End the duopoly

The Fragility of Immigrants’ Constitutional Protections

On the night of July 27, 2017, police in the Memphis suburb of Southaven, Mississippi, responded to a domestic-violence report. They went to the wrong address, knocked loudly, and, a short time later, shot through the door, fatally hitting the homeowner, Ismael Lopez, in the back of the head. Officers later claimed that Lopez had pointed a gun at them; his wife, who was present, denies this.

Those events are not before the Supreme Court this term and they may never be, but the killing of Lopez and its aftermath illustrate the stakes in two cases the Court will hear soon.

Lopez’s widow, Claudia Linares, has filed a $20 million excessive-force lawsuit against the City. The City recently asked a federal court to dismiss it. Lopez, the City says, was an undocumented immigrant. Thus, “Lopez may have been a person on American soil, but he was not one of the ‘We, the People of the United States’ entitled to the civil rights invoked in this lawsuit,” the City said in a memo supporting its motion to dismiss the case. And thus, he had no constitutional protection against “unreasonable searches and seizures.” (Being shot to death is, in Constitution-speak, a “seizure.”)

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The 1990 Supreme Court case on which Southaven’s brief relies, United States v. Verdugo-Urquidez, is what I call an “Inigo Montoya case”—it does not mean what the City thinks it means. Verdugo-Urquidez concerned a Mexican national who did not live in the United States but who had been brought from Mexico to a U.S. border crossing by Mexican police and arrested by U.S. marshals in the U.S. Then U.S. law-enforcement personnel, working with Mexican police, searched two of his homes without a U.S. warrant. The homes, however, were in Mexico. The Court held that Verdugo-Urquidez could not invoke the Fourth Amendment right against “unreasonable searches” to suppress the evidence seized outside the country.

It is, to say the least, a long way from “Federal agents can search a nonresident’s homes outside the country” to “Local police can kill immigrants living in the U.S. in their own homes 800 miles from the nearest U.S.-Mexico crossing.”

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