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The 5th U.S. Circuit Court of Appeals has held that noncitizens stopped at the U.S. border have the same constitutional right as citizens to be free from false imprisonment and the use of excessive force by law enforcement officers. Martinez-Aguero v. Gonzalez, No. 05-50472. In 2003, Maria Antonieta Martinez-Aguero, a Mexican national, filed a false arrest, “constitutional tort” suit in a Texas federal court against Humberto Gonzalez, a U.S. Immigration and Naturalization Service (INS) border patrol agent. She alleged violation of her First, Fourth and Fifth Amendment rights, when she was falsely arrested in October 2001 as she tried to enter the United States, and claimed unspecified damages. Gonzalez sought summary judgment on the ground of qualified immunity. He said Martinez-Aguero, as a nonresident alien who had not gained entry to the United States, wasn’t entitled to the protections of the U.S. Constitution. Upon denial of his motion, Gonzalez filed an interlocutory appeal to the 5th Circuit. The 5th Circuit affirmed and remanded the suit to the district court for further proceedings. In her complaint, Martinez-Aguero said that she had attempted to enter the United States from Mexico so she could accompany her aunt to the Social Security office in El Paso, Texas. Martinez-Aguero and her aunt had border-crossing cards, but the cards were not biometric machine-readable cards that the INS at that time had recently begun to require. Martinez-Aguero and her aunt had applied for new cards in July 2001, but had not received them at the time they attempted to cross the border. Martinez-Aguero and her aunt were traveling by bus when U.S. immigration officials stopped the vehicle outside the port of entry but within territorial United States. Gonzalez ordered Martinez-Aguero and her aunt off the bus and, after looking at their documents, told them they could not enter the United States. According to Martinez-Aguero, Gonzalez eventually yelled profanities at the women in Spanish and threw their visas to the ground. She said that she made a sarcastic remark to her aunt about Gonzalez’s bad language, upon which Gonzalez grabbed her arms, twisted them behind her back, pushed her into a concrete barrier and kicked her in the lower back with his knees. Another agent took Martinez-Aguero into an office and handcuffed her to a chair, where she had an epileptic seizure. In her complaint, Martinez-Aguero alleged that she now suffers from recurrent seizures, memory problems and back injuries. In his motion for summary judgment, Gonzalez alleged that Martinez-Aguero became verbally abusive when he told her that she and her aunt could not enter the country, and that she used “profane language” even after he warned her that he would arrest her if she did not stop. He alleged that he told Martinez-Aguero she was under arrest, but she walked away from him. He grabbed her wrist and placed her in an “arm/wrist lock.” He alleged that it was standard procedure for someone in custody to be handcuffed to a chair. Writing on behalf of the 5th Circuit panel, Judge Jerry Smith said, “No reasonable officer would believe it proper to beat a defenseless alien without provocation, as [the plaintiff] alleges.” Martinez-Aguerois was entitled to Fourth Amendment protection to “be free of entirely meritless arrests and the excessive use of force.”

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