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El Norte
January 27, 2012 8:10 AM   Subscribe

Illegal immigrant filter: I'm researching another short story. Civilian militias patrol US borders looking for illegals in the Southwest, but I don't understand the legal underpinnings.

Under what US law do these groups operate that allows them to detain people and turn them over to the Border Patrol? How does the process work?
posted by Guy_Inamonkeysuit to Law & Government (11 answers total) 1 user marked this as a favorite
 
I've gathered that they really don't have a legal leg to stand on, but that sympathetic law enforcement in the border region has largely looked the other way, only getting involved when those idiots kill someone.
posted by Oktober at 8:18 AM on January 27, 2012


not unlike mall cops, their technical function is "observe and report"
posted by Jon_Evil at 8:19 AM on January 27, 2012


Here's an interview with the founder of the Minuteman Project. They mainly just radioed or called CBP officers while tailing any border jumpers that they saw. There were no active detentions (at least none they admitted to). Here's a report solicited by Congress on the issues that civilian patrols raise for law enforcement.
posted by Burhanistan at 8:19 AM on January 27, 2012


Civilian Patrols Along the Border: Legal and Policy Issues (2006)

from page 15

"At common law, persons generally enjoy[ed],
among others, the right to defend their property and themselves in cases of intrusion
or attack. Private persons were (are) also allowed to make “citizen’s arrests” to
facilitate the prompt suppression of certain offenses. Citizen arrest authority generally permits a private person to arrest another without a warrant for
misdemeanors that amount to a “breach of the peace” and felonies committed in his
presence.56"
posted by Ideefixe at 8:21 AM on January 27, 2012


Oh, and the groups also do a fair amount of verbal harassment to the immigrants, which that report I linked to indicates is protected under the First Amendment.
posted by Burhanistan at 8:22 AM on January 27, 2012


Under what US law do these groups operate that allows them to detain people and turn them over to the Border Patrol? How does the process work?

They have only citizen's arrest powers, which are weak. The problem is probable cause. Unless they actually see the person crossing the border, they lack probable cause and the actual witness of the crime. Just arresting a person because they speak Spanish and the like isn't enough. They have to actually witness the felony with their own eyes. They must witness the crime directly, unlike a sworn officer.

Basically, it is near-impossible for a legal arrest because the odds that they will be at the place where persons are illegally crossing is near nil.
posted by Ironmouth at 8:29 AM on January 27, 2012


There was a This American Life segment on the Minutemen which might give you a good idea of how they operate.
posted by exhilaration at 8:31 AM on January 27, 2012


I am an attorney, but I am not your attorney. This is not legal advice. I assume you are asking solely for the purpose of writing a short story accurately. If you are asking for any other purpose, consult a competent attorney in your jurisdiction.

As mentioned, Minuteman-type groups don't claim to do it, but private individuals can carry out a valid citizen's arrest in certain circumstances (here's a self-link primer on citizen's arrest in the context of comic book superheroes). The details vary considerably from state to state, however. Some states require that the arresting individual have actually seen a felony be committed, which would be hard for these kinds of groups to claim in many cases.

So if you need your fictional group to be able to carry out a citizen's arrest, check out the relevant state law. For example, here's Arizona's, which allows arrests for a misdemeanor or breach of the peace if it's in the arrester's presence but arrests for a felony can be carried out in a case of reasonable belief. Note that the felony must have actually been committed, so if the arrester's reasonable belief is mistaken then they may be liable for false arrest / false imprisonment and quite possibly other crimes and torts.

Of course, these groups are primarily concerned with violations of federal immigration law. So in determining whether the federal immigration violation is a felony, misdemeanor, or breach of the peace for purposes of the citizen's arrest privilege, you have to compare the federal crime to the relevant state definition of felony, misdemeanor, or breach of the peace. See, e.g., United States v. Swarovski, 557 F. 2d 40 (2d Cir. 1977).

In Arizona, for instance, ""Felony" means an offense for which a sentence to a term of imprisonment in the custody of the state department of corrections is authorized by any law of this state." Improper entry by an illegal alien carries a potential sentence of 6 months under federal law, for a first time offense. The minimum sentence for the lowest class of felony in Arizona (class 6) is 6 months. So the minimum state penalty and the maximum federal penalty just barely overlap. It's debatable, then, whether a first time illegal entry would count, but for purposes of a short story you could probably fudge it if you had to.
posted by jedicus at 8:37 AM on January 27, 2012


The problem is probable cause. Unless they actually see the person crossing the border, they lack probable cause and the actual witness of the crime. ... They have to actually witness the felony with their own eyes. They must witness the crime directly, unlike a sworn officer.

As described above, this is not always true, particularly in felony cases. There is, however, a higher standard for private individuals, who don't have the good faith defense or qualified immunity that police officers do.
posted by jedicus at 8:38 AM on January 27, 2012


Not speaking for the minuteman, but speaking as someone who has first hand experience dealing with border crossers in Arizona-they often commit other crimes (note-not passing judement, the actual immigrants are usually pretty hard up, don't have a lot of choices and are mostly just trying to stay alive-the smugglers are usually the typical criminal scum and thugs) such as trespassing (often with littering but no other property damages), petty theft (water most often-we often took 3x times the amount we needed with us when hunting/camping for this reason), taking down fences(this is by law not a major crime, but by the accepted manners in rural areas a VERY big deal). So the oppurtunity to witness a crime besides just simple border crossing is actually pretty good when observing a big group for any lenght of time. And they usually did travel in groups. Single males in small groups like 3-10 and any group with kids and femals were usually 20+.

It really is a different world down there, and operates by different rules than the vast majority of the us not within a days walk of the mexican border.
posted by bartonlong at 9:32 AM on January 27, 2012 [1 favorite]


Thank you all. Not sure if I can mark a "best" here, because each response gives me food for thought.
posted by Guy_Inamonkeysuit at 5:39 PM on January 27, 2012


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