How a Supreme Court ruling affects the Tohono O’odham Nation

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Photo Credit: Gerald L. Nino, CBP, US Department of Homeland Security – Public Domain

When I interviewed people at Customs and Border Protection headquarters in Washington, DC, in 2017, one officer told me bluntly, “We are exempt from the Fourth Amendment.” According to him, border police can circumvent the constitution and conduct unlawful searches and seizures. I suppose I didn’t hide my surprised look too well (he said it so authoritatively and casually!) because the officer immediately followed with a quick “that’s what the Supreme Court ruled many decades ago”.

On June 8, the US Supreme Court reaffirmed and affirmed this “exception.” in the Egbert v. boules The court ruled to protect (by making it significantly more difficult) federal agents, particularly border patrol agents, from civil rights lawsuits. At the heart of the case was a Fourth Amendment claim. US Border Protection Agent Erik Egbert entered the property of restaurateur Robert Boule in Blaine, Washington, without a search warrant to check the residency status of some recently arrived guests. When Boule protested Egbert’s presence, Egbert threw him against a vehicle and then to the ground. In its ruling in Egbert’s favour, the Supreme Court wrote that “regulating the behavior of agents at the border has national security implications” and that there was a “risk of undermining border security.”

As SCOTUSblog contributing author Howard Wasserman said NPR, “National security and foreign policy considerations endemic to immigration and immigration enforcement will always make it inappropriate to pursue a claim for damages.” As since 9/11, the broad but ill-defined notion of national security trumps all other.

However, this has a longer history, as the CBP official alluded to at the outset. The geographer Reece Jones, author of the forthcoming edition No One is Protected: How the Border Police Became the Most Dangerous Police Force in the United States, told me this was “the latest example of the continued gutting of Fourth Amendment protections. … The Supreme Court had previously ruled that border patrol agents require lower standards of proof to stop vehicles, operate permanent checkpoints deep inside the US, and are allowed to create racial profiles in all of their work. Even when citizens are subjected to egregious abuses of office, there is no mechanism to hold border guards accountable.”

“I feel like I have no civil rights”

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