My colleague, J. Craig Williams, rightly criticizes a trio of Ninth Circuit cases involving border searches.  In the three cases, Flores-Montano, Hernandez, and Chaudrey, various destructive border searches were upheld despite the apparent lack of probable cause.  Interestingly, one dissenting judge accurately pointed out that there was more than enough probable cause in each case to support these border searches.  Yet, spite of the evidence, the goverment stipulated in each case it did not have probable cause.  The judge objected that the goverment was attempting to create case authority that probable cause for border seraches is never needed.  If that was its goal, it probably succeeded in these three cases.  I find the results disturbing.  As J. Craig Williams noted, even if these kinds of searches can be generally upheld on a national security basis, no weapons of mass destruction were found. Bad news for civil rights, but good news in the war against terrorism, I guess.

Actually the good news is that, after all of the drilling of holes through car doors and dismantling, anything was found at all.  Suppose after Customs had thoroughly drilled holes in your Lamborghini, they found nothing. Sue’ em, Right?

Wrong. The concept of sovereign immunity still applies.

The federal government has partially waived sovereign immunity by statute, the Federal Tort Claims Act.  It is not as much help as you might think, though.  The act permits suits against the federal government with certain exceptions. You're probably way ahead of me here, but one of the exceptions is 28 U.S.C. 2680 (c), which absolutely bars any claim against the United States Government "arising in respect of . . . the detention of any goods or merchandise by any officer of customs." In plain English, this means your Lamborghini will be repaired at your own cost.

And the courts interpret "arising in respect of" in a very broad way. For example when a customs agent inspected a computer chip manufacturing machine, he cut the protective vacuum seal, allowing the sensitive machine (worth several Lamborghinis) to rust on the inside. The customs exception of the Federal Tort Claims Act barred recovery.

Now, a clever lawyer could imagine that instead of suing the United States, you could sue the individual customs officer under the Bivens doctrine.

The feds are one step ahead of you. Under federal law, the government has the power to substitute itself as the party in interest if a government employee is sued in the course and scope of his employment.  So, if the customs officer acted in the course and scope of his employment, the government substitutes in and next asserts sovereign immunity, getting the case dismissed.

So they get you coming and going.

The only loophole is a claim that a bailment was created.  Then you can argue that there was an implied contract, and the federal government has waived sovereign immunity for contracts under the Tucker Act.  This end run was approved by the U.S. Supreme Court in Hatzlachh and applies only in a very limited situation, where customs is essentially storing property to be returned to its owner.  In that situation, an "implied contract" bailment is created.

Otherwise, as the Matsushita court essentially said: "If you don't like it, write your congressman."

Actually, this has better results than you might at first expect.  Congress has a procedure of introducing "private bills" to remedy particulary egregious cases.  Contact us for more details.

Posted by Joseph R. McFaul on Tuesday, September 27, 2005 at 00:00 Comments Closed (0)

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