Borderland protests: Do Border Patrol checkpoints go too far?

On Tuesday, a federal court in Tucson is hearing residents’ complaints that the Border Patrol violated the Constitution. In an earlier ruling, the Supreme Court granted the agency permission to establish checkpoints up to 100 miles north of the US-Mexico border.

Eric Gay/AP
A US Customs and Border Protection Air and Marine agent's patch is seen as he patrols patrol near the Texas-Mexico border, Feb. 24, in Rio Grande City, Texas.

Video recorders in hand, some American borderland residents are taking part in an unusual protest movement: Refusing to answer questions about their citizenship when stopped at Border Patrol checkpoints north of the US-Mexico border.

Several of such checkpoint protests have ended with detentions, even arrests, as green-vested agents engage in a battle of wills with uncooperative citizen-motorists. One dramatic YouTube video shows a man being pulled out of his car and handcuffed as his 4-year-old child wails. Others end when Border Patrol agents wave the protesters through, as when one man simply holds up a Bible while refusing to answer questions.

In some ways, such checkpoint conflicts are understandable in what’s become a 100-mile wide, 2,000-mile long US conflict zone, where thousands of federal agents clamber around dusty mesas and dry riverbeds looking for immigration scofflaws, drug-traffickers, Mexican gang members, and even potential terrorists.

Residents in the border region are used to living under a heavy federal hand. But the post-9/11 expansion of the Border Patrol’s numbers and powers have, at least for some, led to a troubling sense of the borderlands as US territory slowly slipping under a paramilitary thumb.

There’s no doubt the Border Patrol plays a vital and largely unheralded role in keeping the nation safe. Yet video evidence of Border Patrol checkpoint tactics and reactions to protests offer glimpses into some potentially troubling outcomes of the evolution of the Border Patrol’s profile from range-riding “Mounted Inspectors” in the early 1900s to 21st-century guardians of national security.

“The Border Patrol has been the victim of its own mission creep, and slowly has begun to think that every square meter of that border band is theirs to check and nobody ought to offer resistance,” says Tony Payan, director of the Mexico Center at Rice University in Houston. “In response, ranchers, farmers, and natives are beginning to say, ‘You don’t have the power.’ The Border Patrol is beginning to run into citizens’ desire and right to freely circulate in national territory.”

The Border Patrol, which was formalized in 1924 and rolled into the newborn Department of Homeland Security in 2003, says incidents of "uncooperative motorists" are rare. At the Falfurrias Station checkpoint, 70 miles north of the Rio Grande Valley on Highway 281 in Texas, agents see only a handful a year, even with 10,000 vehicles moving through daily. But the agency acknowledges that interactions grow confrontational at far higher rates at inland checkpoints.

“We stand out there, representing the government, doing border security, including terrorism threats, and sometimes ... we meet people who have a different outlook on life, a different philosophy on how the government is going to get the job done,” says Thomas Slowinski, the deputy patrol agent-in-charge at Falfurrias. "We’d like it if everybody was cooperative, but we know in the melting pot we face daily there’s going to be people that come through that checkpoint that are unhappy for many different reasons.”

20 million residents and 21,000 agents

Protesters, border experts say, range from libertarian-minded white males offended at what they see as government overreach to American Hispanics who feel implicated in what they see as a brutal, even inhumane, US border policy.

“A lot of Americans say, ‘Well, we’re searching people along the border within 100 miles ... that sounds reasonable,’ ” says David Shirk, a border policy expert at the University of San Diego. “But while they’re thinking open roads and Wile E. Coyote, there are 20 million people who live within that zone.”

In 2000, Supreme Court Justice Clarence Thomas, in a dissent to a checkpoint case out of Indianapolis, questioned the extent to which law enforcement can engage dragnet-style tactics to sift through the population for lawbreakers. His summation resonates throughout the video protests: “I rather doubt that the Framers would have considered ‘reasonable’ a program of indiscriminate stops of individuals not suspected of wrongdoing,” Justice Thomas wrote.

Even before 9/11, in a 1976 case, the Supreme Court granted the Border Patrol the right to establish inland checkpoints to briefly ask travelers about their residency status. Yet agents regularly expand questioning when suspicions are raised, including alerts from drug dogs. Agents in the Rio Grande Valley sector alone have apprehended 224 gang members since last fall, as well as 147 sex offenders. But sometimes, the agency acknowledges, meandering questions from poker-faced agents irk motorists who feel they're being targeted without cause.

"Some people do get upset and say they don’t have to answer all our questions, and they’re right, to a certain extent,” says Doyle Amidon, the patrol agent-in-charge at Falfurrias. “But we have the right to be there, and we can ask questions about where you’re going, all these kinds of things to help the agent look at the totality of the of the particular event.... What often happens is we get people who are frustrated in general and that checkpoint becomes the straw that broke the camel’s back.”

As the Border Patrol has doubled in size to 21,000 agents and expanded its territorial jurisdiction, the agency has muscled the Supreme Court’s boundaries to their limits, critics say. One immediate problem: most Americans don’t carry passports on their persons during their daily travels inside the US, and in many states a driver’s license won’t suffice to prove citizenship since it doesn’t guarantee the holder is a legal resident.

“If someone asked me to prove I was an American citizen, I couldn’t do it,” says Lucas “Scot” Powe, a constitutional law professor at the University of Texas, in Austin. “That means the law has to be discriminatorily applied.”

Compounding that dilemma, “the Border Patrol has slowly expanded their coverage to southbound inspections and to any territory within 100 miles of the border, and then they slowly expanded their own jurisdictional capability to check on anybody that looked foreign to them, which [raises the question]: What does a foreigner look like?” adds Rice University’s Professor. Payan, author of “The Three US-Mexico Border Wars.” “It’s a question that they haven’t resolved.”

The Obama administration had a chance to clarify those lines, but took a pass. When the Department of Justice in December issued new rules to federal law enforcement that ban profiling based on characteristics of national origin, religion, and sexual orientation, the DOJ gave the Border Patrol and the Transportation Safety Administration a waiver.

A delicate balance of citizen rights and national security

In response to videos showing border agents physically confronting uncooperative motorists, the agency agrees that US law doesn’t give agents automatic authority to search individuals and vehicles, or seize their persons. However, the law does give agents the authority to refer individuals and cars for further inspection. And as one videotape protester found out, it is a felony to drive away from a checkpoint without the Border Patrol's consent. He’s now serving eight months in jail.

The agency adds that it’s trying to be as conscientious as possible about citizens’ rights while conducting a difficult national security, anti-trafficking, and immigration mission. More directly, the agency's 2012-2016 mission statement suggests the agency needs to do more community engagement, which includes gaining the trust and goodwill of locals to ease intelligence-gathering.

Such extensions of goodwill strike a false note for some borderland locals.

In the Sonoran Desert town of Arivaca, Ariz., residents began to picket and video-record a Border Patrol checkpoint that had, for some, become such an overbearing presence that tourists were staying away. On Tuesday, a federal court in Tucson is hearing residents’ litany of complaints against the Border Patrol. The residents allege that the Border Patrol violated the Constitution when agents reacted to camera-wielding protesters by annexing a public sidewalk to push them away, and then parked government SUVs to block cameras from videotaping. The grassroots group, People Helping People, eventually produced a critical report on the checkpoint, based on more than 200 hours of videotape of agents at work.

“Arivaca residents have to drive through this checkpoint every day, and every time they have to answer to an armed federal agent,” one of the Arivaca plaintiffs, Leesa Jacobson, has said. “That’s not how this country is supposed to work.”

Such federalist tensions around inland checkpoints contribute to a dynamic where federal agents are seen by some as an “occupying force and not the friendly hometown sheriff,” says James Lyall of the Arizona ACLU.

“I think these kinds of small protests have been going on for a long time,” says Mr. Shirk, the University of San Diego border expert, who himself refused to discuss his citizenship when confronted by a Border Patrol agent on a train ride through the zone several years ago. “Americans who are confronted by the Border Patrol are frequently treated in undignified ways. [Agents] make us feel like we are living in some kind of gulag.”

But if some borderland residents are protesting inland checkpoints with YouTube videos and filing federal lawsuits, their plight isn’t exactly on the national radar.

It’s true that border states such as Texas, California, and Arizona have strong libertarian strains that are likely fueling the protests. But if anything, public and political pressure in the US is rising to increase Border Patrol scrutiny of borderland areas. The Obama administration has bolstered both border and inland reconnaissance, and last year, former Gov. Rick Perry sent thousands of National Guard troops to patrol the border.

Public support for even tougher and stronger police enforcement along the border, especially after a wave of child migrants hit the border last year, rose from 25 percent in 2013 to 33 percent in 2014, according to a Gallup poll.

Nevertheless, broader cultural concerns about the effect of post-9/11 policing tactics on minority civil rights has begun to merge with the checkpoint rumblings on the border, argues Rice’s Payan.

The extent to which America is willing to curb the rights of border dwellers in order for the rest of the country to feel safer in their own hometowns may play out as Congress mulls once again increasing the size of the Border Patrol in the next decade.

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