A federal judge in New Hampshire allowed part of an ACLU lawsuit against U.S. Customs and Border Patrol (CBP) checkpoints in three New England states to continue, but invoked a qualified immunity defense saying CBP agents could not be sued.

Last year, the ACLU sued the CBP over roadside checkpoints in Vermont, New Hampshire and Maine.

The ACLU argued that the CBP roadside checkpoints were conducted for the primary purpose of general crime control and drug interdiction and that they are beyond the scope of the CBP’s authority.

“It is unconstitutional for Border Patrol to use interior checkpoints, nearly 100 miles from the border, as a ruse to unlawfully search and seize people for the purpose of general crime control. Yet this is exactly what Border Patrol is doing with checkpoints in northern New England.”

As NHNPR reported, Judge Landya McCafferty rejected the government’s argument to have the entire case dismissed, “citing a lack of planning for future checkpoints, and the unlikelihood that the named plaintiff in the case, Jesse Drewniak, an avid fly fisherman who routinely travels on I-93, would be stopped in a future checkpoint.”

Yep, that is the Fed’s official position; “the case should be dismissed because we (the CBP) are not planning any future checkpoints in New England, therefore his Fourth Amendment rights would not be violated.”

Isn’t that how law enforcement checkpoints work across the country?

Law enforcement sets up thirty-three different types of temporary checkpoints that violate our rights in different ways, including firewood checkpoints.

“They (firewood checkpoints) operate much like DUI checkpoints used by police departments nationwide. Troopers and local police randomly stop vehicles and search some trunks for firewood.”

Unfortunately, Judge McCafferty’s CBP checkpoint ruling is not all good news.

The Feds argued that letting the public sue CBP officers would harm national security.

“Another special factor counseling hesitation is the potential effect on national security that may arise from grafting an implied damages action against CBP officers onto the remedial structure already provided by Congress, the Executive, and the Judiciary via separate avenues.”

After reviewing a Bivens v. Six Unknown Federal Agents ruling from 1971, McCafferty agreed.

“Judicial efforts to regulate CBP agents’ statutorily-prescribed duties by inferring a constitutional damages action would unquestionably have national security implications.  Id.at 747. For example, Bivens liability could deter agents from vigorous enforcement” of their duties.”

McCafferty seems more worried about not letting Jesse Drewniak sue federal officers than she was about allowing people to sue to stop future CPB checkpoints.

“If the judiciary were to recognize a Bivens action against CBP officers in this context, damages actions and their attendant disruptive inquiries may proliferate. SeeDe La Paz, 786 F.3d at 379. Because recognizing a Bivens action in this context would create a tangible risk of disclosing matters of national security—as well as unwarranted judicial intrusion into an area in which the Judiciary lacks comparative constitutional authority and competence—the court is not inclined to entertain Drewniak’s request to extend Bivens. Because Drewniak seeks to extend Bivens to a new context, and because special factors counsel hesitation against doing so, a Bivens action is not available.”

Here we have a federal judge openly worried about allowing the public to hold federal officers accountable which could open a proverbial ‘floodgate’ of lawsuits; or as she so eloquently put it, “allow attendant disruptive inquires to proliferate.”

Using a 1971 ruling and a recent Trump-dominated Supreme Court ruling about not being able to sue CBP officers who shot and killed a teen from across the border is disturbing on many levels.

As NCRonline reported:

“Americans must know that the impact of decisions like this will only further a troubling culture in border enforcement agencies which flouts accountability and due process and puts migrant lives in danger,” Dylan Corbett, executive director of the nonprofit group Hope Border Institute in El Paso, said.

Even former Justice Ruth Bader Ginsburg seemed concerned, asking how “using excessive force to kill a child” was a matter of national security?

The ACLU said, “the gravity of this ruling could not be clearer given the Trump administration’s militarized rhetoric and policies targeting people at the border.”

Although these are two different cases, one happened along the Mexico border and the other happened 100 miles away from our Norther borders, the outcome is the same.

If Homeland Security’s TSA agents can be sued for stealing cash from airline passengers, why can’t the public sue Homeland Security’s CBP officers at roadside checkpoints?

Apparently, none of that mattered to judge McCafferty, who ruled that CBP officers are exempt from liability because allowing Americans to sue them would endanger our national security.

It is hard not to see the public disconnect that is going on with our justice system, even with the Derek Chauvin trial. Judges and DA’s across the country are either afraid to make changes or they are eager to leave things just the way they are.

This article was originally published at MassPrivateI.


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