Friday, October 4, 2019

Wrong place, wrong time, wrong name (sort of)

This guy was detained by immigration authorities and remained in custody for four days before authorities released him because they arrested the wrong guy under an immigration detainer. He sued for false arrest, but the trial court dismissed the case on a Rule 12 motion. The Court of Appeals reinstates the false arrest claim.

The case is Hernandez v. United States, issued on September 17. Wrong place, wrong time, right name, sort of. Luis Hernandez is an American citizen. But the government moved to deport him, believing he was a native of Honduras. In fact, there was another person with a similar name, Luis Enrique Hernandez-Martinez, with the same birthday as our plaintiff. Eventually, plaintiff was allowed to go home.

The police are sometimes allowed to get it wrong. Many people are arrested or detained for offenses they did not commit, but that does not mean the police lacked probable cause to arrest. False arrest cases are dismissed on a regular basis because "probable cause" sets a low bar for the police to satisfy.

But in this case, at least as set forth in the complaint, plaintiff has a case. The difficult issue in this case is whether Department of Homeland Security had probable cause to lodge an immigration detainer. The Second Circuit (Chin, Wesley and Kaplan [D.J.]) says, "because it is a constitutional right to be free from an unreasonable seizure, a reasonable officer must act diligently before lodging a detainer against an individual and depriving that individual of his or her freedom." The Circuit cites Dunaway v. New York, 442 U.S. 200, 214‐15 (1979). That is about as pro-plaintiff a statement you'll see in a false arrest case, as courts usually add that law enforcement do not have to conduct a full investigation into someone's guilt or innocence before taking them into custody.

Plaintiff sufficiently alleges a false arrest claim. The Court writes:

The Complaint alleges that the Government lacked probable cause because Hernandez was the wrong person: he was not of Honduran nationality, his middle name was not ʺEnrique,ʺ his last name was not ʺHernandez‐Martinez,ʺ his name therefore did not match the name on the detainer, and DHS failed to inquire into whether it was issuing a detainer for the right person. We agree that these allegations are sufficient to plausibly allege a lack of probable cause.
Since "the names did not match, further inquiry was required." Moreover, "the Complaint plausibly alleges that the Government failed to conduct even a rudimentary inquiry into Hernandezʹs citizenship or identity. Indeed, Hernandez has alleged that his citizenship was readily ascertainable, and officers 'may not disregard facts tending to dissipate probable cause.'ʺ

The government argues that plaintiff has no case, claiming that "the similarity in surnames alone is
sufficient to establish probable cause because of the convention in Spanish speaking cultures to shorten surnames composed of the fatherʹs and motherʹs surnames to the first of the two surnames." Creative argument, but no dice. The Court says:

While names of foreign immigrants may be less familiar to some in the United States and ʺdistinctions may therefore be more difficult to spot than variations between certain European or Anglicized names (e.g., John/Jon, Smith/Smyth, or Eric/Erik), a lack of cultural familiarity does not excuse disregarding easily confirmable differences.ʺ Indeed, ʺ[t]o hold otherwise would suggest that a lower standard of proof/lower level of investigation might be necessary in the case of individuals with Latin or otherwise non[‐]Anglo names, raising a host of constitutional concerns.ʺ
 No case quite holds this (other than this one) but the Second Circuit does cite to a few cases that touch upon this issue: United States v. Brignoni‐Ponce, 422 U.S. 873, 886 (1975) (ʺMexican descent . . . alone [does not] justify . . . a reasonable belief that [petitioners] were aliensʺ). Also, "Allowing law enforcement officers to target people based solely on characteristics such as ethnicity or national origin is to ʹcondone ethnic harassment.ʺ Zuniga‐Perez v. Sessions, 897 F.3d 114, 127 (2d Cir. 2018)

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