Does an American citizen have any constitutional protection protecting him or her against arbitrary arrest and jailing? Are these rights clearly established? You may think so but you are wrong according to the Sixth Circuit's very disturbing decision in Ortega v. United States Customs Enforcement, No. 12-6608 (December 10, 2013).
An American citizen had local law enforcement agents come to his home, arrest him, taken to jail and lock him up. The local police lock him up they said because a federal agent told them to. The federal agent explained that he did so even though all the information available to him that he reviewed indicated that there was no basis to arrest the American citizen. On the notion that the United States Constitution prohibits government agents from arresting and jailing our citizens on no grounds whatsoever, the citizen filed suit. The federal district court in Louisville threw the case out of court on the motion to dismiss, and the Sixth Circuit most "happily" affirmed.
The American citizen, Richard Ortega, pleaded guilty to DUI and received a not unusual sentence for this offense in Kentucky of 11 days home confinement, one which permitted him to go to work, the doctor and to church. A federal immigration agent, John Cloyd, determined that he had no information whatsoever to question Ortega's immigration status, noting specifically that both Ortega's name and birthdate were different than any illegal alien for which he had information. Nevertheless and even though all the information Cloyd had indicated that there was no basis whatsoever to do so, Cloyd had issued a detainer for Mr. Ortega. As a direct result of Cloyd's actions, two local officers, Lori Eppler and William Skaggs, went to Ortega's home, arrested him and put him in jail where he stayed for three days.
When he got out of jail, Ortega filed suit claiming that his arrest and jailing violated his constitutional rights to due process of law and that under the Fourth Amendment prohibiting the arbitrary arrest and jailing of American citizens. On a motion to dismiss, the federal district court in Louisville, Hon. John Heyburn, threw Ortega's case out of court, ruling that Cloyd, Eppler and Skaggs were entitled to qualified immunity.
The Sixth Circuit "happily" ruled against Mr. Ortega and affirmed the dismissal of his case. Even though Cloyd admitted that every piece of information he had available to him indicated that there was no basis whatsoever to arrest or detain Mr. Ortega, the Sixth Circuit, nevertheless and inexplicably, ruled that Cloyd had simply made a mistake. Further, the Sixth Circuit concluded that it was not clearly established under the United States Constitution that an American citizen was protected against arbitrary, unfounded arrest and jailing where there was no claim at all of there being any probable cause or grounds for the arrest or detention. And the court added that it "happily" reached this conclusion.
The Sixth Circuit's decision was not unanimous. Circuit Judge Jeffrey Sutton wrote the majority opinion and was joined by District Judge Timothy S. Black of Southern District of Ohio. Circuit Judge Damon Keith dissented, continuing his decades-long fidelity to constitutional protections for our citizens and observing as follows:
The majority's holding allows an officer to blatantly violate the Fourth, Fifth, and Fourteenth Amendment rights of an American citizen[.]
The Sixth Circuit's majority opinion is disappointing and disturbing for at least three reasons. First is its tone, which is gleeful. An American citizen was taken from his home by government agents and jailed and not even a pretense of a lawful reason for doing so was offered. Not only was no attempt at an explanation offered, the federal agent admitted readily that all the information he had and reviewed indicated that there was no basis whatsoever to or arrest or detain Mr. Ortega. And yet with unabashed glee the Sixth Circuit "happily" throws the case out of court.
The second is the court's conclusion that Mr. Ortega had been "mistakenly" arrested and jailed. If the federal agent had some information indicating that there were grounds to arrest Mr. Ortega even if that information was weak or inconclusive, it would be one thing. A mistake could be made legitimately if there had been at least some information to go on. But the federal agent, according to the court's opinion, admitted that all the information he had and reviewed indicated that there was no basis whatsoever to arrest or detain Mr. Ortega: the federal agent admitted that Mr. Ortega's birth date and name were different from any illegal alien for which he had information. There is no mistake made were all the information indicates one thing but is intentionally and deliberately disregarded. Mistake? As Judge Gilman of the Sixth Circuit once observed,"there is no way."
The third is that the Sixth Circuit in its glee to dispose of Ortega's case does not bother to rule that the United States Constitution does in fact provide protection against the very type of arbitrary arrest and jailing that Ortega suffered. The defense of qualified immunity can be asserted successfully where a government agent can claim plausibly that the constitutional right alleged to have been violated was not "clearly established" by judicial decision at the time. By gleefully refusing to rule that Mr. Ortega's constitutional rights were violated, even if not "clearly established" at the time by prior judicial decisions, the Sixth Circuit majority leaves the next American citizen arrested and jailed arbitrarily and wrongfully with no opportunity for relief. This simply provides sanction and shelter for the arbitrary arrest and jailing of American citizens in the future. And so it goes.
Robert L. Abell
www.RobertAbellLaw.com
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