Antonieta v. Gonzalez

Full title: MARIA ANTONIETA MARTINEZ-AGUERO, Plaintiff, v. HUMBERTO GONZALEZ and…

Court: United States District Court, W.D. Texas, El Paso Division

Date published: Feb 1, 2005

Civil No. EP-03-CA-411(KC) (W.D. Tex. Feb. 1, 2005)

Opinion

Civil No. EP-03-CA-411(KC).

February 1, 2005

ORDER

KATHLEEN CARDONE, District Judge

Defendant Humberto Gonzalez (hereafter "defendant") moves for summary judgment on his defense of qualified immunity. For the reasons set forth herein, defendant's motion is denied.

I. BACKGROUND

The present complaint arises from an altercation between plaintiff, a citizen of Mexico, and defendant, a Border Patrol Agent, at the Paso del Norte International Bridge on or about October 4, 2001. Defendant allegedly questioned plaintiff about the validity of her visa then, without reason to do so, arrested her for interfering with and disrupting official business at a port of entry in violation of 18 U.S.C. § 111 and 41 C.F.R. § 102-74.390. In the process of arresting plaintiff, defendant grabbed her, pulled her arms behind her back, shoved her against a wall and hit her with his knees and fists.¹

1 Plaintiff states in her affidavit that she suffered an epileptic seizure while handcuffed to a table in an interrogation room as a result of the arrest and has suffered from frequent epileptic seizures since the date of the arrest and had not suffered an epileptic seizure for approximately seventeen years. Defendant in its reply argues that this testimony should be stricken as plaintiff is not competent to provide medical testimony about her condition. "Supporting and opposing affidavits shall [1] be made on personal knowledge, [2] shall set forth such facts as would be admissible in evidence, and [3] shall show affirmatively that the affiant is competent to testify to the matters stated therein." FED. R. CIV. P. 56(e); see also Broadway v. City of Montgomery, 530 F.2d 657, 661 (5th Cir. 1976) ("[e]vidence inadmissible at trial cannot be used to avoid summary judgment"). While the relevant concern in reviewing the merits of plaintiff's claims is the amount of force used by defendant and not the damage resulting from the force used, and certainly the degree of damage may assist in measuring force used, this Court is not inclined to strike the references to epileptic seizures en toto. Testimony pertaining to subjective symptoms, including anything that may be detected by the senses, is clearly admissible and would be a matter known personally to plaintiff. Townsend v. Benya, 287 F. Supp. 2d 868, 875 (N.D. Ill. Oct. 14, 2003). This Court is less inclined to accept as admissible evidence plaintiff's declaration that the force of the arrest triggered an epileptic seizure and resulted in seizures of a greater frequency that she had previously experienced. Neither plaintiff nor her aunt are medical experts per Federal Rule of Evidence 702, and while plaintiff may have personal knowledge of her condition as a result of a prior medical evaluation, she is not competent to make a causation analysis that would require expert knowledge. Holt v. Olmsted Tp. Bd. of Trustees, 43 F. Supp. 2d 812, 819-20 (N.D. Ohio Sept. 18, 1998) (discussing inappropriate lay testimony used in causation analysis). As plaintiff refers to a degree of pain resulting from the force used in her arrest, her statements will be construed as limited to that declaration and shall not be ordered stricken.

Plaintiff claims that defendant's conduct constitutes assault, battery and false arrest under the Federal Tort Claims Act, 28 U.S.C. § 1346(b)(1), §§ 2671-2680, and a violation of her rights under the First,² Fourth and Fifth Amendment of the United States Constitution raised pursuant to Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388 (1971).

2 Plaintiff states that she "is no longer pursuing a First Amendment claim." Resp. Mot. Summ. J. at 2 n. 5. Such is construed as conceding the merits of defendant's motion for summary judgment on the alleged violation of her First Amendment rights. Summary judgment is therefore granted on the First Amendment claim.

II. DISCUSSION

Defendant moves for summary judgment on his asserted defenses of qualified immunity. Plaintiff responds that genuine issues of material fact preclude summary judgment.

A. Standard of Review

A party moving for summary judgment must establish that there are no genuine issues of material fact in dispute and that it is entitled to judgment as a matter of law. FED. R. CIV. P. 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In determining whether a genuine issue has been raised, all ambiguities are resolved and all reasonable inferences are drawn against the moving party. United States v. Diebold, Inc., 369 U.S. 654, 655 (1962); S W Enters. v. Southtrust Bank, 315 F.3d 533, 537 (5th Cir. 2003). Summary judgment is proper when reasonable minds could not differ as to the import of evidence. Anderson, 477 U.S. at 251. The weight of evidence and the credibility of witnesses are not proper considerations in deciding a motion for summary judgment as such determinations are exclusively the province of the jury. Morris v. Covan World Wide Moving, Inc., 144 F.3d 377, 380 (5th Cir. 1998).

B. Qualified Immunity

Qualified immunity shields a government official from liability arising from the performance of discretionary functions. Beltran v. City of El Paso, 367 F.3d 299, 302-303 (5th Cir. 2004). A government official establishes an entitlement to qualified immunity by showing (1) that the conduct occurred while he or she was acting in his official capacity and (2) such action was within the scope of his or her discretionary authority. Id. at 303. Once qualified immunity has been properly invoked, plaintiff must show that the defense does not apply. Id. Determinations as to the applicability of qualified immunity require that this Court ask whether the plaintiff can support a violation of a federal constitutional or statutory right. Id. If plaintiff fails to factually support such a violation, the qualified immunity inquiry ends. Should plaintiff provide facts supporting a violation, the inquiry proceeds to whether the government official's conduct was objectively reasonable in light of clearly established legal rules existing at the time of the alleged violation. Id.

There appears to be no dispute in the present case as to whether defendant was acting in his official capacity at the time of the shooting, whether his actions were within the scope of his discretionary authority or whether defendant has properly invoked the defense. As the defense of qualified immunity is claim-specific, Iacobucci v. Boulter, 193 F.3d 14, 22 (1st Cir. 1999), this Court will discuss the following arguments seriatim: (1) plaintiff under the entry fiction is not afforded rights under the Fourth and Fifth Amendments, (2) plaintiff as an alien is not entitled to the protections of the Fourth Amendment against wrongful arrest or the use excessive of force in arrest and otherwise on the facts cannot substantiate such claims and (3) plaintiff as an alien is not entitled to the protections of the Fifth Amendment.

C. Entry Fiction

Defendant first argues that plaintiff cannot establish a violation of a constitutional right given her status as an alien who had not gained entry into the United States. Defendant relies on United States v. Verdugo-Urquidez, 494 U.S. 259 (1990), as supporting his argument that "[a]s a non-resident alien, who had not gained admission or entry to the United States, she was not entitled to the protections of the First, Fourth, and Fifth Amendments," Mot. Summ. J. at 6.

This argument reflects a merging of two separate legal analyses, the first involving the rights of aliens located outside the territory of the United States and the second involving the "entry fiction," by which "excludable aliens are to be treated as if detained at the border despite their physical presence in the United States," Gisbert v. U.S. Att'y Gen., 988 F.2d 1437, 1442 (5th Cir. 1993); Lynch v. Cannatella, 810 F.2d 1363, 1370 (5th Cir. 1987) (stating "stowaways are legally considered detained at the border . . . even if they are physically present in the United States"); see also United States ex rel. Knauff v. Shaughnessy, 338 U.S. 537, 542 (1950) ("an alien who seeks admission to this country may not do so under any claim of right"). The two analyses reflect separate concerns and are not susceptible to merger into a single analysis in the manner proposed by defendant. As such, this Court will summarily dispose of defendant's entry fiction argument and focus on the more complex question of whether the individual rights invoked have application to an alien under the circumstances of the present case.

The entry fiction limits certain rights to those aliens located within the sovereign territory of the United States but who are denied admission under existing immigration law. Inasmuch as an alien denied admission is not entitled to full array of rights to which a citizen may be entitled, Johnson v. Eisentrager, 339 U.S. 763, 770 (1950) ("[t]he alien, to whom the United States has been traditionally hospitable, has been accorded a generous and ascending scale of rights as he increases his identity with our society"); id. at 771 ("in extending constitutional protections beyond the citizenry, the Court has been at pains to point out that it was the alien's presence within its territorial jurisdiction that gave the Judiciary power to act"), the application of the entry fiction is limited to an alien's rights in immigration proceedings and does not otherwise constitute an absolute bar on constitutional rights.

The "entry fiction" that excludable aliens are to be treated as if detained at the border despite their physical presence in the United States determines the aliens' rights with regard to immigration and deportation proceedings. It does not limit the right of excludable aliens detained within United States territory to humane treatment.

Lynch, 810 F.2d at 1373 (emphasis added); see also Medina v. O'Neill, 838 F.2d 800, 803 (5th Cir. 1988) (emphasis added) ("In Lynch we could conceive of no national interests that would justify 'the malicious infliction of cruel treatment' on an excludable alien").

Given the foregoing, the determination of whether an alien may invoke Fourth and Fifth Amendment protections as an intended beneficiary rests not upon a legal fiction limiting rights in immigration proceedings but rather on individual analyses applicable to the specific amendments following determination of whether the alien is physically located within the sovereign territory of the United States. As there is no question that plaintiff was physically within the sovereign territory of the United States,³ the question becomes whether an alien under plaintiff's circumstances is an intended beneficiary of the protections afforded by the Fourth and Fifth Amendments.

3 Defendant argues that plaintiff effectively was not in the United States as she had not cleared the port of entry and to conclude otherwise would be problematic given the number of aliens who cross into the territorial United States. It suffices to say that the relevant consideration is territorial versus extraterritorial rather than inside or outside the port of entry. Policy arguments pertaining to difficulties caused by those claiming violations or rights within that zone outside the port of entry but within the territorial United States bear little relevance to determination of whether an alien does or does not stand on United States soil, and the law does not turn on such a pragmatic distinction.

D. Fourth Amendment

Plaintiff's complaint reasonably includes claims of wrongful arrest by defendant and defendant's use of excessive force in effecting an arrest in violation of the Fourth Amendment.

The Fourth Amendment to the United States Constitution provides that,

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

If plaintiff were a citizen of the United States, the analysis would immediately proceed to the merits of her wrongful arrest and excessive force claims. In the present case, however, plaintiff is not a citizen of the United States and defendant cites to Verdugo-Urquidez, 494 U.S. 259, in support of his argument that defendant has no Fourth Amendment rights as an alien. The merits of the two claims may only be considered if the Fourth Amendment applies to plaintiff under the circumstances.

1. Verdugo-Urquidez

Defendant argues that the Supreme Court's decision in Verdugo-Urquidez requires the conclusion that the Fourth Amendment does not apply to an alien under the circumstances presented herein as the appellant in that case was not characterized as one of "the people" and therefore entitled to claim Fourth Amendment protection. The Supreme Court in Verdugo-Urquidez defined "the people" referred to in the text of the Fourth Amendment as "a class of persons who are part of a national community or who have otherwise developed sufficient connection with this country to be considered part of that community." Id. at 265. The Fifth Circuit later referred to this definition in the course of its discussion of Second Amendment rights in United States v. Emerson, 270 F.3d 203, 229 (5th Cir. 2001), as equating "to individual Americans."⁴ Verdugo-Urquidez involved "an alien who . . . had no previous significant voluntary connection with the United States," 494 U.S. at 271, prior to Mexican authorities turning him over to the United States Border Patrol. Id. at 262. Agents of the Drug Enforcement Administration with the cooperation of Mexican authorities searched Verdugo-Urquidez's residences in Mexico and seized documents purportedly establishing his involvement in drug smuggling operations. Id. at 262-63. Verdugo-Urquidez moved to suppress the documentary evidence as obtained in violation of his Fourth Amendment rights. Id. at 263. The district court granted the motion to suppress and the Ninth Circuit Court of Appeals affirmed its decision. Id. The Supreme Court reversed the decision, concluding that the exclusionary rule did not apply.

4 Webster's Third New International Dictionary defines "American" as "belonging to, inhabiting, coming from America." The Merriam-Webster Online Dictionary defines "American" as "an American Indian of No[rth] America or So[uth] America[;] . . . a native or inhabitant of No[rth] America or So[uth] America[; or] . . . a citizen of the [United States]." The reference to "individual Americans" should be read in the context of the Court's discussion of collective versus individual rights, Emerson, 270 F.3d at 229 ("Proponents of the states' rights and sophisticated collective rights models argue that the phrase 'bear arms only applies to a member of the militia carrying weapons during actual militia service. Champions of the individual rights model opine that 'bear arms' refers to any carrying of weapons, whether by a soldier or a civilian."). The plaintiff in that case appears to be a resident of the United States and therefore one who would be susceptible to the colloquial characterization of "American". Reading "individual Americans" as an explanation of the Supreme Court's definition of "the people" would result in an ambiguous and relatively unworkable phrase that could easily be interpreted in an over-or under-inclusive manner.

Prior to embarking on a substantive discussion of Verdugo-Urquidez, likely the best guidepost for analyzing the present issue, it is worth identifying potential detractors from its ability to dictate the outcome of the case at hand. First, the decision does not involve the Fourth Amendment rights of those aliens physically located either legally or illegally within sovereign United States territory.⁵ As such, the facts of the decision alone may limit the potential relevancy of Verdugo-Urquidez. Second, the definition of "the people" for purposes of Fourth Amendment application relied on by the defendant as rendering the Amendment unavailable to plaintiff is not necessarily binding authority governing the disposition of the present case.

5 If plaintiff were an illegal alien rather than an alien who had requested and been granted authorization to enter the United States, the question posed would be markedly different in nature. The Supreme Court in Verduo-Urquidez notes that "[e]ven assuming [illegal] aliens would be entitled to Fourth Amendment protections, their situation is different from respondent's. The illegal aliens in [an earlier decision] were in the United States voluntarily and presumably had accepted some societal obligations; but respondent had no voluntary connection with this country that might place him among 'the people' of the United States." Id. at 272-73. The statement is curious given that the defendant was not an illegal alien but was instead transported by the government into the United States and has prompted some to conclude "Chief Justice Rehnquist has not yet adduced this claim as a basis for denying that undocumented aliens have rights under the Fourth and Fourteenth Amendments, but may do so soon." Gerald L. Neuman, The Lost Century of American Immigration Law (1776-1875), 93 COLUM. L.REV. 1833, 1839 (1993).

The second point is worth some explanation as it may not be evident from the decision. The decision in Verdugo-Urquidez is clearly not a plurality as the author, Chief Justice Rehnquist, is joined in his opinion by Justices White, O'Connor, Scalia, and Kennedy. Justice Kennedy, however, authored a concurring opinion in which he indicates that he "do[es] not . . . depart in fundamental respects from the opinion of the Court, which I join," id. at 275 (Kennedy, J., concurring), but proceeds to state that "I cannot place any weight on the reference to 'the people' in the Fourth Amendment as a source of restricting its protections," id. at 276 Not surprisingly, Justice Kennedy's concurrence has caused some to question whether the majority decision is in fact a majority decision in adopting its definition of "the people" for purposes of Fourth Amendment analysis. See Lamont v. Woods, 948 F.2d 825, 835 n. 7 (2d Cir. 1991) (noting that a "plurality of the Court" embraced the definition of "the people"); see also Michael J. Wishnie, Immigrants and the Right to Petition, 78 N.Y.U. L.REV. 667, 681 (2003) ("Somewhat bafflingly, Justice Kennedy disagreed with Chief Justice Rehnquist's analysis but nonetheless joined the majority opinion in full, providing the fifth vote for the Court's opinion."); Gerald Neuman, Whose Constitution?, 100 YALE L.J. 909, 972 (1991) (noting that Justice Kennedy's concurrence "diverged so greatly from Rehnquist's analysis and conclusions that Rehnquist seemed to really be speaking for a plurality of four.").

As such, there is a substantial question as to whether the definition of "the people" is binding on this Court as a majority decision of the Supreme Court or merely persuasive authority by virtue of its characterization as a plurality decision. This Court is inclined to conclude the latter as the substance of Justice Kennedy's concurring opinion cannot be reconciled with the majority opinion in which he joined. See, e.g., United States v. Guitterez, 983 F. Supp. 905, 915 (N.D. Cal. 1998) ("[i]t is also noteworthy that a majority of the justices did not subscribe to Chief Justice Rehnquist's opinion, particularly with respect to his discussion and analysis regarding the scope of the Fourth Amendment as it applies to illegal aliens" (emphasis in original)), rev'd on other grounds by United States v. Guitterez, 203 F.3d 833 (9th Cir. 1999). While other courts may arrive at a contrary conclusion given the peculiar form of the decision, see, e.g., United States v. Esparza-Mendoza, 265 F. Supp. 2d 1254, 1261 (D. Utah 2003) ("This court is not at liberty to second-guess Justice Kennedy's direct statement that he was joining the Court's opinion."), this Court concludes that the substance of the concurring opinion directs otherwise. A contrary conclusion exalts the form of the decision over its substance and does not resolve Justice Kennedy's concurrence which directly contradicts the substance of the majority opinion in which he joined. The definition of "the people" advanced in Verdugo-Urquidez is therefore considered as persuasive authority to the extent it applies to resolution of the present motion for summary judgment.

2. "The People"

As the definition of "the people" set forth in Verdugo-Urquidez is not dispositive of defendant's argument, it is necessary to resolve whether an alien, under the circumstances presented herein, may be characterized as one of "the people" for purposes of claiming the protections of the Fourth Amendment or may otherwise claim its protections. The analysis in Verdugo-Urquidez consists of an examination of constitutional text and supporting history. As such, this Court shall engage in a similar analysis, reviewing the portions of Verdugo-Urquidez specific to that analysis, evaluating the same under the context of the present case and providing supporting discussion where necessary.

The Supreme Court began its interpretation of the phrase "the people" by reviewing the various references to that phrase throughout the Constitution.⁶ Verdugo-Urquidez, 494 U.S. at 265. While noting that its "textual exegesis is by no means conclusive," it concludes that "'the people' protected by the Fourth Amendment . . . refers to a class of persons who are part of a national community or who have otherwise developed sufficient connection with this country to be considered part of that community." Id. The Court notes that this phrase stands in contrast to the terms "person" and "accused" used in the Fifth⁷ and Sixth⁸ Amendments. Id. at 265-66. Of the Court's conclusions on its textual analysis in Verdugo-Urquidez, little more need be said save noting its concurrence with this Court's conclusion that it is not conclusive.

6 See, e.g., U.S. Const. pmbl. ("We the People of the United States, in order to form a more perfect Union, . . . do ordain and establish this Constitution for the United States of America."); U.S. Const. amend. I ("the right of the people peaceably to assemble"); U.S. Const. amend II ("the right of the people to keep and bear Arms"); U.S. Const. amend. IV ("[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures"); U.S. Const. amend. IX ("[t]he enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people"); U.S. Const. amend. X ("[t]he powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people").

7 The Fifth Amendment provides that "No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation." U.S. Const. amend. V (emphasis added).

8 "In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence." U.S. Const. amend. VI (emphasis added).

Verdugo-Urquidez stands as the only current Supreme Court decision to construe the phrase "the people," however it is not the only decision to interpret that phrase. An interpretation may be found in Dred Scott v. Sandford, 60 U.S. 393 (1856), ultimately reversed by the adoption of the Thirteenth and Fourteenth Amendments. See, e.g., Sugarman v. Dougall, 413 U.S. 634, 652 (1973) (Rehnquist, J., dissenting). While Dred Scott is commonly labeled by scholars as one of the more infamous decisions in Supreme Court history, see, e.g., Jack M. Balkin. Bush v. Gore and the Boundary Between Law and Politics, 110 YALE L.J. 1407, 1449 (2001) ("Infamous and unjust cases like Dred Scott v. Sandford — which held that blacks could not be citizens . . . tend to be remembered as examples of how courts should not behave."); Cass R. Sunstein, The Dred Scott Case with Notes on Affirmative Action, the Right to Die Same-Sex Marriage, 1 GREEN BAG 2D 39 (1997), aspects of its textual analysis are worthy of some discussion as it elucidates the present textual analysis.

The Dred Scott court focused on the Preamble to the Constitution as the source of its text-based search for the meaning of "the people".

The brief preamble sets forth by whom it was formed, for what purposes, and for whose benefit and protection. It declares that it is formed by the people of the United States; that is to say, by those who were members of the different political communities in the several States; and its great object is declared to be to secure the blessings of liberty to themselves and their posterity. It speaks in general terms of the people of the United States, and of citizens of the several States, when it is providing for the exercise of the powers granted or the privileges secured to the citizen. It does not define what description of persons are intended to be included under these terms, or who shall be regarded as a citizen and one of the people. It uses them as terms so well understood, that no further description or definition was necessary.

Scott, 60 U.S. at 410-11 (emphasis added).

The Court's discussion of the Preamble raises a number of interesting points. It acknowledges that the Preamble is phrased in general terms. It further notes that the terms citizen and "the people" are not defined. Acknowledging these generalities, the Court then proceeds to define "the people" as "members of the different political communities in the several States" and concludes that the definition is obvious as they are "terms so well understood, that no further description or definition was necessary." The observations made as to the Preamble apply with equal force to the other provisions of the Constitution. The Court's definition is not as supportable under the plain meaning of the text.

The Dred Scott Court also stated that

[t]he words 'people of the United States' and 'citizens' are synonymous terms . . . They both describe the political body who, according to our republican institutions, form the sovereignty, and who hold the power and conduct the Government through their representatives. They are what we familiarly call the 'sovereign people,' and every citizen is one of this people, and a constituent member of this sovereignty.

Id. at 404. The phrase "the people" and "citizen" separately appear in the Constitution. As such, the definition of "the people" set forth above fails under the well established principle of statutory construction that "[t]he use of different terms within related statutes generally implies that different meanings were intended," 2A N. SINGER, SUTHERLAND ON STATUTES AND STATUTORY CONSTRUCTION § 46:06, p. 194 (6th ed. 2000), and as such according different meanings comports with a fundamental tool of construction, see, e.g., Marbury v. Madison, 5 U.S. (1 Cranch) 137, 173-76 (1803) (utilizing tools of statutory construction). The result of this textual analysis was a single group of beneficiaries under the Constitution, a conclusion which fails under the most basic statutory principles.⁹

9 "It is nowhere declared in the Constitution what 'a citizen' is, or what constitutes citizenship. . . . But the fourteenth amendment does define citizenship and the relations of citizens to the State and Federal government. It ordains that 'all persons born or naturalized in the United States and subject to the jurisdiction thereof are citizens of the United States and of the State where they reside.' Citizenship in a State is made by residence and without reference to the consent of the State." Slaughter-House Cases, 83 U.S. 36, 52 (1872); but see Alexander M. Bickel, Citizenship in the American Constitution, 15 ARIZ. L.REV. 369, 369-70 (1973) ("[C]itizenship was nowhere defined in the original Constitution. It was not important. . . . [T]he original Constitution presented the edifying picture of a government that bestowed rights on people and persons, and held itself bound by certain standards of conduct in relations with people and persons, not with some legal construct called citizen.").

Unlike the analysis in Dred Scott, the Verdugo-Urquidez Court employs this basic standard of statutory construction in noting that the use of the different terms "people," "person," and "accused" implies separate meanings. But while "accused" has a distinct meaning from "person" or "people" in the context of criminal proceedings, the difference between "person" and "people" is that of singular word form as compared to plural word form. The Court apparently rejects this distinction out of hand in stating that "[c]ontrary to the suggestion of amici curiae that the Framers used this phrase simply to avoid [an] awkward rhetorical redundancy, . . . 'the people' seems to have been a term of art employed in select parts of the Constitution." Verdugo-Urquidez, 494 U.S. at 265 (citation and internal quotation marks omitted).

Justice Brennan comments on Chief Justice Rehnquist's conclusion, noting that "[t]he drafting history of the Fourth Amendment . . . does not support the majority's interpretation of 'the people.'" Verdugo-Urquidez, 494 U.S. at 288 (Brennan, J., dissenting). The Framers were offered alternative drafts of the Fourth Amendment, replacing "the people" with "citizens," "freemen" "residents," or "the American people" but elected not to incorporate these changes,¹⁰ id., some terms which appear to be the effective equivalents of the definition of "the people" offered in the majority opinion. Michael Scaperlanda, Polishing the Tarnished Golden Door, 1993 WIS. L.REV. 965, 998 (1993) (noting that "the Court's textual analysis [in Verdugo] finds no precedential support. Until Verdugo . . ., no Supreme Court case suggested that the word 'people' was less catholic than the terms 'person' or 'accused' when used in the context of the criminal procedure amendments."). Given the definition of "the people" set forth in Verdugo-Urquidez, which in the spectrum of allegiance to the United States is closer to the definition of "citizen"¹¹ than it is to anyone, it is difficult to rest such a sweeping definitional distinction on a numeric distinction. It could just as well be said that "the people" is comprised of the aggregate "person[s]" and the individual would be the beneficiary of rights afforded the group.

10 69th Cong. 1st Sess. (1927), H.Doc. No. 398, at p. 1034 (Letter of the president of the Federal Convention, September 17, 1787, to the President of Congress, transmitting the Constitution: "That every Freeman has a right to be secure from all unreasonable searches and seizures of his person his papers or his property, and therefore, that all Warrants to search suspected places or seize any Freeman his papers or property, without information upon Oath or Affirmation of sufficient cause, are grievous and oppressive; and that all general Warrants (or such in which the place or person suspected are not particularly designated) are dangerous and ought not to be granted."); 2 LETTERS OF RICHARD HENRY LEE 442 (James C. Ballagh ed., 1970) ("the Citizens shall not be exposed to unreasonable searches, seizure of their persons, houses, papers, or property.").

11 The term "citizen" is itself used throughout the Constitution, implying a separate meaning than would be ascribed "the people". See, e.g., U.S. Const. amend. XIV, § 1 ("[n]o State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States"); U.S. Const. art. I, § 2, cl. 2 (U.S. Representatives must be "seven Years a Citizen of the United States"); U.S. Const. art. I, § 3, cl. 3 (U.S. Senators must be "nine Years a Citizen of the United States"); U.S. Const. art. II, § 1, cl. 5 (the President must be not only a citizen, but a "natural born

Citizen" of the United States); U.S. Const. art. Ill, § 2, cl. 1 (creating alienage jurisdiction in Federal Court for cases involving U.S. citizens and "foreign . . . [c]itizens"); U.S. Const. amend. XV, § 1 ("[t]he right of citizens of the United States to vote shall not be denied or abridged . . . on account of race"); U.S. Const. amend. XIX, cl. 1 ("[t]he right of citizens of the United States to vote shall not be denied or abridged . . . on account of sex"); U.S. Const. amend. XXIV, § 1 ("[t]he right of citizens of the United States to vote in any primary or other election . . . shall not be denied or abridged . . . by reason of failure to pay any poll tax or other tax"); U.S. Const. amend. XXVI. § 1 ("[t]he right of citizens of the United States, who are eighteen years of age or older, to vote shall not be denied or abridged . . . on account of age).

The Preamble refers to "the people of the United States," and such reference served as a basis for the Supreme Court in Dred Scott to equate "the people" to "citizen,"¹² notwithstanding the interpretive difficulties in so doing as it renders the term "citizen" surplusage. While "the people" may be read as shorthand for "the people of the United States," that phrase itself may alternatively be interpreted as "the people within the territory of the United States" rather than "citizens of the United States." It suffices to say that the reason for using the plural version of the word "person" is not apparent from the text employed throughout the Constitution. See LEONARD LEVY, ORIGINAL INTENT AND THE FRAMERS' CONSTITUTION 350 (1988) ("The Framers had a genius for studied imprecision and calculated ambiguity. They relied on generalized terms . . . because politics required compromise, and because compromise required ambiguity.").

12 The Court reasoned that

It is true, every person, and every class and description of persons, who were at the time of the adoption of the Constitution recognized as citizens in the several States, became also citizens of this new political body; but none other; it was formed by them, and for them and their posterity, but for no one else. And the personal rights and privileges guaranteed to citizens of this new sovereignty were intended to embrace those only who were then members of the several State communities, or who should afterwards by birthright or otherwise become members, according to the provisions of the Constitution and the principles on which it was founded. It was the union of those who were at that time members of distinct and separate political communities into one political family, whose power, for certain specified purposes, was to extend over the whole territory of the United States. And it gave to each citizen rights and privileges outside of his State which he did not before possess, and placed him in every other State upon a perfect equality with its own citizens as to rights of person and rights of property; it made him a citizen of the United States.

It becomes necessary, therefore, to determine who were citizens of the several States when the Constitution was adopted. And in order to do this, we must recur to the Governments and institutions of the thirteen colonies, when they separated from Great Britain and formed new sovereignties, and took their places in the family of independent nations. We must inquire who, at that time, were recognized as the people or citizens of a State, whose rights and liberties had been outraged by the English Government; and who declared their independence, and assumed the powers of Government to defend their rights by force of arms.

Scott, 60 U.S. at 406-407.

Ultimately, it suffices to say that the Supreme Court has not in the past exclusively relied on a textual analysis. If such were the case, one may be inclined to ask why equal protection applies with equal force to the federal government when the Constitution expressly proscribes state action through the Fourteenth Amendment. Schneider v. Rusk, 377 U.S. 163, 168 (1964) ("while the Fifth Amendment contains no equal protection clause, it does forbid discrimination that is 'so unjustifiable as to be violative of due process"). One may also ask why the Fourth Amendment protections are made applicable to to the states when by its text it restrains only the federal government. Wolf v. People of the State of Colo., 338 U.S. 25, 27-28 (1949), overruled in part on other grounds by Mapp v. Ohio, 367 U.S. 643 (1961) ("The security of one's privacy against arbitrary intrusion by the police — which is at the core of the Fourth Amendment — is basic to a free society. It is therefore implicit in 'the concept of ordered liberty' and as such enforceable against the States through the Due Process Clause" of the Fourteenth Amendment). While these examples are not exhaustive, they are illustrative of a constitutional interpretations that do not necessarily hinge on the text and instead require an interpretation consistent with history and if necessary rights found elsewhere in the Constitution. As such, this Court notes the conclusion of the Ninth Circuit Court of Appeals in its textual analysis

We do not read the phrase 'The right of the people to be secure' as restricting the application of the fourth amendment to any special class of people. The language of the amendment does not so limit 'people,' and we will not insert qualifying language into the amendment to limit its application in such a fashion. United States v. Verdugo-Urquidez, 856 F.2d 1214, 1223 (9th Cir. 1988).

As the text of the Fourth Amendment ultimately does not identify its intended beneficiaries, it is necessary to review history to see if it points to a solution.¹³ The Supreme Court's historical observations in Verdugo-Urquidez are two-fold, neither of which necessarily bears relevance to the present case. First, the "purpose [of the Fourth Amendment] was to restrict searches and seizures which might be conducted by the United States in domestic matters." Verdugo-Urquidez, 494 U.S. at 266 (emphasis added). Second, "[t]here is . . . no indication that the Fourth Amendment was understood by contemporaries of the Framers to apply to activities of the United States directed against aliens in foreign territory or in international waters." Id. at 267 (emphasis added). Both observations refer to extraterritorial application and do not address the domestic rights of aliens. As such, further inquiry is required.

13 The parties do not refer to history in their briefs, relying instead on case citations that do not resolve the issue. The historical references provided are therefore this Court's research on the subject and likely not exhaustive of potential resources.

It is helpful to begin this analysis by reviewing general observations made and conclusions drawn by the Supreme Court as to the Fourth Amendment.

It would not be possible to add to the emphasis with which the framers of our Constitution and this court . . . have declared the importance to political liberty and to the welfare of our country of the due observance of the rights guaranteed under the Constitution by [the Fourth and Fifth] amendments. The effect of the decisions cited is: That such rights are declared to be indispensable to the 'full enjoyment of personal security, personal liberty and private property'; that they are to be regarded as of the very essence of constitutional liberty; and that the guaranty of them is as important and as imperative as are the guaranties of the other fundamental rights of the individual citizen — the right to trial by jury, to the writ of habeas corpus, and to due process of law. It has been repeatedly decided that these amendments should receive a liberal construction, so as to prevent stealthy encroachment upon or 'gradual depreciation' of the rights secured by them, by imperceptible practice of courts or by well-intentioned, but mistakenly overzealous, executive officers. Gouled v. United States, 255 U.S. 298, 303-304 (1921) (citations omitted), overrruled in part on other grounds by Warden, Md. Penitentiary v. Hayden, 387 U.S. 294, 303-304 (1967).

The Supreme Court, as in other areas, refers to English common law known to the Framers in defining the parameters of Fourth Amendment rights.

In order to ascertain the nature of the proceedings intended by the fourth amendment to the constitution under the terms 'unreasonable searches and seizures,' it is only necessary to recall the contemporary or then recent history of the controversies on the subject, both in this country and in England. The practice had obtained in the colonies of issuing writs of assistance to the revenue officers, empowering them, in their discretion, to search suspected places for smuggled goods, which James Otis pronounced 'the worst instrument of arbitrary power, the most destructive of English liberty and the fundamental principles of law, that ever was found in an English law book;' since they placed 'the liberty of every man in the hands of every petty officer.' This was in February, 1761, in Boston, and the famous debate in which it occurred was perhaps the most prominent event which inaugurated the resistance of the colonies to the oppressions of the mother country.

Boyd v. United States, 116 U.S. 616, 624-25 (1886), overruled in part on other grounds by Warden, Md. Penitentiary v. Hayden, 387 U.S. 294 (1967); see also Wilson v. Arkansas, 514 U.S. 927, 931 (1995) ("In evaluating the scope of this right, we have looked to the traditional protections against unreasonable searches and seizures afforded by the common law at the time of the framing."). American statesman who drafted the Constitution were presumably familiar with significant decisions in English law. Id. at 626.

As every American statesman, during our revolutionary and formative period as a nation, was undoubtedly familiar with this monument of English freedom, [ Entick v. Carrington, 95 Eng. Rep. 807 (K.B. 1765).] and considered it as the true and ultimate expression of constitutional law, it may be confidently asserted that its propositions were in the minds of those who framed the fourth amendment to the constitution, and were considered as sufficiently explanatory of what was meant by unreasonable searches and seizures.

Boyd, 116 U.S. at 626-27.

The importance of Entick in Fourth Amendment jurisprudence cannot be understated. The Supreme Court felt it significant enough to quote it copiously making it a foundation of Fourth Amendment jurisprudence.

The principles laid down in this opinion . . . Entick affect the very essence of constitutional liberty and security. They reach further than the concrete form of the case then before the court, with its adventitious circumstances; they apply to all invasions on the part of the government and its employees of the sanctity of a man's home and the privacies of life. It is not the breaking of his doors, and the rummaging of his drawers, that constitutes the essence of the offense; but it is the invasion of his indefeasible right of personal security, personal liberty, and private property, where that right has never been forfeited by his conviction of some public offense, — it is the invasion of this sacred right which underlies and constitutes the essence of Lord CAMDEN's judgment. . . . Can we doubt that when the fourth and fifth amendments to the constitution of the United States were penned and adopted, the language of Lord CAMDEN was relied on as expressing the true doctrine on the subject of searches and seizures, and as furnishing the true criteria of the reasonable and 'unreasonable' character of such seizures? . . . The struggles against arbitrary power in which they had been engaged for more than 20 years would have been too deeply engraved in their memories to have allowed them to approve of such insidious disguises of the old grievance which they had so deeply abhorred.

Id. at 630.

But while Entick provides valuable insight into the Fourth Amendment right, other sources of English law may provide valuable insight into the status of aliens. Alden v. Maine, 527 U.S. 706, 715 (1999) (identifying English law at the time Constitution was ratified as relevant in constitutional analysis); see also Neder v. United States, 527 U.S. 1, 30 (1999) (Scalia, J., dissenting) (referring to William Blackstone as "the Framers' accepted authority on English law and the English Constitution"). The Magna Carta further holds a venerable place in Constitutional jurisprudence. See, e.g., Duncan v. State of La., 391 U.S. 145, 151 (1968) (discussing the origins of jury trials with reference to the Magna Carta); Trop v. Dulles, 356 U.S. 86, 100 (1958) (discussing the Magna Carta in context of Eighth Amendment). Neither English law generally nor the Magna Carta specifically supports the proposition that alien friends were considered less worthy of protection.

In his Commentaries, Blackstone describes the concepts of allegiance expected from and governmental protections due citizens and aliens.

Allegiance, both express and implied, is however distinguished by the law into two sorts or species, the one natural, the other local; the former being also perpetual, the latter temporary. Natural allegiance is such as is due from all men born within the king's dominions immediately upon their birth. . . . Natural allegiance is therefore a debt of gratitude; which cannot be forfeited, cancelled, or altered, by any change of time, place, or circumstance, nor by any thing but the united concurrence of the legislaturen.

* * *

Local allegiance is such as is due from an alien, or stranger born, for so long time as he continues within the King's dominion and protection: and it ceases the instant such stranger transfers himself from this Kingdom to another. Natural allegiance is therefore perpetual, and local temporary only: and that for this reason, evidently founded upon the nature of government; that allegiance is a debt due from the subject, upon an implied contract with the prince, that so long as the one affords protection, so long the other will demean himself faithfully. . . . As therefore the prince is always under a constant tie to protect his natural-born subjects, at all times and in all countries, for this reason their allegiance due to him is equally universal and permanent. But, on the other hand, as the prince affords his protection to an alien, only during his residence in this realm, the allegiance of an alien is confined (in point of time) to the duration of such his residence, and (in point of locality) to the dominions of the British empire.

1 WILLIAM BLACKSTONE, COMMENTARIES ON THE LAWS OF ENGLAND 357-59 (1769) (available at http://www.yale.edu/lawweb/avalon/blackstone/bk1 ch10.htm) (emphasis added).¹⁴

14 Modern English courts reviewing the same history do not differ on this conclusion. "[A]lien friends have long since been, and are at the present day, treated, in reference to civil rights, as if they were British subjects, and are entitled to the enjoyment of all personal rights of a citizen, including the right to sue in the King's Courts." Porter v. Freudenberg, [1915] 1 App. Cas. 857, 869 (K.B. 1914) (emphasis added).

Blackstone refers to international law, then referred to as the law of nations, in the form of safe conducts granted by the crown, by which aliens not characterized as enemies were protected in English territory. "Safe conduct" is defined as "[a] privilege granted by a belligerent allowing an enemy, a neutral, or some other person to travel within or through a designated area for a specified purpose[; or] . . . [a] document conveying this privilege. . . . The grantee is inviolable so long as he complies with the conditions imposed on him or necessitated by the circumstances of the case." BLACK'S LAW DICTIONARY (8th ed. 2004). Blackstone states that

Upon exactly the same reason stands the prerogative of granting safe-conducts, without which by the law of nations no member of one society has a right to intrude into another. And therefore . . . it is left in the power of all states . . . to take such measures about the admissions of strangers, as they think convenient; those being ever excepted who are driven on the coasts by necessity, or by any cause that deserves pity or compassion. Great tenderness is shewn by our laws, not only to foreigners in distress (as will appear when we come to speak of shipwrecks) but with regard also to the admissions of strangers who come spontaneously. For so long as their nation continues at peace with ours, and they themselves behave peaceably, they are under the king's protection; though liable to be sent home whenever the king sees occasion. But no subject of a nation at war with us can, by the law of nations, come into the realm, nor can travel himself upon the high seas, or send his goods and merchandize from one place to another, without danger of being seized by our subject, unless he had letters of safe-conduct; which by divers ancient statutes must be granted under the king's great seal and inrolled in chancery, or else are of no effect: the king being supposed the best judge of such emergencies, as may deserve exception from the general law of arms.

1 WILLIAM BLACKSTONE, COMMENTARIES ON THE LAWS OF ENGLAND 251-52 (1769) (available at http://www.yale.edu/lawweb/avalon/blackstone/bk1ch7.htm).¹⁵ Blackstone adds that violation of safe conducts was prohibited under municipal laws notwithstanding its international law character. 4 WILLIAM BLACKSTONE, COMMENTARIES ON THE LAWS OF ENGLAND 68 (1769) ("[t]he principal offence against the law of nations, animadverted on as such by the municipal laws of England, are of three kinds; 1. Violation of safe-conducts; 2. Infringement of the rights of embassadors; and, 3. Piracy" (emphasis added)).

15 "To say that aliens were not citizens, and in particular that they could not hold real estate, was not to say that aliens were to be treated as outlaws. On the contrary, civilized countries extended to aliens the protection of the laws. Blackstone noted that the King of England protected aliens while they were within the realm, although he protected his natural-born subjects everywhere and at all times." John Harrison, Reconstructing the Privileges or Immunities Clause, 101 YALE L J 1385, 1442 (1992).

Protections due specific aliens may be found in the Magna Carta, which offered safe passage to foreign merchants not characterized as alien enemies.

All merchants shall have safe and secure exit from England, and entry to England, with the right to tarry there and to move about as well by land as by water, for buying and selling by the ancient and right customs, quit from all evil tolls, except (in time of war) such merchants as are of the land at war with us. And if such are found in our land at the beginning of the war, they shall be detained, without injury to their bodies or goods, until information be received by us, or by our chief justiciar, how the merchants of our land found in the land at war with us are treated; and if our men are safe there, the others shall be safe in our land.

Magna Carta 1215 ¶ 41 (available at http://www.yale.edu/lawweb/avalon/medieval/magna.htm). Significantly, the Magna Carta also provided that "No free man¹⁶ shall be arrested . . . except by the lawful judgment of his peers or by the law of the land." The Magna Carta ¶ 39.

16 It is debatable as to whether "freeman" in 1215 translates to all English males, "freeholders," or landowners. Jane Rutherford, The Myth of Due Process, 72 B.U. L.REV. 1, 66 n. 336 (1992). As to the definition of that term at the time the Constitution was ratified, John Adams stated "[t]here are but two sorts of men in the world, freemen and slaves. The very definition of a freeman . . . is one who is bound by no law to which he has not consented." JOYCE APPLEBY, LIBERALISM AND REPUBLICANISM IN THE HISTORICAL IMAGINATION 158 (1992).

Evident in English law is concerns as to the proper treatment of alien friends, or rather those not characterized as alien enemies. The protections afforded in domestic matters were not readily distinguishable from those afforded a citizen, about which Blackstone notes "[g]reat tenderness is sh[o]wn by our laws . . . to foreigners . . . who come spontaneously." Blackstone's references to safe conduct, while generally a question of international law, indicates that violations of safe conduct were protected under domestic law. The distinction between international law, arguably of little value in its modern form in interpreting the nature of domestic rights, Antonin Scalia, Commentary, 40 ST. LOUIS U.L.J. 1119, 1119 (1996) ("United States courts enforce international 'human rights norms' only to the extent that such norms are embodied in national laws."), and domestic law is not easily dismissed as an irrelevancy when considered as law at the time the Constitution was framed.

As Chief Justice Marshall notes in one of the earlier Supreme Court decisions that "the Court is bound by the law of nations which is a part of the law of the land." The Nereide, 13 U.S. (9 Cranch) 388, 423 (1815); see also The Paquete Habana, 175 U.S. 677, 700 (1900) ("International law is part of our law, and must be ascertained and administered by the courts of justice of appropriate jurisdiction, as often as questions of right depending upon it are duly presented for their determination"); Scalia, Commentary, 40 ST. LOUIS U.L.J. at 1120 (stating that in The Paquete Habana the Supreme Court "understood 'international law' as a kind of common law of the nations, serving an interstitial function, and relevant only in the absence of contrary law established by the political branches of government"). The Framers were well aware of this practice in international law, encouraging states to provide laws equivalent to the local practice in England. 21 JOURNALS OF THE CONTINENTAL CONGRESS 1136-37 (G. Hunt ed. 1912)) ("in 1781 the Congress implored the States to vindicate rights under the law of nations . . . call[ing] upon state legislatures to 'provide expeditious, exemplary, and adequate punishment' for 'the violation of safe conducts or passports'"). Absent projecting the modern application of international law on constitutional interpretation, it cannot be said that the international law described by Blackstone would be irrelevant to the Framers in determining the intended scope of the Fourth Amendment.¹⁷

17 The Supreme Court, in discussing the constitutional rights of aliens, has stated in domestic matters that "[m]ere lawful presence in the country creates an implied assurance of safe conduct." Eisentrager, 339 U.S. at 770. It would be a strange coincidence indeed if the Court's reference to "safe conduct" discussing the rights of an alien was a mere coincidental use of language and not a reference to the practice.

It is not beyond comprehension, given the role of merchant in facilitating commerce at the time the Magna Carta issued and the evolution of modern transportation permitting end users of goods to travel to the source of such goods that the practice of protecting merchants would encompass the modern day border migratory. The Supreme Court itself has acknowledged that commerce has undergone radical transformations since the Constitution was drafted. United States v. Lopez, 514 U.S. 549, 574 (1995) (" [s]tare decisis . . . forecloses us from reverting to an understanding of commerce that would serve only an 18th-century economy, dependent then upon production and trading practices that had changed but little over the preceding centuries"). In modern times with the availability of automobiles, it could be said that the buying and selling of goods by migrants within the narrow regions proscribed by use of border crossing cards is the modern equivalent of the merchant at the time of the Magna Carta. See Phil Magers, Analysis: Bush Border Move May Win Votes, WASH. TIMES, Aug. 10, 2004 ("Mexicans and U.S. border businessmen and politicians have been complaining to Washington that the legal visitors should have more time to shop, conduct business or vacation. The cards were never intended for work but to foster commerce."). One need not look far to find the economic impact of legal border crossings. See, e.g., Gary Fields, Security Programs To Speed Action On Illegal Aliens, WALL STREET J., Aug. 11, 2004, at A4 (quoting Undersecretary for Border and Transportation Security Asa Hutchinson as identifying "significant commercial benefit for border communities" in increasing the length of stay permitted by border crossing cards); Jerry Seper, Border Plan Expedites Removals, Extends Visits; Homeland Security Draws Line at Legality, Mexican Nationality, WASHINGTON TIMES, Aug. 11, 2004, at A3 ("The biometric and machine-readable Laser Visa cards allow visitors who have undergone criminal background checks to enter the United States to make 'positive contributions' to the U.S. economy."). If the practice incorporated into the Magna Carta were considered capable of such an extension, and given the Framers concerns in the areas of commerce and encouraging a desirable alien immigration, it is possible that lawful aliens would be subject to Fourth Amendment protections.

In light of the foregoing authority on English law, there is little indication that the Framers would rely on English law as a source for denying aliens protections against unlawful search and seizure. As such, the question becomes whether United States history or law at the time the Constitution was ratified requires such a conclusion. The law of the States does not reveal protections afforded only citizens, instead revealing the spectrum of language used in the proposed drafts of the Fourth Amendment.¹⁸

18 Many of the State provisions used the "law of the land" language found in the Magna Carta and many further afforded rights to men or freemen rather than citizens. See Del. Const., Declaration of Rights, art. 12 (1776) ("every Freeman for every Injury done him in his Goods, Lands or Person, by any other Person, ought to have Remedy by the Course of the Law of the Land, and ought to have Justice and Right for the Injury done to him freely without Sale, fully without any Denial, and speedily without Delay, according to the Law of the Land."); Mass. Const., Part I, art. XII (1780) ("no subject shall be arrested, imprisoned, despoiled, or deprived of his property, immunities, or privileges, put out of the protection of the law, exiled or deprived of his life, liberty, or estate, but by the judgment of his peers, or the law of the land"); Md. Const., Declaration of Rights, art. XXI (1776) ("no freeman ought to be taken, or imprisoned, or disseized of his freehold, liberties, or privileges, or outlawed, or exiled, or in any manner destroyed, or deprived of his life, liberty, or property, but by the judgment of his peers, or by the law of the land."); N.C. Const., Declaration of Rights, art. XII (1776) ("That no freeman ought to be taken, imprisoned, or disseized of his freehold liberties or privileges, or outlawed, or exiled, or in any manner destroyed, or deprived of his life, liberty, or property, but by the law of the land."); N.H. Const., art. I, Sec. XV. (1784) ("no subject shall be arrested, imprisoned, despoiled, or deprived of his property, immunities, or privileges, put out of the protection of the law, exiled or deprived of his life, liberty, or estate, but by the judgment of his peers, or the law of the land."); N.Y. Const., art. XIII (1777) ("no member of this State shall be disfranchised, or deprived of any the rights or privileges secured to the subjects of this State by this constitution, unless by the law of the land, or the judgment of his peers."); Penn. Const., Declaration of Rights, art. IX (1776) ("nor can any man be justly deprived of his liberty except by the laws of the land, or the judgment of his peers"); S.C. Const., art. XLI (1778) ("no freeman of this State be taken or imprisoned, or disseized of his freehold, liberties, or privileges, or outlawed, exiled or in any manner destroyed or deprived of his life, liberty, or property, but by the judgment of his peers or by the law of the land."); Va. Bill of Rights, Sec. 8 (1776) ("that no man be deprived of his liberty, except by the law of the land or the judgment of his peers."); see also Thomas Y. Davies, The Fictional Character of Law-and-order Originalism: A Case Study of the Distortions and Evasions of Framing-era Arrest Doctrine in Atwater v. Lago Vista, 37 WAKE FOREST L.REV. 239, 392 n. 518 (2002) (noting that Connecticut law in 1776 provided "That no Man's Life shall be taken away: No Man's Honor or good Name shall be stained: No Man's Person shall be arrested, restrained, banished, dismembered, nor any ways punished . . . unless clearly warranted by the Laws of this State" and the Continental Congress in the Northwest Ordinance of 1787, art. II., provided that "No man shall be deprived of his liberty or property, but by the judgment of his peers, or the law of the land.").

This Court's research reveals little of a historical nature that could be perceived as an intent to leave aliens not characterized as alien enemies outside the protections of the Fourth Amendment. There is evidence that the Framers were concerned of foreign influence over the government if the citizenship bar was set too low,¹⁹ but it is also evident that the Framers did not want to make a citizenship requirement so onerous that it would discourage desirable aliens from immigrating to the United States and debate generally manifest concerns as to perceptions of inhospitality. It is further noteworthy that the earliest naturalization requirements were decidedly liberal. Ozawa v. United States, 260 U.S. 178, 192 (1922) (quoting the Naturalization Act, ch. 3. 1 Stat. 103 (1790))("[a]ny alien, being a free white person . . . may be admitted to become a citizen"); see also Peter H. Schuck, The Transformation of Immigration Law, 84 COLUM. L.REV. 1, 8 (1984) ("As early as the colonial period, citizenship was automatically conferred by birth within the colony; for those born elsewhere, that status could still be readily obtained. Anxious to attract labor and enhance property values, the colonies actively and imaginatively promoted immigration by Europeans."). There only evidence that might point to restrictions on alien rights is directed at alien enemies, The Alien Enemy Act of 1798,1 Stat. 577, as amended, 50 U.S.C. § 21 ("[w]henever there is a declared war between the United States and any foreign nation or government . . . and the President makes public proclamation of the event, all natives, citizens, denizens, or subjects of the hostile nation or government, being of the age of fourteen years and upward, who shall be within the United States and not actually naturalized, shall be liable to be apprehended, restrained, secured, and removed as alien enemies"). See Eisentrager, 339 U.S. at 775 ("[t]he resident enemy alien is constitutionally subject to summary arrest, internment and deportation whenever a 'declared war' exists"). As drafts of the Kentucky Resolution make clear, the Act was not without opposition.²⁰ There were additionally State laws directed against aliens characterized as criminals, vagabonds and paupers. Gerald L. Neuman, The Lost Century of American Immigration Law (1776-1875), 93 COLUM. L.REV. 1833, 1846-47 (1993). None of these laws result in the conclusion that a lawful alien would be denied protections under the Fourth Amendment.

19 69th Cong. 1st Sess. (1927), H.Doc. No. 398, at p. 500, (Debates in the Federal Convention of 1787 as reported by James Madison, Aug. 9) (citing Morris as stating he "moved to insert 14 instead of 4 years citizenship as a qualification for Senators: urging the danger of admitting strangers into our public Councils"); Id. (James Madison found a longer residence requirement improper "because it will give a tincture of illiberality to the Constitution: because it will put it out of the power of the Natl Legislature even by special acts of naturalization to confer the full rank of Citizens on meritorious strangers because it will discourage the most desireable [sic] class of people from emigrating to the U.S. Should the proposed Constitution have the intended effect of giving stability reputation to our Govts. great numbers of respectable Europeans: men who love liberty and wish to partake its blessings, will be ready to transfer their fortunes hither. All such would feel the mortification of being marked with suspicious incapacitations though they sd. not covet the public honors"); id. (Benjamin Franklin stated he "should be very sorry to see any thing like illiberality inserted in the Constitution. The people in Europe are friendly to this Country. Even in the Country with which we have been lately at war, we have now had during the war, a great many friends not only among the people at large but in both houses of Parliament. In every other Country in Europe all the people are our friends. We found in the course of the Revolution that many strangers served us faithfully- and that many natives took part agst. their Country. When foreigners after looking about for some other Country in which they can obtain more happiness, give a preference to ours it is a proof of attachment which ought to excite our confidence affection."); id. (Edmund Randolph stating he "did not know but it might be problematical whether emigrations to this Country were on the whole useful or not: but be could never agree to the motion for disabling them for 14 years to participate in the public honours. He reminded the Convention of the language held by our patriots during the Revolution, and the principles laid down in all our American Constitutions. Many foreigners may have fixed their fortunes among us under the faith of these invitations. All persons under this description, with all others who would be affected by such a regulation, would enlist themselves under the banners of hostility to the proposed System. He would go as far as seven years, but no farther."); id. (James Wilson stated "he rose with feelings which were perhaps peculiar; mentioning the circumstance of his not being a native, and the possibility, if the ideas of some gentlemen should be pursued, of his being incapacitated from holding a place under the very Constitution, which he had shared in the trust of making. He remarked the illiberal complexion which the motion would give to the System, the effect which a good system would have in inviting meritorious foreigners among us, and the discouragement mortification they must feel from the degrading discrimination, now proposed. He had himself experienced this mortification. On his removal into Maryland, he found himself, from defect of residence, under certain legal incapacities which never ceased to produce chagrin, though he assuredly did not desire would not have accepted the offices to which they related. To be appointed to a place may be matter of indifference. To be incapable of being appointed, is a circumstance grating and mortifying."); id. (Gouverneur Morris stating "It is said that some tribes of Indians, carried their hospitality so far as to offer to strangers their wives daughters. Was this a proper model for us? He would admit them to his house, he would invite them to his table, would provide for them comfortable lodgings; but would not carry the complaisance so far as, to bed them with his wife. He would let them worship at the same altar, but did not choose to make Priests of them. He ran over the privileges which emigrants would enjoy among us, though they should be deprived of that of being eligible to the great offices of Government; observing that they exceeded the privileges allowed to foreigners in any part of the world; and that as every Society from a great nation down to a club had the right of declaring the conditions on which new members should be admitted, there could be no room for complaint. As to those philosophical gentlemen, those Citizens of the World as they call themselves, He owned he did not wish to see any of them in our public Councils. He would not trust them. The men who can shake off their attachments to their own Country can never love any other. These attachments are the wholesome prejudices which uphold all Governments, Admit a Frenchman into your Senate, and he will study to increase the commerce of France: an Englishman, he will feel an equal biass in favor of that of England. It has been said that The Legislatures will not chuse foreigners, at least improper ones. There was no knowing what Legislatures would do. Some appointments made by them, proved that every thing ought to be apprehended from the cabals practised on such occasions. He mentioned the case of a foreigner who left this State in disgrace, and worked himself into an appointment from another to Congress.").

20 The various positions on aliens closely following the adoption of the Bill of Rights has been described as follows:

Early in the existence of the young republic, the constitutional status of aliens triggered animated discussion. Debates surrounding the Alien Act of 1798, which authorized the President to summarily expel "dangerous" noncitizens, had raised the question of the constitutional protection of aliens. While Jeffersonians advocated an inclusive view of the Constitution, the Federalists subscribed to a membership-social contract model of the Constitution. Some Federalists argued that aliens, as nonparties to the Constitution, were excluded from its protection. Madison, while subscribing to the membership model, carefully refrained from concluding that aliens were automatically excluded from the Constitution. He suggested that the line to be drawn was not between aliens and citizens, rather the line should properly be drawn between alien-friends and alien-enemies. Any other result, Madison maintained, triggered an absurdity: "If aliens had no rights under the Constitution, they might not only be banished, but even capitally punished, without a jury or the other incidents to a fair trial."

Annie M. Chan, Community and the Constitution: A Reassessment of the Roots of Immigration Law, 21 Vt. L.Rev. 491, 520-21 (1996).

In light of the state of English law at the time the Framers drafted the Fourth Amendment, this Court would read the foregoing history as precluding the application of a restrictive definition of "the people" that would deny all rights in which that phrase is found and instead require a review of the nature of the particular right claimed and whether such right was intended for the particular individual. The motivation for the First Amendment is not necessarily the same as the Fourth Amendment, though the text of both amendments includes a reference to "the people," while the Fourth and Fifth Amendments have been characterized as closely connected. notwithstanding the fact that the former uses the phrase "the people" while the latter employs the term "person". United States ex rel. Turner v. Williams, 194 U.S. 279, 292 (1904) (holding excludable alien is not entitled to First Amendment rights, because "[h]e does not become one of the people to whom these things are secured by our Constitution by an attempt to enter forbidden by law"); Yick Wo v. Hopkins, 118 U.S. 356, 369 (1886) ("[t]he fourteenth amendment['s] . . . provisions are universal in their application, to all persons within the territorial jurisdiction, without regard to any differences of race, of color, or of nationality; and the equal protection of the laws is a pledge of the protection of equal laws" (emphasis added)); Mathews v. Diaz, 426 U.S. 67, 77-78 (1976) ("The Fifth Amendment, as well as the Fourteenth Amendment, protects every one of these persons from deprivation of life, liberty, or property without due process of law. . . . Even one whose presence in this country is unlawful, involuntary, or transitory is entitled to that constitutional protection." (Emphasis added)); Wong Wing v. United States, 163 U.S. 228, 238 (1896) ("it must be concluded that all persons within the territory of the United States are entitled to the protection guarantied by [the fifth and sixth] amendments" (emphasis added)), holding limited by Verdugo, 494 U.S. at 271 ("aliens receive constitutional protections when they have come within the territory of the United States and developed substantial connections with this country" (emphasis added)); see also Johnson v. Eisentrager, 339 U.S. 763, 778, 783 (1950) (holding that aliens outside sovereign territory of the United States may not avail themselves of Fifth Amendment protection). In the case of those effectively granted safe passage into and out of the United States, it is difficult to accept the proposition that the Framers intended, absent any contrary indication in historical documents or law, that the Fourth Amendment protections would not apply to lawful alien visitors in this country.²¹ Kwong Hai Chew v. Colding, 344 U.S. 590, 598 n. 5 (1953) ("once an alien lawfully enters and resides in this country he becomes invested with the rights guaranteed by the Constitution to all people within our borders."). Indeed, such a conclusion is controverted by history.

21 The Draft of the Kentucky Resolutions, opposing the Alien Enemy Act, further stands as evidence of this conclusion. "Resolved, That alien friends are under the jurisdiction and protection of the laws of the State wherein they are: that no power over them has been delegated to the United States, nor prohibited to the individual States, distinct from their power over citizens," Draft of Kentucky Resolutions ¶ 4 (October 1798) (available at http://www.yale.edu/lawweb/avalon/jeffken.htm). The Fundamental Constitutions of Carolina, art. 118 (March 1, 1669) (available at http://www.yale.edu/lawweb/avalon/states/nc05.htm) ("Whatsoever alien shall, in this form, before any precinct register, subscribe these fundamental constitutions, shall be thereby naturalized")

The history deemed relevant by the Supreme Court in Verdugo-Urquidez focused on the purpose of the Fourth Amendment in restricting searches in domestic matters and the question as to whether the Fourth Amendment was ever intended to apply to "aliens in foreign territory or in international waters." The emphasis of the decision therefore can be read as less of an intent to set forth a universally applicable definition of who may properly be characterized as "the people"²² and more an attempt to strike a balance between the sovereign power of the United States to address matters international in character, Principality of Monaco v. State of Mississippi, 292 U.S. 313, 331 (1934) ("[t]he National Government, by virtue of its control of our foreign relations is entitled to employ the resources of diplomatic negotiations and to effect such an international settlement as may be found to be appropriate, through treaty, agreement, of arbitration, or otherwise"); see also Nishimura Ekiu v. United States, 142 U.S. 651, 659 (1892) ("In the United States this power is vested in the national government, to which the constitution has committed the entire control of international relations, in peace as well as in war."),²³ while at the same time not completely discounting the extra-territorial application of the Fourth Amendment, see Reid v. Covert, 354 U.S. 1, 5 (1957) ("we reject the idea that when the United States acts against citizens abroad it can do so free of the Bill of Rights"); United States v. Conroy, 589 F.2d 1258, 1264 (5th Cir. 1979) ("The Fourth Amendment not only protects all within our bounds; it also shelters our citizens wherever they may be in the world from unreasonable searches by our own government."). Read in that limited context, the definition of "the people" set forth in Verdugo-Urquidez does not appear to be excessively limiting in scope.²⁴

22 Justice Brennan's dissent provides a useful summary of the debates on the language employed in the Fourth Amendment. "The [ Fourth] Amendment was introduced on the floor of Congress, considered by Committee, debated by the House of Representatives and the Senate, and submitted to the 13 States for approval. Throughout that entire process, no speaker or commentator, pro or con, referred to the term 'the people' as a limitation." Verdugo-Urquidez, 494 U.S. at 289.

23 In Verdugo-Urquidez, for example, conduct of search and seizures requested to be conducted in Mexico by the United States is governed by the Mutual Legal Assistance Cooperation Treaty, Dec. 9, 1987, U.S.-Mex., art. 1, entered into force May 3, 1991, 27 I.L.M. 447 (1988). Such Treaty provides that searches and seizures will be conducted by the host state in accordance with the host state's legal provisions. Id.

24 The Second Circuit Court of Appeals considered the Verdugo decision a "helpful analytical framework for determining whether other constitutional provisions apply to governmental activities having extraterritorial dimensions," distilling the decision into a three-part test to determine the application of rights to extraterritorial government activities: "(1) the operation and text of the constitutional provision; (2) history; and (3) the likely consequences if the provision is construed to restrict the government's extraterritorial activities." This standard is consistent with other courts that have found Verdugo applicable to cases involving the extraterritorial application of constitutional provisions. Council of Resistance of Iran v. Department of State, 251 F.3d 192, 202 (D.C. Cir. 2001) ("Neither the word 'only' nor anything else in the holding purports to establish whether aliens who have entered the territory of the United States and developed connections with this country but not substantial ones are entitled to constitutional protections."); Theck v. Warden, I.N.S., 22 F. Supp. 2d 1117, 1123 (C.D. Cal. 1998) ("[t]he holding in Verdugo is limited to extraterritorial searches and seizures"); United States v. Davis, 905 F.2d 245, 251 (9th Cir. 1990) (" Verdugo-Urquidez only held that the fourth amendment does not apply to searches and seizures of nonresident aliens in foreign countries").

Ultimately, it is difficult to interpret the Fourth Amendment in a manner that would deny its protection to those aliens who lawfully seek to enter this country. History indicates that the Framers were very circumspect about conferring significant authority on the federal government to conduct searches and seizures. It would be difficult to accept the proposition that this concern along with prior admonitions from the Supreme Court not to tread lightly in narrowly interpreting Fourth Amendment protections would foreclose such protections to lawfully admitted aliens. It further would be difficult to embrace such a limitation in light of the protections historically conferred on alien friends. If aliens had no protection against searches and seizures, it would be difficult to envision any equivalent of safe conduct for those who comply with federal law in seeking entrance to the United States.²⁵

25 While the argument is not advanced by the parties, given the length of the discussion on the application of the Fourth Amendment to aliens it might be said under the qualified immunity analysis that the right was not clearly established at the time of the incident. "'[C]learly established' for purposes of qualified immunity means that [t]he contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right. This is not to say that an official action is protected by qualified immunity unless the very action in question has previously been held unlawful, but it is to say that in the light of pre-existing law the unlawfulness must be apparent." Wilson v. Layne, 526 U.S. 603, 614-15 (1999) (internal quotation marks omitted). Given the wealth of law prior to Verdugo-Urquidez indicating that aliens in the territorial United States could avail themselves of Fourth amendment protections, and the law generally prohibiting wrongful arrest and the use of excessive force in arrests, such an argument would be untenable. United States v. Verdugo-Urquidez, 856 F.2d 1214, 1234 (9th Cir. 1988) (Wallace, J., dissenting) ("aliens in this country are sheltered by the fourth amendment"), rev'd, 494 U.S. 259 (1990); United States v. Duggan, 743 F.2d 59, 75 (2d Cir. 1984) ("[B]oth the Fourth Amendment and the Equal Protection Clause afford protection to all aliens"); Jean v. Nelson, 727 F.2d 957, 972 (11th Cir. 1984) (en banc) ("Aliens seized by United States officials for suspected involvement in criminal activity are entitled to the same constitutional rights that normally apply in such proceedings."), aff'd, 469 U.S. 1071 (1985); Babula v. INS, 665 F.2d 293, 299 n. 2 (3d Cir. 1981) (Adams, J., concurring) ("some degree of protection under the Fourth Amendment is afforded to aliens illegally present within the country"); United States v. Williams, 617 F.2d 1063, 1078 n. 17 (5th Cir. 1980) (en banc) ("once we subject . . . aliens to criminal prosecution, they are entitled to the equal protection of all our laws, including the Fourth Amendment"); United States v. Conroy, 589 F.2d 1258, 1264 (5th Cir. 1979) ("[t]he Fourth Amendment . . . protects all within our bounds"); United States v. Cortes, 588 F.2d 106, 110 (5th Cir. 1979) ("[o]nce aliens become subject to liability under United States law, they also have the right to benefit from [ Fourth Amendment] protection"); United States v. Cadena, 585 F.2d 1252, 1262 (5th Cir. 1978) ("once we subject . . . aliens to criminal prosecution, they are entitled to the equal protection of all our laws, including the Fourth Amendment"), overruled on other grounds by United States v. Michelena-Orovio, 719 F.2d 738 (5th Cir. 1983); United States v. Cruz, 581 F.2d 535, 537 (5th Cir. 1978) ("[t]his [law enforcement] task must, however, be performed with due regard to the Fourth Amendment to the Constitution, which affords citizen and alien alike protection against illegal stops, searches, and arrests"), overruled on other grounds by United States v. Causey, 834 F.2d 1179 (5th Cir. 1987); United States v. Barbera, 514 F.2d 294, 296 n. 3 (2d Cir. 1975) ("[a]n alien within the United States has standing to assert a violation of constitutional rights even if his [or her] presence is illegal"); United States v. Toscanino, 500 F.2d 267, 280 (2d Cir. 1974) ("[i]t is beyond dispute that an alien may invoke the Fourth Amendment's protection against an unreasonable search conducted in the United States"); United States v. Christancho-Puerto, 475 F.2d 1025, 1029 (5th Cir. 1973) ("Despite the fact that they may be illegal entrants into the United States, aliens as well as citizens enjoy Fourth Amendment protection."); Cheung Tin Wong v. INS, 468 F.2d 1123, 1126 (D.C. Cir. 1972) ("aliens in this country are sheltered by the Fourth Amendment in common with citizens"); United States ex rel De Luca v. O'Rourke, 213 F.2d 759, 763 (8th Cir. 1954) ("[a]liens, so long as they are permitted to remain in the United States, are entitled to the protection of its Constitution and laws with respect to their rights of person and of property and to their civil and criminal responsibility"); United States ex rel. Mezei v. Shaughnessy, 195 F.2d 964, 968 (2d Cir. 1952) ("even a pending deportation does not make unavailable to aliens the privilege . . . against unreasonable searches and seizures."), rev'd, 345 U.S. 206 (1953); Noro v. United States, 148 F.2d 696, 698 (5th Cir. 1945) ("in a civil court trying an alien enemy for a crime committed in peace time, the [ Fourth Amendment] constitutional safeguards of the accused ought to be maintained"); United States v. Iribe, 806 F. Supp. 917, 919 (D. Colo. 1992) ("[t]his court rejects the notion that Denver police officers are not restrained from conducting unreasonable searches and seizures of the person and property of an alien in Colorado."), rev'd in part on other grounds, aff'd in part, 11 F.3d 1553 (10th Cir. 1993); Flores v. Meese, 681 F. Supp. 665, 667 n. 3 (C.D. Cal. 1988) ("[t]he Fourth Amendment's protections extend to undocumented aliens"), aff'd, 942 F.2d 1352 (9th Cir. 1991), rev'd sub nom. Reno v. Flores, 507 U.S. 292 (1993); United States v. Megahey, 553 F. Supp. 1180, 1199 (E.D.N.Y. 1982) ("defendants are certainly correct in their assertion that the fourth and fifth amendments protect aliens in the United States"), aff'd, 729 F.2d 1444 (2d Cir. 1983); United States v. Montez-Hernandez, 291 F. Supp. 712, 713 n. 1 (E.D. Cal. 1968) ("[b]oth sides admit that defendant, although an alien, enjoys the protection of the Fourth Amendment, whether in this country illegally or not."); Lassoff v. Gray, 207 F. Supp. 843, 847 (W.D. Ky. 1962) ("[i]t is well settled that aliens while in the United States are entitled to the protection of the Constitution and evidence obtained by the government in violation of a person's right secured by the Fourth Amendment is not admissible against him in criminal proceedings"); Valerio v. Mulle, 148 F. Supp. 546, 548 (E.D. Pa. 1956) ("aliens in the United States are entitled to the protection of its constitution and laws with respect to their rights of person and property and they are entitled to this protection under certain circumstances, in both criminal and civil proceedings against them"); Ex parte Jackson, 263 F. 110, 113 (D. Mont. 1920) (applying the Fourth Amendment to a deportable alien stating "[t]he Declaration of Independence, the writings of the fathers, the Revolution, the Constitution, and the Union, all were inspired to overthrow and prevent like governmental despotism. They are yet living, vital, and potential forces to those ends, to safeguard all domiciled in the country, alien as well as citizen"); United States v. Wong Quong Wong, 94 F. 832, 833 (D. Vt. 1899) ("papers, procured [illegally], cannot be used in evidence against persons from whom they are procured without violating the protection afforded by the amendments to all persons in this country."); see also Michael Scaperlanda, Polishing the Tarnished Golden Door, 1993 WIS. L.REV. 965, 998 (1993) ("The courts [before Verdugo-Urquidez] had uniformly applied the Fourth Amendment to searches of aliens within the United States").

The "predominant political impulse [of the Framers] was distrust of power, and they insisted on constitutional limitations against its abuse." Weems v. United States, 217 U.S. 349, 372 (1910). This Court is reminded of one of the earliest Supreme Court decisions interpreted the Fourth Amendment which cautioned

Though the proceeding in question is divested of many of the aggravating incidents of actual search and seizure, yet, as before said, it contains their substance and essence, and effects their substantial purpose. It may be that it is the obnoxious thing in its mildest and least repulsive form; but illegitimate and unconstitutional practices get their first footing in that way, namely, by silent approaches and slight deviations from legal modes of procedure. This can only be obviated by adhering to the rule that constitutional provisions for the security of person and property should be liberally construed. A close and literal construction deprives them of half their efficacy, and leads to gradual depreciation of the right, as if it consisted more in sound than in substance. It is the duty of courts to be watchful for the constitutional rights of the citizen, and against any stealthy encroachments thereon.

Boyd, 116 U.S. at 635 (emphasis added.). It is with this admonition, supported by inconclusive text and a history that does not disfavor aliens that this Court declines to reach the conclusion that the definition set forth in Verdugo-Urquidez would deny protections of the Fourth Amendment in domestic matters.²⁶ 3. "Substantial Connection"

26 It is worth noting that the Supreme Court recently discussed whether international law defined by Universal Declaration of Human Rights (Declaration), G.A. Res. 217A (III), U.N. Doc. A/810 (1948), and article nine of the International Covenant on Civil and Political Rights (Covenant), Dec. 19, 1996, 999 U.N.T.S. 171, would provide an independent cause of action for a Mexican national abducted by the DEA in Mexico and brought to the United States. Sosa v. Alvarez-Machain, 124 S. Ct. 2739, 2767 (2004). In concluding that such a cause of action would not lie under the Federal Tort Claims Act, 28 U.S.C. § 1346(b)(1), §§ 2671-2680, and the Alien Tort Statute (ATS), 28 U.S.C. § 1350, the Court noted that "[h]is rule would support a cause of action in federal court for any arrest, anywhere in the world, unauthorized by the law of the jurisdiction in which it took place, and would create a cause of action for any seizure of an alien in violation of the Fourth Amendment, supplanting the actions under Rev. Stat. § 1979, 42 U.S.C. § 1983 and Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388 . . . (1971), that now provide damages remedies for such violations." Sosa, 124 S. Ct. at 2768. This statement addressing facts very similar to Verdugo-Urqiduez may itself be read as implying the viability of the very claim pursued in the present case.

While this Court concludes that the test determining whether an alien may be considered one of "the people" for Fourth Amendment purposes is inapposite to one lawfully admitted, the application of the "substantial connection" consideration to the present case would not require a contrary conclusion.

Applying the "substantial connection" standard to the facts of the present case. Plaintiff states that she made "regular trips each month into the United States [to pick up her elderly aunt's social security check at the El Paso Social Security Office] and [for] other purposes." Resp. to Mot. Summ. J. at 2. She further alleges that she had a "border crossing card" that was expired, although she further alleges that she told defendant that "her new crossing card would be coming in the mail." Id.

Under the law as existing at the time, "[a] valid unexpired visa and an unexpired passport . . . [were required to be] presented by each arriving nonimmigrant alien." 8 C.F.R. § 212.1 (2001). "A visa and a passport [were] not required of a Mexican national who [was] in possession of a border crossing card on Form I-186 or I-586 and [was] applying for admission as a temporary visitor for business or pleasure from contiguous territory. . . ." Id. § 212.1(c). As to the validity of an expired card,

A [border crossing card (BCC)] previously issued by a consular officer in Mexico on Form I-186, Nonresident Alien Mexican Border Crossing Card, or Form I-586, Nonresident Alien Border Crossing Card, [was] valid until the expiration date on the card . . ., but not later than the date, currently October 1, 2001, on which a machine-readable, biometric identifier in the card is required in order for the card to be usable for entry. The BCC portion of a B-1/B-2 Visa/BCC issued to a Mexican national pursuant to provisions of this section contained in the 22 CFR, parts 1 to 299, edition revised as of April 1, 1998 is valid until the date of expiration, unless previously revoked, but not later than the date, currently October 1, 2001, on which a machine-readable, biometric identifier in the card is required in order for the card to be usable for entry.

22 C.F.R. § 41.32(b) (2001) (emphasis added).

As the above regulations demonstrate, an alien was not permitted entry without a valid border crossing card, which effectively equates to a license to visit the United States. The license provided to aliens in possession of a valid border crossing cards was limited in scope and duration, at the time providing for travel up to 25 miles inside the United States for no longer than 72 hours per visit. United States v. Montero-Camargo, 208 F.3d 1122, 1127 (9th Cir. 2000).

In the present case on the date in question, there may be some question as to whether plaintiff was entitled to enter the United States, given her concession that the crossing card she carried was not current and her replacement card was effectively "in the mail". Plaintiff, however, states that she was told that her existing paperwork could be stamped and that such stamp would serve as an appropriate alternative until her card arrived in the mail. Generally, in criminal proceedings where it has long been established that ignorance of the law is no excuse to a violation of law, United States v. International Minerals and Chemical Corp., 402 U.S. 558, 563 (1971), an exception is carved for those who legitimately rely on an official statement of the law. See Cox v. Louisiana, 379 U.S. 559, 571 (1965); United States v. Barker, 546 F.2d 940, 947 (D.C. Cir. 1976) ("although the basic policy behind the mistake of law doctrine is that, at their peril, all men should know and obey the law, in certain situations there is an overriding societal interest in having individuals rely on the authoritative pronouncements of officials whose decisions we wish to see respected"). While the immigration law quoted above is not a criminal matter, the policy behind the criminal defense is that one should not be held accountable for erroneous reliance on an official statement of the law. A statement by a consular official providing what would be characterized as a gapfiller procedure for entering the United States would likely fit the definition of legitimate reliance given the general complexity of immigration law for one who practices law in the United States, and certainly for a Mexican national that may not necessarily grasp the intricacies of the English language.

At a minimum, plaintiff's efforts would be characterized as a good faith effort to comply with the laws of the United States incident to obtaining entry. This Court would be disinclined to rest the application of the Fourth Amendment on the procedural nicety of technical compliance with the law when an official charged with issuing immigration documents required for entry states that an alien is fully compliant. There appears no dispute that plaintiff did apply for and was granted leave to enter the United States, on this particular occasion and several occasions previously. She entered sovereign United States territory voluntarily, and from the facts believing she had satisfied the requirements for entry but for an outdated card for which a replacement was being sent to her. As such, this Court would conclude that plaintiff established a substantial connection with the United States through her pattern of visitation and her efforts to comply with federal law governing admission. United States v. Tehrani, 826 F. Supp. 789, 793 n. 1 (D. Vt. 1993) ("[i]n the case at bar . . . the defendants' presence in the United States was voluntary, and they had gained admission, albeit surreptitiously, for a temporary visit as tourists. Such connections are thus distinguishable from those in Verdugo-Urquidez and constitute the type of connections which would vest in aliens the protections afforded by the Fourth Amendment"); United States v. Iribe, 806 F. Supp. 917, 919 (D.Colo. 1992), rev'd in part on other grounds, 11 F.3d 1553 (10th Cir. 1993) ("Here, the question is whether only citizens of the United States have protection under the Fourth Amendment against unreasonable searches and seizures by local police officers. A negative answer is required"); but see Esparza-Mendoza, 265 F. Supp. 2d at 1273 (declining to conclude that previously excluded alien had developed substantial connections); American Immigration Lawyers Ass'n v. Reno, 18 F. Supp. 2d 38, 60 n. 17 (D.D.C. 1998) (concluding that regular visits to United States would not constitute substantial connection). Plaintiff is therefore entitled to Fourth Amendment protections.

4. Wrongful Arrest

Plaintiff alleges that she was subjected to a wrongful arrest by defendant. Defendant states that she was arrested for violation of 18 U.S.C. § 111 and 41 C.F.R. § 102-74.390.

Section 111(a), entitled "Assaulting, resisting, or impeding certain officers or employees," provides that "[w]hoever . . . forcibly assaults, resists, opposes, impedes, intimidates, or interferes with any person . . . engaged in or on account of the performance of official duties . . . shall . . . be fined under this title or imprisoned not more than one year, or both. . . ." Section 102-74.390, entitled "What is the policy concerning disturbances?," provides that

All persons entering in or on Federal property are prohibited from loitering, exhibiting disorderly conduct or exhibiting other conduct on property which: (a) Creates loud or unusual noise or a nuisance; (b) Unreasonably obstructs the usual use of entrances, foyers, lobbies, corridors, offices, elevators, stairways, or parking lots; (c) Otherwise impedes or disrupts the performance of official duties by Government employees; or (d) Prevents the general public from obtaining the administrative services provided on the property in a timely manner.

Section 102-74.390 first appears in the 2003 version of the Code of Federal Regulations. As the events giving rise to the arrest took place in 2001, some two years prior to the appearance of the regulation, it is irrelevant to the present case.²⁷ The discussion is therefore limited to section 111.

27 The regulation is adopted pursuant to 40 U.S.C. § 1315(c), which confers authority on the Secretary of Homeland Security to prescribe regulations with penalties limited to fine and/or thirty days imprisonment corresponding to a class C misdemeanor, 18 U.S.C. § 3559(a)(8).

A court determines whether an arrest is constitutional by balancing "the nature and quality of the intrusion on the individual's Fourth Amendment interests against the importance of the governmental interests alleged to justify the intrusion." Atwater v. City of Lago Vista, 195 F.3d 242, 244 (5th Cir. 1999) (en banc) (internal quotation marks omitted). "[W]hen probable cause exists to believe that a suspect is committing an offense, the government's interests in enforcing its laws outweigh the suspect's privacy interests, and an arrest of the suspect is reasonable." Id.; see also United States v. Robinson, 414 U.S. 218, 235 (1973) ("[a] custodial arrest of a suspect based on probable cause is a reasonable intrusion"). Probable cause is defined as "a reasonable ground for belief . . . supported by less than prima facie proof but more than mere suspicion." United States v. One Afghan Urial Ovis Orientalis Blanfordi Fully Mounted Sheep, 964 F.2d 474, 476 (5th Cir. 1992) (internal quotation marks omitted). The inquiry in assessing wrongful arrest is one of objective reasonableness. Objective reasonableness requires assessment of the actions at issue measured against what a reasonable officer would do under the circumstances. Graham v. Connor, 490 U.S. 386, 397 (1989).

Any attempt to resolve the question of reasonableness is thwarted by the differing accounts of the respective parties. Section 111 requires that plaintiff (1) assault, resist, oppose, impede, intimidate or interfere (2) with defendant (3) in the official performance of his duties. As to the third element,

a federal officer engaged in performing [the] function in which employed . . . in good faith and colorable performance of [his] duty . . . even if effecting an arrest without probable cause, is still engaged in the performance of his official duties, provided he is not on a frolic of his own, and is protected from interference or assault.

United States v. Lopez, 710 F.2d 1071, 1074 (5th Cir. 1983) (internal citations and quotation marks omitted). If defendant's account were taken as true, plaintiff was angry about denial of entry for not having the required laser visa and began screaming at him. Mot. Summ. J. at 3. Plaintiff demanded to see defendant's supervisor and he attempted to take her to his supervisor, during which encounter plaintiff spouted profanities. Id. Defendant warned her against using loud and profane language. Id. Plaintiff elected not to see the supervisor but continued to use profanity on her return to the pedestrian area. Id. at 3-4. She ultimately turned to the officers in the inspection area and shouted "[t]odos ustedes a la chingada!," meaning "[a]ll of you can go to hell" or "[a]ll of you can fuck yourselves." Id. at 4. At that point, defendant arrested plaintiff. Id.

On the facts as described by defendant, this Court would be inclined to conclude that there was probable cause for arrest. Such allegations have in the past formed the basis for criminal prosecution. United States v. Vidaure, 861 F.2d 1337, 1342 (5th Cir. 1988) (upholding charge of assaulting and interfering with Border Patrol Agent). The difficulty lies in plaintiff's recitation of the facts which differs markedly from defendant's account.

Plaintiff states that defendant became upset with her when presented with the expired entry documents and would not hear her explanation of what she was instructed to do by the consular officer. Resp. Mot. Summ. J. at 2. She politely asked to speak to defendant's supervisor, and he responded by yelling "Yo soy la autoridad," or "I am in charge." Id. Defendant then took umbrage to plaintiff's inquiry as to why he "a Mexican," like herself, would not instruct her as to the necessary steps for entry. Id. He became outraged, pointing to the patches at his uniform and shouting "Look at me! I am not a Mexican! Look at my uniform!" and cursing at her "Vete a la chingada!," or "[g]o fuck yourself." Id. Defendant did not return the crossing cards on request, instead instructing plaintiff and her aunt "to leave." Id. at 2-3. Defendant walked away while the two remained in place, and he turned, threw the cards at them and cursed "vete a la chingada" again. Id. at 3. Plaintiff picked the cards off the ground and stated to her aunt with her voice at a level she believed only her aunt could hear "Tia, pues vamos a ver a donde esta la chingada," or "Well, aunt, let's go see where 'la chingada' is." As defendant slowly walked back to Mexico, defendant shouted at them "stop in the name of the law," at which point plaintiff stopped walking. Id. Defendant, physically larger and stronger than plaintiff, grabbed her arm, twisted it behind her back, pushed her into a concrete barrier and placed his knee in her lower back despite the fact that she did nothing to resist. Id.

The divergent accounts of the parties provided in their respective affidavits precludes summary judgment on the question of wrongful arrest. Accepting plaintiff's facts as true, she was wholly compliant with demands of defendant and did nothing that could be construed as interfering with defendant's official duties as necessary for a violation of section 111. Any argument to the contrary would be patently absurd. The resolution of the two accounts depends on credibility estimates and, as such, the ultimate determination shall be left to the jury. Summary judgment is therefore denied on the wrongful arrest claim.

5. Excessive Force

Defendant also moves for summary judgment on plaintiff's claim that defendant used excessive force in arresting her.

As with wrongful arrest claims, excessive force claims under the Fourth Amendment are governed by a standard of objective reasonableness. Graham v. Connor, 490 U.S. 386, 396 (1989).²⁸ The determination of whether the force used to effect an arrest is "reasonable" requires "a careful balancing of the nature and quality of the intrusion on the individual's Fourth Amendment interests against the countervailing governmental interests at stake." Id. at 396 (internal quotation marks omitted). While the reasonableness assessment is not capable of precise definition, it "requires careful attention to the facts and circumstances of each particular case, including the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight." Id.

28 The Supreme Court in Graham defines the excessive force standard under the Fourth Amendment with reference to the "free citizen". See, e.g., Graham, 490 U.S. at 395 ("[w]here, as here, the excessive force claim arises in the context of an arrest or investigatory stop of a free citizen, it is most properly characterized as one invoking the protections of the Fourth Amendment"). As the question of an alien's right to be free from excessive force in arrests was not before the Court in Graham, and as this Court has concluded that the Fourth Amendment applies with equal force to lawfully admitted aliens, the standard set forth in Graham governs resolution of the present claim of excessive force.

As was the case with the wrongful arrest claim, the fact-specific inquiry in the excessive force inquiry imposes an insurmountable obstacle to defendant's pursuit of summary judgment. In defendant's account of the events culminating in plaintiff's arrest, defendant ordered plaintiff to stop but plaintiff refused to obey the order. Mot. Summ. J. at 4. He then grabbed plaintiff's wrist and plaintiff responded by violently swinging her right hand at defendant's face. Id. Defendant raised his forearms to protect himself and was scratched by plaintiff, and placed plaintiff in an arm/wrist lock to protect himself. Id. Another officer then assisted defendant in removing plaintiff to a private area. Id. at 4-5. In contrast to defendant's account, and described above in the context of the wrongful arrest discussion, plaintiff states that she was completely compliant with defendant's orders, did not resist arrest but was nonetheless subjected to a forceful takedown.

Under defendant's account, plaintiff was actively resisting arrest and scratched him in the course of resisting arrest. While the crime for which she was arrested would not be characterized as severe, carrying with it a maximum sentence of one year imprisonment and/or a fine, 18 U.S.C. § 111(a), plaintiff did not respond to defendant's order to stop and actively resisted his attempt to place her under arrest. Under the facts as given by defendant, the arrest would likely be characterized as reasonable. The same may not be said of plaintiff's account. Plaintiff did not pose an apparent threat, stopped when ordered to do so and did not resist defendant's attempt to restrain her, but was nonetheless subjected to a forceful takedown by a larger and stronger officer. Such may not be characterized as reasonable force in effecting an arrest. Summary judgment on the claim of excessive force is therefore denied. E. Fifth Amendment

Plaintiff alleges that defendant's conduct in arresting her violated her Fifth Amendment rights. Defendant argues that the Fifth Amendment does not apply to an alien under the circumstances and further that the claim under the Fifth Amendment fails on the merits. These arguments are without merit.

1. Applicability of the Fifth Amendment

The Fifth Amendment to the Constitution provides in relevant part that "[n]o person shall be . . . deprived of life, liberty, or property without due process of law." The Court of Appeals in Lynch plainly alludes to this right. All aliens, including illegal aliens, "are entitled to the guarantees of the fifth and fourteenth amendments." Lynch v. Cannatella, 810 F.2d 1363, 1373 (5th Cir. 1987).

It has been settled for over a century that all aliens within our territory are 'persons' entitled to the protection of the Due Process Clause. Aliens residing in the United States for a shorter or longer time, are entitled, so long as they are permitted by the government of the United States to remain in the country, to the safeguards of the Constitution, and to the protection of the laws, in regard to their rights of person and of property, and to their civil and criminal responsibility. . . . The Japanese Immigrant Case, 189 U.S. 86, 100-101 . . . (1903), settled any lingering doubt that the Fifth Amendment's Due Process Clause gives aliens a right to challenge mistreatment of their person or property.

Demore v. Hyung Joon Kim, 538 U.S. 510, 543 (2003) (internal quotation marks and citation omitted).

It is well-established that "[w]hatever his [or her] status under the immigration laws, an alien is surely a 'person' in any ordinary sense of that term. Aliens, even aliens whose presence in this country is unlawful, have long been recognized as 'persons' guaranteed due process of law by the Fifth . . . Amendment." Plyer v. Doe, 457 U.S. 202, 210 (1982); see also Mathews v. Diaz, 426 U.S. 67, 77 (1976) ("The Fifth Amendment, as well as the Fourteenth Amendment. protects every one of [the aliens within the jurisdiction of the United States] from deprivation of life, liberty, or property without due process of law"); Wang v. Reno, 81 F.3d 808, 817 (9th Cir. 1996) ("[w]e note . . . that although the Fourth Amendment does not apply to a search on foreign soil of a foreign national's property, an alien may invoke the Fifth Amendment to challenge the admission of evidence obtained in a foreign country through means that 'shock the conscience.'"). Defendant provides no supporting authority for the proposition that the Fifth Amendment does not apply to plaintiff's circumstances, and the weight of authority firmly contradicts his argument.

2. Merits of the Fifth Amendment Claim

Defendant's argument on the merits of defendant's Fifth Amendment claim does not differ in character from the argument on the merits of the Fourth Amendment claim.

Defendant relies on the standard set forth in Graham v. O'Connor, 490 U.S. 386 (1989), as applied in resolving issues as to the merits of the Fourth Amendment claims above, as setting forth the applicable Fifth Amendment standard. Under the reasoning set forth above, this Court would agree. Mindful that the Court in Graham rejected the notion that all excessive force claims would be governed by "a single generic standard," id. at 393, the fact that the Fourth Amendment applies to plaintiff would require under Graham that the displacement of the substantive due process claim by the Fourth Amendment claim, id. at 395, regardless of whether the source of due process is the Fourteenth Amendment or Fifth Amendment.

Assuming arguendo that this Court were to conclude that the Fourth Amendment protections are unavailable to plaintiff, the same could not be said and Graham would be inapposite. Graham only dictates a particular standard when the Fourth Amendment and substantive due process theories could apply. Id. In the absence of Fourth Amendment protections, the governing standard would be substantive due process under the Fifth Amendment.

Substantive due process under the Fifth Amendment is violated by governmental conduct that either (1) deprives a plaintiff of an identified interest in life, liberty or property protected by the Fifth Amendment, or (2) "shocks the conscience." Aversa v. United States, 99 F.3d 1200, 1215 (1st Cir. 1996); United States v. Salerno, 481 U.S. 739, 746 (1987) ("So-called 'substantive due process' prevents the government from engaging in conduct that 'shocks the conscience,' . . . or interferes with rights 'implicit in the concept of ordered liberty'" (internal quotation marks omitted)). Due process of law claims require

an evaluation based on a disinterested inquiry pursued in the spirit of science, on a balanced order of facts exactly and fairly stated, on the detached consideration of conflicting claims . . . on a judgment not ad hoc and episodic but duly mindful of reconciling the needs both of continuity and of change in a progressive society.

Rochin v. California, 342 U.S. 165, 209-10 (1952) (citation omitted).

Conduct that "shocks the conscience" does "more than offend some fastidious squeamishness or private sentimentalism about combating crime too energetically" and would be considered more akin to the "rack and the screw" on the spectrum running from constitutionally appropriate to constitutionally inappropriate governmental conduct. Id. It envisions conduct "so 'brutal' and 'offensive' that it [does] not comport with traditional ideas of fair play and decency." Breithaupt v. Abram, 352 U.S. 432, 435 (1957), or conduct "properly . . . characterized as arbitrary . . . in a constitutional sense," County of Sacramento v. Lewis, 523 U.S. 833, 847 (1998).

Defendant does not argue in the alternative that its conduct falls within the range permitted under the aforementioned standard. As such, the issue is not briefed in the alternative and will not be addressed absent supporting authority or argument. FED. R. CIV. P. 7 (b) ("motion . . . shall state with particularity the grounds therefor"). The above standard is therefore set forth only for reference in future proceedings if necessary.

Summary judgment is denied on the Fifth Amendment claim, but based on this Court's holding on the Fourth Amendment claims the parties are notified that the Fourth Amendment standard governs disposition of the present case. The Fifth Amendment claim under a substantive due process standard under Graham is equated to the Fourth Amendment standard and does not constitute a separate claim.²⁹

29 It could be argued that the Fifth Amendment subsumes the protections of the Fourth Amendment for aliens and they are not therefore one of "the people" and as such the Fourth Amendment would be incorporated into the due process liberty analysis. While this Court would likely conclude as much if the Fourth Amendment were not implicated, such is not necessary given the ruling in the present case.

IV. CONCLUSION

Defendant's motion for summary judgment (Doc. No. 37) is denied. Plaintiff's motion for leave to file a response to defendant's motion for summary judgment in excess of ten pages (Doc. No. 32) is granted. Defendant's motion to stay discovery (Doc. No. 28) is denied.

SO ORDERED.