The Eleventh Circuit Court of Appeals has issued some noteworthy decisions in the last few weeks concerning the rights of foreign nationals in both criminal and civil proceedings. One case, Gupta v. McGahey, No. 11-1420, concerned the right of an immigrant to sue immigration officers for civil rights violations; the Eleventh Circuit ultimately decided he had no such right. Another case, United States v. Garza-Mendez, No. 12-13643, involved an effort by an immigrant to reduce his sentence for a federal conviction of unlawful entry by obtaining a “clarification” order from a state court judge for a prior domestic violence conviction which had been used by federal prosecutors to enhance his sentence; the Eleventh Circuit turned aside this effort, as did the lower court, finding that the order was just a belated effort by the immigrant party to influence the outcome of his federal case. In the last case, Donawa v. U.S. Att’y General, No. 12-13526, a foreign national of Antigua tried to avoid deportation by arguing that two prior Florida convictions for drug-related offenses which immigration authorities had used to initiate deportations proceedings against him were not deportable offenses; the Eleventh Circuit agreed in part and sent the case back to the immigration judge for a second look.
In each of these three cases, Judge Martin ended up on the side of the immigrant. She was alone in that regard in two of the cases where she issued strong dissents and took her colleagues to task for what she believed was their “astonishing” and “cursory” legal reasoning. As someone who spent most of her legal career prosecuting individuals, one might find Judge Martin’s positions surprising. But one’s past experience is not always a reliable predictor of future action. In fact, the two sometimes have no discernible correlation; Obama is a good example of that.
It will be interesting to see how Judge Martin develops as a jurist and to what extent she is able to influence other members of the Eleventh Circuit, or instead alienates them. If the court’s recent decisions are any indication, Judge Wilson has signaled that he too may be prepared to speak out when his colleagues reach an unjust result.
The policies of officers stopping people for minor or nonexistent offenses has been well documented, most recently in the Floyd case out of New York, where a federal judge found the practice unconstitutional.
The 11th Circuit Court of Appeals recently denied a request for rehearing which would have raised a similar issue. The case is United States v. Kareen Rasul Green (No. 11-1558). Judge Barkett, joined by Judge Martin, dissented from the denial, and she did so in particularly strong terms. Interestingly, she discussed the relevance, or irrelevance as the case may be, of a “high-crime neighborhood” which is often a proxy for race, as a factor that is often used to justify a stop. According to Judge Barkett:
[T]he fact that the stop occurred in a high-crime area cannot, on its own, justify this frisk. The vast majority of people that live, work, or travel through high-crime neighborhoods do not participate in any criminal activities, much less activities that put officers and other community members at risk. This is, in part, why several of our sister circuits have warned of “the dangers of relying too easily or too heavily on these contextual factors.”
Judge Barkett does not stop there, however:
Focusing on the fact that a crime occurs in a purportedly high-crime area carries with it other significant risks. In addition to eroding the liberty of all individuals in these communities, the high-crime neighborhood designation “raised special concerns of racial, ethnic, and socioeconomic profiling.” The Terry [v. Ohio] decision itself recognized these dangers, requiring individualized suspicion in part “because according the police unfettered discretion to stop and frisk could lead to harassment of minority groups and ‘severely exacerbat[e] … police-community relations.” Moreover, because neighborhoods descried as “high-crime” are almost always poor communities of color, excessively-broad police discretion to frisk suspects in such neighborhoods facilitates the disproportionate targeting of poor people of color by law enforcement, contributing to unjustifiable levels of racial and socioeconomic disparities in the criminal justice system.
I have omitted citations and footnotes from these quotes; they are available in the actual order itself, which can be downloaded here.