exercised by government. As a general rule, rights identified in the Bill of Rights, whether expressly or by implication, are deemed "fundamental rights." The constitutionality of government restriction of fundamental rights depends on the nature of, and justification for, the restriction. For example, restriction of freedom of speech based on its content requires the "least restrictive means" of a "compelling state interest" (these are legal terms of art).
In the case of "drag net" sobriety checkpoints, which implicate the 4th and 5th Amendments, the compelling state interest is rather obvious: drunk drivers pose an imminent threat to the safety of themselves and those around them. Even so, there are limitations on the checkpoints. For example, the government must announce when and where they will be imposed, so that motorists have the option to avoid them, or avoid driving altogether on those occasions.
A drag-net immigration checkpoint which, according to DHS regulations, may be imposed anywhere in approximately 80% of the US, also implicates the 4th and 5th Amendments. However, what is the compelling state interest? There is no risk of immediate and severe harm from the presence of undocumented aliens in the US. I think you will agree, too, that a "criminality checkpoint," i.e. random stops by government LEO where a person must provide assurance to the state that they have not committed a crime, is clearly violative of the 4th Amendment prohibition against illegal search and seizure and the right to be secure in one's person. How is the immigration check point any different?
There is no such thing as "a little tyranny." Either out government acts in conformance with Bill of Rights and the Declaration of Independence conceptions of liberty and inherent rights, or it does not. As you note, I am an attorney, and I've taken an oath to uphold and defend the Constitution, an oath that I take very seriously. For that reason, I would take the same actions as the teacher in the article were I confronted with a checkpoint that sought to compel my response to questions posed by a state actor.
No doubt these stops don't catch everything, but I'm all for making it as difficult as possible for the criminals.
I'd also love to walk right from my car to the gate to board the airplane without being stopped, but our unfriendly terrorist groups screwed that up decades ago.
I'm not disagreeing with you, but how do you propose we minimize the entry of drugs, Illegal entry, human trafficking?
You lump in "illegal entry" with importation of drugs and human trafficking. The fact remains that the vast majority of immigrants who entered illegally don't commit crimes, don't impose on our society, and contribute their labor and pay taxes for which they receive little, if any, benefit. I'd also note that the same arguments against economic and socially-motivated immigration have been around for since the 19th century, but for a signficant period, from roughly mid-19th century to early 20th century, the only restrictions on those immigrants were that they demonstrate that they were in good health and wouldn't be a burden to society (my own grandparents immigrated to the US through Ellis Island around 1911). That wave of immigration certainly resulted in a net positive for America.
Nonetheless, to answer your question, I don't think anyone objects to reasonable inspection procedures at the border and at ports of entry -- every country does this. What is unreasonable, however, is the idea that anyone, at any time, and almost anywhere, can be required to undergo interrogation (regardless of how limited or short-term) and be coercively compelled to provide affirmation of their legal status in what is clearly a 4th and 5th amendment violation (and, remember, lying to a federal officer, e.g. a border patrol agent, is federal crime).
Jul 26, 2017, 1:34 pm
#19
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I was surprised to read in the ACLU's Know Your Rights with Border Patrol leaflet, which was linked in the cited article, that the Border Patrol agents' conduct was perfectly legal:
Jul 26, 2017, 1:39 pm
#20
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As I understand it, our local laws allow LE to stop anyone at any time to demand they identify themselves. You have to satisfy the officer's request somehow. Technically, you do not have to show ID - unless the cop claims he doubts your identity, at which point you can be detained if you can't immediately produce an acceptable ID.
Jul 26, 2017, 1:49 pm
#21
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At the time of the founding of this nation, there was no such thing as "illegal immigration."
I don't agree with you that immigration from south of the border is a problem, but that's not really a discussion for this thread.
This, however, is: exactly what do you mean by "some compromises"? The Declaration of Independence defines specific rights that are inherent and universal. "Among these are life, liberty and the pursuit of happiness." Because these rights are inherent, rather than granted by the sovereign, i.e. the government (and that, by the way, is why America is called "the Great Experiment," not because we're a representative democracy), the government lacks the power to trespass on them.
The Bill of Rights is a non-exclusive list of powers denied to the government. If the government usurps powers specifically denied to it, it is, by definition, a tyrant (again, that's in the Declaration of Independence and was the justification for the Revolutionary War). That is what is meant by the term, "government of limited powers," i.e. the federal government (and, through selective incorporation under the 14th Amendment, state and municipal governments) can't exercise powers denied to them by the Bill of Rights.
Now, in practice, the list is not absolute but, over a couple of centuries, various tests have been defined by the US Supreme Court to determine when the exercise of otherwise-precluded power can be exercised by government. As a general rule, rights identified in the Bill of Rights, whether expressly or by implication, are deemed "fundamental rights." The constitutionality of government restriction of fundamental rights depends on the nature of, and justification for, the restriction. For example, restriction of freedom of speech based on its content requires the "least restrictive means" of a "compelling state interest" (these are legal terms of art).
In the case of "drag net" sobriety checkpoints, which implicate the 4th and 5th Amendments, the compelling state interest is rather obvious: drunk drivers pose an imminent threat to the safety of themselves and those around them. Even so, there are limitations on the checkpoints. For example, the government must announce when and where they will be imposed, so that motorists have the option to avoid them, or avoid driving altogether on those occasions.
A drag-net immigration checkpoint which, according to DHS regulations, may be imposed anywhere in approximately 80% of the US, also implicates the 4th and 5th Amendments. However, what is the compelling state interest? There is no risk of immediate and severe harm from the presence of undocumented aliens in the US. I think you will agree, too, that a "criminality checkpoint," i.e. random stops by government LEO where a person must provide assurance to the state that they have not committed a crime, is clearly violative of the 4th Amendment prohibition against illegal search and seizure and the right to be secure in one's person. How is the immigration check point any different?
There is no such thing as "a little tyranny." Either out government acts in conformance with Bill of Rights and the Declaration of Independence conceptions of liberty and inherent rights, or it does not. As you note, I am an attorney, and I've taken an oath to uphold and defend the Constitution, an oath that I take very seriously. For that reason, I would take the same actions as the teacher in the article were I confronted with a checkpoint that sought to compel my response to questions posed by a state actor.
Just to be clear, since we're talking about law, my understanding is that someone who is not legally in the US is not considered a criminal, per se, i.e. they can be deported, but not imprisoned.
Yes, but that goes back to whether there is a "compelling state interest," and whether TSA employs the "least restrictive means." That, too, is a subject for a different thread, but I think most everyone on FT agrees that TSA's methodologies don't satisfy either test. And, again, without digressing too much, a true "administrative search," i.e. one without probable cause, is a constitutional exception to the 4th Amendment. In my professional opinion, a lot of what TSA does, either by design or as the result of poor training, exceeds the scope of a constitutionally-permissible adminstrative search.
Well, first, I'm a lawyer, not a law enforcement officer. My expertise lies in jurisprudence and the Constitution, not detection, prevention and apprehension of criminals and criminal conduct. However, I will note this: we could live in a much safer society if LEOs could, at their whim and with no justification whatsoever, stop and search anyone and everyone to assure that they're not engaged in criminal activity. That, however, is not a free society; that's the Gestapo. As Ben Franklin said, those who would trade freedom for security deserve neither. This is more than a "slippery slope" argument. As I said, there's no such thing as "a little tyranny."
You lump in "illegal entry" with importation of drugs and human trafficking. The fact remains that the vast majority of immigrants who entered illegally don't commit crimes, don't impose on our society, and contribute their labor and pay taxes for which they receive little, if any, benefit. I'd also note that the same arguments against economic and socially-motivated immigration have been around for since the 19th century, but for a signficant period, from roughly mid-19th century to early 20th century, the only restrictions on those immigrants were that they demonstrate that they were in good health and wouldn't be a burden to society (my own grandparents immigrated to the US through Ellis Island around 1911). That wave of immigration certainly resulted in a net positive for America.
Nonetheless, to answer your question, I don't think anyone objects to reasonable inspection procedures at the border and at ports of entry -- every country does this. What is unreasonable, however, is the idea that anyone, at any time, and almost anywhere, can be required to undergo interrogation (regardless of how limited or short-term) and be coercively compelled to provide affirmation of their legal status in what is clearly a 4th and 5th amendment violation (and, remember, lying to a federal officer, e.g. a border patrol agent, is federal crime).
I don't agree with you that immigration from south of the border is a problem, but that's not really a discussion for this thread.
This, however, is: exactly what do you mean by "some compromises"? The Declaration of Independence defines specific rights that are inherent and universal. "Among these are life, liberty and the pursuit of happiness." Because these rights are inherent, rather than granted by the sovereign, i.e. the government (and that, by the way, is why America is called "the Great Experiment," not because we're a representative democracy), the government lacks the power to trespass on them.
The Bill of Rights is a non-exclusive list of powers denied to the government. If the government usurps powers specifically denied to it, it is, by definition, a tyrant (again, that's in the Declaration of Independence and was the justification for the Revolutionary War). That is what is meant by the term, "government of limited powers," i.e. the federal government (and, through selective incorporation under the 14th Amendment, state and municipal governments) can't exercise powers denied to them by the Bill of Rights.
Now, in practice, the list is not absolute but, over a couple of centuries, various tests have been defined by the US Supreme Court to determine when the exercise of otherwise-precluded power can be exercised by government. As a general rule, rights identified in the Bill of Rights, whether expressly or by implication, are deemed "fundamental rights." The constitutionality of government restriction of fundamental rights depends on the nature of, and justification for, the restriction. For example, restriction of freedom of speech based on its content requires the "least restrictive means" of a "compelling state interest" (these are legal terms of art).
In the case of "drag net" sobriety checkpoints, which implicate the 4th and 5th Amendments, the compelling state interest is rather obvious: drunk drivers pose an imminent threat to the safety of themselves and those around them. Even so, there are limitations on the checkpoints. For example, the government must announce when and where they will be imposed, so that motorists have the option to avoid them, or avoid driving altogether on those occasions.
A drag-net immigration checkpoint which, according to DHS regulations, may be imposed anywhere in approximately 80% of the US, also implicates the 4th and 5th Amendments. However, what is the compelling state interest? There is no risk of immediate and severe harm from the presence of undocumented aliens in the US. I think you will agree, too, that a "criminality checkpoint," i.e. random stops by government LEO where a person must provide assurance to the state that they have not committed a crime, is clearly violative of the 4th Amendment prohibition against illegal search and seizure and the right to be secure in one's person. How is the immigration check point any different?
There is no such thing as "a little tyranny." Either out government acts in conformance with Bill of Rights and the Declaration of Independence conceptions of liberty and inherent rights, or it does not. As you note, I am an attorney, and I've taken an oath to uphold and defend the Constitution, an oath that I take very seriously. For that reason, I would take the same actions as the teacher in the article were I confronted with a checkpoint that sought to compel my response to questions posed by a state actor.
Just to be clear, since we're talking about law, my understanding is that someone who is not legally in the US is not considered a criminal, per se, i.e. they can be deported, but not imprisoned.
Yes, but that goes back to whether there is a "compelling state interest," and whether TSA employs the "least restrictive means." That, too, is a subject for a different thread, but I think most everyone on FT agrees that TSA's methodologies don't satisfy either test. And, again, without digressing too much, a true "administrative search," i.e. one without probable cause, is a constitutional exception to the 4th Amendment. In my professional opinion, a lot of what TSA does, either by design or as the result of poor training, exceeds the scope of a constitutionally-permissible adminstrative search.
Well, first, I'm a lawyer, not a law enforcement officer. My expertise lies in jurisprudence and the Constitution, not detection, prevention and apprehension of criminals and criminal conduct. However, I will note this: we could live in a much safer society if LEOs could, at their whim and with no justification whatsoever, stop and search anyone and everyone to assure that they're not engaged in criminal activity. That, however, is not a free society; that's the Gestapo. As Ben Franklin said, those who would trade freedom for security deserve neither. This is more than a "slippery slope" argument. As I said, there's no such thing as "a little tyranny."
You lump in "illegal entry" with importation of drugs and human trafficking. The fact remains that the vast majority of immigrants who entered illegally don't commit crimes, don't impose on our society, and contribute their labor and pay taxes for which they receive little, if any, benefit. I'd also note that the same arguments against economic and socially-motivated immigration have been around for since the 19th century, but for a signficant period, from roughly mid-19th century to early 20th century, the only restrictions on those immigrants were that they demonstrate that they were in good health and wouldn't be a burden to society (my own grandparents immigrated to the US through Ellis Island around 1911). That wave of immigration certainly resulted in a net positive for America.
Nonetheless, to answer your question, I don't think anyone objects to reasonable inspection procedures at the border and at ports of entry -- every country does this. What is unreasonable, however, is the idea that anyone, at any time, and almost anywhere, can be required to undergo interrogation (regardless of how limited or short-term) and be coercively compelled to provide affirmation of their legal status in what is clearly a 4th and 5th amendment violation (and, remember, lying to a federal officer, e.g. a border patrol agent, is federal crime).
I sounds like we disagree on a few things from a political perspective, but that is fine. I respect your knowledge of the legal system and appreciate your contribution and answers to my questions.
Kind Regards,
COSPILOT
Jul 26, 2017, 1:52 pm
#22
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As I understand it, our local laws allow LE to stop anyone at any time to demand they identify themselves. You have to satisfy the officer's request somehow. Technically, you do not have to show ID - unless the cop claims he doubts your identity, at which point you can be detained if you can't immediately produce an acceptable ID.
Jul 26, 2017, 2:18 pm
#23
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<redacted>
Comparing the United States desire to prevent illegal activity including drugs to what what the Nazi's did is a strecth. I would prefer this crap not make it all the way to Colorado Springs. Last I checked the United States isn't sending people to death camps, isn't blocking free speech, and isn't blocking your right to post what you think.
<redacted>
Comparing the United States desire to prevent illegal activity including drugs to what what the Nazi's did is a strecth. I would prefer this crap not make it all the way to Colorado Springs. Last I checked the United States isn't sending people to death camps, isn't blocking free speech, and isn't blocking your right to post what you think.
<redacted>
Last edited by TWA884; Jul 27, 2017 at 8:39 am Reason: Remove reference to a deleted post
Jul 26, 2017, 2:25 pm
#24
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I'm not a lawyer (I realize you are), but don't you think the founding fathers of our great nation never fathomed the idea of illegal activity being such a problem on our southern border? I'd rather make some compromises and a simple stop and a few questions with a few minutes lost of my time, rather than see yet another load of whatever makes its way into the United States. No doubt these stops don't catch everything, but I'm all for making it as difficult as possible for the criminals.
I'm not disagreeing with you, but how do you propose we minimize the entry of drugs, Illegal entry, human trafficking?
I'm not disagreeing with you, but how do you propose we minimize the entry of drugs, Illegal entry, human trafficking?
I propose we "minimize the entry of drugs, etc" AT THE BORDER!!! From 1" inside the border to the geographic center of the U.S., I want criminals pursued and caught constitutionally by cops legally empowered to police the interior of the United States and a legal system ensuring that anyone accused of a crime be assured of access to all of their constitutional rights.
As I understand it, our local laws allow LE to stop anyone at any time to demand they identify themselves. You have to satisfy the officer's request somehow. Technically, you do not have to show ID - unless the cop claims he doubts your identity, at which point you can be detained if you can't immediately produce an acceptable ID.
If you follow the crusades of someone like Terry Bresi, who has lived through some arrests, hassles and lawsuits in Arizona, he notes that local cops have been using these checkpoints to illegally conduct all sorts of dragnets from DUI to drugs to running your plates for warrants to vehicle safety checks and driver's license checks. Sessions needs to have the guts to make examples of a few local sheriffs even before we attack the existence of the internal checkpoints themselves.
All I know is that I didn't wear my country's uniform for 26 years to have all of this crap exist. I wore it so people like the teacher can stand up to authority and do what she did and, literally, live to tell about it.
Jul 26, 2017, 2:32 pm
#25
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I don't think the comparison is to what the Nazi's did but, rather, to the way the Nazi's attained power and oppressed their own and other people.
I would prefer this crap not make it all the way to Colorado Springs.
Last I checked the United States isn't sending people to death camps, isn't blocking free speech, and isn't blocking your right to post what you think.
Comparing the United States to Nazi Germany is a horrible insult to our great country.
Let me ask you this: one of the cornerstones of the the judicial process in America is the presumption of innocence, i.e. the state bears the burden of proving guilt. As it is often put, "better 10 guilty go free than 1 innocent be deprived of life or liberty." Do you agree with that? And if you do, how do you reconcile that with a government demand that someone establish their legal right to be in this country on demand?
Jul 26, 2017, 2:36 pm
#26
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Thank you for your service, FliesWay2Much. You wore the uniform for exactly the right reason, and I am grateful to you for being willing to put your life on the line for it.
Jul 26, 2017, 2:40 pm
#27
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When do you draw the line on "some compromises" and what are your criteria? Is the line your front door? Your bedroom? Your body?
I propose we "minimize the entry of drugs, etc" AT THE BORDER!!! From 1" inside the border to the geographic center of the U.S., I want criminals pursued and caught constitutionally by cops legally empowered to police the interior of the United States and a legal system ensuring that anyone accused of a crime be assured of access to all of their constitutional rights.
As I read the judicial legislation of the Constitution-Free Zone, the cops are authorized to "briefly" detain you to ascertain citizenship. If they ask you a question and you rightfully decline to answer, they believe they have the authority to ascertain your citizenship some other way.
If you follow the crusades of someone like Terry Bresi, who has lived through some arrests, hassles and lawsuits in Arizona, he notes that local cops have been using these checkpoints to illegally conduct all sorts of dragnets from DUI to drugs to running your plates for warrants to vehicle safety checks and driver's license checks. Sessions needs to have the guts to make examples of a few local sheriffs even before we attack the existence of the internal checkpoints themselves.
All I know is that I didn't wear my country's uniform for 26 years to have all of this crap exist. I wore it so people like the teacher can stand up to authority and do what she did and, literally, live to tell about it.
I also don't understand the argument that if one somehow makes it across the border illegally, we should no longer care what they do? They have already violated the law by doing so. Very unfair to the people that enter legally.
Jul 26, 2017, 2:45 pm
#28
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<redacted>
Back on topic, I applaud the woman for her standing up to this practice. Whatever the answer is, it's not what the CBP is currently doing (which is bordering on disgraceful).
Back on topic, I applaud the woman for her standing up to this practice. Whatever the answer is, it's not what the CBP is currently doing (which is bordering on disgraceful).
Last edited by TWA884; Jul 27, 2017 at 8:40 am Reason: Remove reference to a deleted post
Jul 26, 2017, 2:45 pm
#29
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As I understand it, our local laws allow LE to stop anyone at any time to demand they identify themselves. You have to satisfy the officer's request somehow. Technically, you do not have to show ID - unless the cop claims he doubts your identity, at which point you can be detained if you can't immediately produce an acceptable ID.
authorize police to legally obtain the identification of someone whom they reasonably suspect of having committed a crime. If there is no reasonable suspicion that a crime has been committed, is being committed, or is about to be committed, an individual is not required to provide identification, even in "Stop and ID" states.
(bolding added)
Just coming up to an immigration checkpoint or even a DUI checkpoint and refusing to answer does not give reasonable suspicion. As such, lacking reasonable suspicion there is no reason to detain let alone ask for ID.
That is why I find the ACLU information odd. And in fact, I believe the CBP has been sued for such detentions.
Jul 26, 2017, 2:49 pm
#30
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I COMPLETELY agree with these two videos contents and I have watched those videos myself several times over the years and I think those two videos are GREAT watching.
BUT but but....those videos have NOTHING TO DO with this situation here. A CBP checkpoint is not the interrogation room of a local police department.
Someone already posted the ACLU quick fact sheet and it says right there that it is legal for CBP to detain persons if they do not answer certain questions.
Sorry but unknown persons entering border checkpoints into the USA seems reasonable to have them under a bit more skeptical lens than someone who is already legally on US soil.
I agree with the libertarians and the liberals and some GOPs on the overreach of jackbooted government thugs....but this teacher was pretty stupid imo.
