Introduction
THE WINDSHIELD WIPERS SWIPED BACK AND FORTH AS Border Patrol Agents Brady and Harkins waited by the side of Interstate 5 near San Clemente, California. It was early in the evening of Sunday, March 11, 1973.1 On the news, there were reports about the standoff between the American Indian Movement and federal officers at Wounded Knee, the brewing Watergate scandal, and the impending departure of the last American troops from Vietnam. The agents’ vehicle was parked perpendicular to traffic and their headlights lit up the raindrops splashing onto the pavement, growing into pools on the side of the highway. The clouds obscured the glow of the moon that normally reflected off the Pacific Ocean, only a few hundred feet to the west. Every few moments, a northbound vehicle passed through the headlight beams, briefly illuminating the profiles of the passengers inside.
The rainy weather and a shortage of agents on duty that night forced Brady and Hawkins to close the permanent Border Patrol checkpoint on the interstate, which was about halfway between San Diego and the rapidly expanding southern suburbs of Los Angeles. They were sixty-six miles north of the busiest border crossing in the world, where the San Ysidro Port of Entry leads to Tijuana on the other side. The agents knew from experience that smugglers monitored the interior checkpoint on I-5 and waited until it was closed to send their human cargo north. The Border Patrol regularly closed the checkpoint on Sunday afternoons so as not to inconvenience Americans traveling back home to Los Angeles from a weekend outing in San Diego, but it also occasionally closed due to inclement weather or lack of staffing, as was the case this evening.
Although the agents were not eager to get out in the driving rain and the 50°F temperatures, they carefully observed the passing cars to see if the brief glimpse of the silhouettes suggested the vehicle contained undocumented immigrants. After a few minutes, a 1969 Chevrolet sedan caught their attention. There were three people in the vehicle, two men and a woman. After quickly discussing it, the Border Patrol agents agreed that all three looked Mexican. They switched on their siren, put the car in gear, and began the pursuit.
Felix Brignoni-Ponce looked nervously in his rearview mirror as the flashing lights danced around in the driving rain.2 He hoped they had safely slipped past the shuttered Border Patrol checkpoint, but as the patrol car picked up speed and settled in behind them, he knew they were in trouble. Felix had no other option but to pull over to the side of the interstate and wait for the Border Patrol agents to approach.
The patrol car doors opened, and the agents’ flashlights signaled that one agent was coming to the driver’s side door while the other was positioned behind the passenger side of the Chevy. Felix rolled down his window and raindrops landed on his arm. The agent asked about the citizenship of the people in the car. Felix did not speak much English, but it became clear that the agents’ hunch that he was from Mexico was wrong. He grew up in Puerto Rico and was a U.S. citizen. He produced his ID card and showed it to the agent. Agent Harkins asked him to step out of the vehicle and they walked back to the trunk, which Felix opened and Agent Harkins inspected.
Agent Brady rapped his knuckles on the passenger-side window and identified himself. As the window rolled down, he asked the two passengers about their citizenship in English. They indicated that they only spoke Spanish, so he asked them again in Spanish. Elsa Marina Hernández Serabia did not have an ID card but informed the agent that she was not Mexican, but Guatemalan. She did not have documents that gave her the right to be in the United States. The only person from Mexico in the vehicle was José Nuñez Ayala, but he also did not have the proper documents to be in the United States. Elsa and José were handcuffed and taken to the San Clemente Border Patrol station for processing.
Although Felix Brignoni-Ponce was an American citizen, he was also arrested and charged with a felony: knowingly transporting illegal aliens.3 Using a card from his pocket, Agent Brady read Felix his Miranda rights in Spanish, and he was also taken to the San Clemente station. On March 14, his bond was set at $7,500 ($43,500 in 2022, adjusted for inflation) and he was assigned a federal public defender. On April 12, his jury trial began in the court of Judge Howard Turrentine. Turrentine was appointed to the bench in 1970 by Richard Nixon, and his rugged tough-guy appearance belied his kindness and reasonable approach to the job.4 Felix’s two passengers were called as witnesses in the trial; the following day, the charges against them were dropped and they were deported. On May 14, 1973, the jury found Felix guilty on both counts. Judge Turrentine sentenced him to four years in federal prison followed by five years of probation.
In their report about the stop and in their sworn testimony at the trial, Agents Brady and Harkins stated that the only reason they stopped the vehicle was the Mexican appearance of the people inside. Felix, with the help of his tireless lawyers from the Federal Defenders of San Diego, appealed to the Ninth Circuit Court of Appeals in San Francisco, arguing that race alone did not meet the standard of reasonable suspicion to justify a traffic stop by the Border Patrol. Indeed, Felix was a U.S. citizen and was of Puerto Rican, not Mexican, origin. The fundamental question of the case was whether the Border Patrol could use racial profiling to make a warrantless stop on an American interstate highway over sixty miles north of the border.
The Fourth Amendment of the Constitution protects everyone inside the territory of the United States, both citizens and noncitizens, from unreasonable searches and seizures. It requires police officers to obtain a warrant from a judge based on probable cause that a crime has been committed in order to carry out a search. Can the Border Patrol really stop a car on a highway over sixty miles north of the border based only on the fact that the driver and passengers looked Mexican? The case would go all the way to the highest court in the land, but at the time Agents Brady and Harkins made the stop, they were operating well within the loosely defined regulations that guided the actions for the Border Patrol in its first fifty years of existence.
When the United States Supreme Court heard Felix Brignoni-Ponce’s case in 1975, it faced a difficult decision about what took precedence on American roads: the authority of the Border Patrol to search for undocumented immigrants, or the Fourth Amendment’s constitutional protections against unreasonable searches and seizures. The verdict that the justices reached about the legality of the Border Patrol’s stop continues to shape the lives of hundreds of millions of Americans and immigrants through the present day.
In the summer of 2020, there were civil demonstrations across the United States after the killing of George Floyd, an unarmed Black man, by Minneapolis police. Among the many videos of excessive police violence that circulated that summer, a series of videos stood out that documented mysterious late-night detentions by heavily armed agents in Portland, Oregon, in July 2020.
One video begins at a typical urban intersection with two men approaching on a crosswalk. Across the street, the headlights of an idling minivan illuminate the road while green leaves sway in the streetlights. A WE’RE OPEN sign is strung across a Starbucks behind them, but it is in fact closed because it is the middle of the night. After a couple of frames, it is clear that the two men are not regular pedestrians but are incongruously dressed in desert-toned camouflage and body armor. The only marking to identify them is a yellow patch that says POLICE on the front of their bulletproof vests. They wear helmets and sunglasses, even though it is the dead of night. The woman holding the camera, apparently a mom, instructs them to “use your words” and then asks, “What are you doing?” They do not respond, but one of the men pulls a camo mask up over his face as he passes her.5
The camerawoman turns to follow them, and their prey comes into view. Dressed in black with hands up, a person stands beside the graffiti-covered plywood of a boarded-up building. The camerawoman again encourages the armed men to “use your words” but as they close in, panic creeps into her voice. “What are you doing?” she yells.
Their target is wearing a black mask, a black helmet with a headlamp, and a black sweatshirt. The person in black says, “I didn’t do anything wrong.”
The camouflaged men reply, “Let’s go.”
The individual puts their hands behind their back to be cuffed, but the armed men don’t use handcuffs. Instead, they grab the individual’s arms on each side and walk them to the waiting minivan across the street.
The camerawoman asks again, “What is going on? Who are you?” No one answers. A few other people on the street try to get the person in black to give them their name, but they wisely remain quiet. As the armed men force the person in black into the van, the camerawoman says, “We got you, friend. Someone will get you out.”
Another man makes sounds of disgust as if he has just tasted something unexpected and terrible. He says, “They’re just kidnapping people.” Then the minivan speeds away.
At first, there was confusion about the identities of the armed men. As the Black Lives Matter protests of 2020 spread across the United States, heavily armed white civilians began appearing at the protests, many associated with the far-right Three Percenters, Oathkeepers, Proud Boys, and Boogaloo movements. There was concern that the video documented a kidnapping by one of these militia groups. However, others quickly realized the men in camo were likely members of the U.S. Border Patrol. There were already reports that a Border Patrol Tactical Unit (BORTAC) was in Portland to protect the Mark O. Hatfield United States Courthouse and other federal buildings during the ongoing protests. Within a day, it was confirmed that the Border Patrol carried out the mysterious late-night detentions.
Customs and Border Protection, the parent agency of the Border Patrol, is the largest law enforcement force in the United States, yet the extent of the Border Patrol’s authority is not well known or understood. For many Americans, the fact that the Border Patrol was operating so far from what they considered to be the border was a baffling revelation. Black Lives Matter and social justice activist Bree Newsome Bass tweeted, “WTF is Border Patrol doing in a place that’s not the border???”6 Others asked why the Border Patrol was detaining American citizens in the middle of the night at a protest against police violence. What could that possibly have to do with the Border Patrol’s mission to conduct immigration enforcement?
In my own research at the border, I experienced the seemingly unchecked authority of the Border Patrol in 2011 when I was driving on a public road with a rancher named Bill Addington.7 It was a sunny and warm March afternoon, and we were headed to see a section of the border wall near his land in Sierra Blanca, about an hour southeast of El Paso, Texas. To the east, we could see the Quitman Mountains; across the green valley of the Rio Grande, the dry desert landscape of Chihuahua, Mexico, sprawled out in the distance.
Despite the beauty, Bill was irritated because the U.S. Border Patrol would not leave us alone. “Well, it gets old,” he said with exasperation. Dressed in a plaid shirt, timeworn jeans, and a dusty baseball cap, Bill’s weathered face and gap-toothed smile looked the part of hardscrabble rancher. Bill’s family has lived on this land since before the Border Patrol even existed. His grandfather founded the Guerra Farm in 1919 to use the water of the Rio Grande to grow cotton and raise cattle. Bill’s mother continued the tradition and now it has passed onto Bill, who knows every inch of the land like it is a part of his being. The Border Patrol agents, though, do not know Bill or his deep roots. They all commute back and forth from El Paso.
The first two agents began following us as soon as the dust kicked up behind my rental car after we turned onto the gravel of Route 192, headed toward the border. Knowing what was coming, Bill tried to be proactive. We pulled over and told them what we were doing. The second, third, and fourth Border Patrol trucks pulled us over during the thirty minutes we spent driving down the public road to see the border wall and the wetlands beyond it.
“Don’t they have a radio?” Bill asked, hoping in vain that they would use it to let the other agents in the area know what we were up to. By the time the fifth Border Patrol truck sped up behind us with its lights flashing, Bill was fed up. “Getting stopped by the Border Patrol is a regular thing for me, but I get tired of it. It’s like living in Russia where they check you at checkpoints. I guess Germany was worse. It’s similar to that.”
My drive along the border with Bill made me wonder how the border zone had become the focus of such intense policing inside the United States. Was it really possible that the Border Patrol can legally stop the same vehicle five times in less than an hour while driving along a public road in the United States?
A few days later, I was in El Paso recounting my drive with Bill to a Mexican American community organizer, who smiled and laughed. “Just think if you really fit the profile. They would have had three cars there, put you in the back, and then asked questions . . . Sometimes I feel like the Constitution does not exist here at the border.”
The drive with Bill and particularly the comment of the community organizer stuck in my mind and led me to write this book. I assumed the U.S. Constitution applied equally everywhere in the territory of the United States, but being stopped and interrogated five times in less than an hour on a public road left me with many unanswered questions. The late-night Border Patrol kidnappings of protesters in Portland left others with similar questions. Why can the Border Patrol operate so far from the actual borders of the United States? How does the ability of the Border Patrol to make seemingly unlimited stops square with the Fourth Amendment of the Constitution, which protects against unreasonable searches and seizures and requires a warrant in most instances? Should the Border Patrol be able to use race in their decision to make a stop?
I traveled the border zone and worked my way through the archives, looking for answers. Along the way, I uncovered the untold story of how the courts have granted the Border Patrol exceptions to the Fourth Amendment to an extent that would shock most Americans. Furthermore, the Border Patrol is authorized to use these special rules in an area much larger than most Americans would ever guess. Perhaps most surprisingly, the expansive border zone and the use of racial profiling by the Border Patrol was reviewed, and largely approved, by the United States Supreme Court in a series of decisions in the 1970s that remain in force to the present day.
As I dug deeper, I discovered the outrageous behavior of early Border Patrol agents who operated with impunity, bringing a “shoot first, ask questions later” ethos to the enforcement of immigration laws. Almost a century later, those excesses have never been curtailed. Today, Border Patrol agents are arrested for off-duty criminal activity at a rate five times higher than regular police officers. However, Border Patrol agents are rarely disciplined for on-duty infractions. A 2021 report from Human Rights Watch based on internal DHS records described 160 sexual assaults and violent incidents by Border Patrol agents, including an agent offering to release a woman in exchange for oral sex, an agent undressing and touching a child in custody, and agents withholding food from a detainee until he signed a document he did not understand. A 2013 survey found that 11 percent of migrants said they were assaulted by agents during or after their apprehension, including being intentionally hit by vehicles, beaten while in custody, and sexually assaulted. Most never reported the abuse. However, another study found that 95 percent of abuse complaints that were filed resulted in no action taken by the agency.8
Since 2010, 119 people have been killed by the Border Patrol, including at least six who were standing in Mexico at the time. James Tomsheck, the Border Patrol’s inspector general during the Obama administration, has said that one-quarter of the killings by Border Patrol agents during his tenure were under suspicious circumstances, but he was prevented from properly investigating. Only once in the history of the Border Patrol has an agent been charged for an on-duty killing, and even then, that agent was not convicted of the crime.9
During the Trump presidency, the border became the focus of intense media coverage as a symbol of the worst atrocities of the administration. The “no tolerance policy” resulted in children separated from their families, and some were held for days in prisons cells meant for violent criminals. This came to be known as “kids in cages.”10 Other stories like the unwanted medical procedures performed on women in the custody of Immigration and Customs Enforcement, a separate agency tasked with interior deportations, reinforced the idea that the Trump administration represented a radical break with previous American policies.11
In reality, the violence of the Trump era was a continuation of decades-long patterns of violence toward immigrants at the border. The expansion and transformation of the Border Patrol described in this book is more insidious because it occurred under both Republican and Democratic administrations, as the agency has slowly but methodically accrued legislative and judicial precedents that legalize its extreme actions.
As Bree Newsome Bass’s tweet asking why the Border Patrol was even in Portland suggested, most Americans assume that the border zone is defined as an area relatively close to the actual border. They think of the border as a distant place that does not affect them, but that turns out not to be the case. In a 1947 administrative decision, made without public input, the Department of Justice defined the border zone as within one hundred miles of borders and coastlines, a vast area that includes nine of the ten largest cities in the United States and two-thirds of the American population.12
Portland, where the late-night detentions occurred in the summer of 2020, is within that zone, as are Boston, Chicago, Detroit, Houston, Los Angeles, Miami, New York, San Francisco, Seattle, and Washington, D.C. The entire states of Connecticut, Delaware, Florida, Hawai‘i, Maine, Massachusetts, Michigan, New Hampshire, New Jersey, and Rhode Island are in the border zone. If you are reading this book in the United States, the odds are that you are, at this moment, in the border zone.
Even though Portland falls within the hundred-mile border zone, it turns out that the agents at the summer 2020 demonstrations were operating under a completely different and novel interpretation of the U.S. code. Under this other section of the law, agents are no longer required to have an immigration purpose for their work and are allowed to operate across the entire United States.13 The result is that the Border Patrol is moving ever closer to becoming something the United States has never had: a national police force.
Nobody Is Protected tells the story of how the Border Patrol grew from a small and underfunded frontier agency, established in 1924, into a modern, sophisticated paramilitary force of 19,000 agents that claims the legal right to sweep people off the streets of an American city without a warrant or even probable cause that a crime was committed. The first section of the book begins with the Wild West origins of the Border Patrol and the failed efforts of a few government officials to rein in its most violent practices and prevent it from operating deep inside the United States. While all other police are bound by the Fourth Amendment, which protects citizens and noncitizens alike from unreasonable searches and seizures, the Border Patrol’s 1925 congressional authorization allowed agents to stop vehicles without a warrant for immigration inspections within the border zone.
For the first fifty years of the Border Patrol’s existence, the courts did not resolve this contradiction between the constitutional protections of the Fourth Amendment and the Border Patrol’s regulations, so agents stopped and searched anyone they wanted. The earliest Border Patrol agents were drawn from the rough-and-tumble world of the Texas Rangers and frontier law enforcement. They brought an “anything goes” ethos to the enforcement of the country’s immigration laws in the remote and desolate stretches of the border.
It was not until the 1970s that the questionable practices of the Border Patrol received any oversight from the Supreme Court of the United States. Its scrutiny then is largely due to the work of a few scrappy lawyers from a fledgling public defender’s office in San Diego. The four most significant Border Patrol cases, which are detailed in the second section of the book, were all argued by the same two lawyers, John Cleary and Chuck Sevilla. Cleary and Sevilla were young and idealistic but also unwavering in their pursuit of justice for their poor, immigrant clients. Their aggressive tactics in court garnered them the nickname “terrorists in suits” but also won them the grudging respect of prosecutors and judges in the courtrooms of Southern California. As they pressed the constitutional arguments against the Border Patrol’s invasive and racialized practices, the Supreme Court was forced to consider the expansive authority of the Border Patrol to make stops in the border zone without a warrant as well as whether race could be used as the only factor to make a stop.
Cleary and Sevilla faced an uphill battle at the Supreme Court, which had taken a much more conservative and pro–law enforcement turn in the early 1970s. Richard Nixon was elected president in 1968, promising a law-and-order crackdown across the country, and he was given the unique opportunity to appoint four new Supreme Court justices in his first term in office. However, one of those law-and-order Nixon appointees was a wild card whose careful, deliberative style often resulted in surprising decisions. Justice Lewis Powell had been a conservative corporate lawyer for decades, representing the likes of tobacco giant Philip Morris, but when he arrived at the court, he often found himself in the middle looking for compromise. Lewis Powell did not have any experience with the border or immigration, but he played a critical role in all the Supreme Court’s Border Patrol cases in the early 1970s, changing his mind at the last minute in the first case and writing the opinion in the next three.
In the four most significant Border Patrol cases, the Supreme Court decided whether Border Patrol agents could search a vehicle without any justification in Almeida-Sanchez (1973) and Ortiz (1975); could stop vehicles in the United States based only on the race of the driver and passengers in Brignoni-Ponce (1975); and could set up permanent checkpoints on interior roads inside the United States to briefly detain all vehicles in order to ask drivers about their immigration status in Martinez-Fuerte (1976).
In the first of those cases, Almeida-Sanchez v. United States in 1973, Justice Thurgood Marshall, an icon of the civil rights movement and the first Black man to serve on the Supreme Court, asked a series of questions that pressed the government’s lawyers about the true extent of the Border Patrol’s authority on American highways deep inside the United States. Unsatisfied with the responses, Marshall finally asked if the Border Patrol could legally stop and search the vehicle of the president of the United States without any evidence or suspicion whatsoever. When the lawyer said “Yes,” Marshall concluded, “Nobody is protected.”
The decisions in the 1970s Border Patrol cases set the parameters that are still in force today, giving the Border Patrol wide discretion to police for immigration violations inside the United States. The Border Patrol can stop virtually any vehicle or pedestrian in a zone within one hundred miles of the border and coastlines. In that interior zone, the Border Patrol can set up permanent checkpoints where they stop and detain every single vehicle, whether on a lonely back road or a major interstate highway. In all these interactions, the Supreme Court ruled that Border Patrol can legally use the race of the individual as a factor when selecting which vehicles to stop.
There were only 1,500 Border Patrol agents in the 1970s, but over 600,000 apprehensions per year at the border. In the decades since, even as the Border Patrol has become a completely different organization, the Supreme Court has not revisited the legality of racial profiling, warrantless stops, and the construction of interior checkpoints up to one hundred miles from the border.14 Today, there are over 19,000 agents. After the terrorist attacks of September 11, 2001, the Border Patrol rebranded itself as the front line against terrorist infiltration into the United States. The flood of national security appropriations that followed allowed not only the huge increase in agents but also the acquisition of a wide range of sophisticated military hardware ranging from high-tech surveillance equipment to the largest fleet of drones in the United States.
Despite this massive expansion, the average number of apprehensions per year has declined by 33 percent. From 2010 to 2020, the average Border Patrol agent made 22 apprehensions in the entire year, or less than 2 per month.15 In 2021, the number of apprehensions increased substantially to 1.7 million. However, that figure is misleading because it occurred when the United States used Title 42, a health directive, during the COVID-19 pandemic to immediately remove large numbers of people apprehended at the border. Consequently, the Border Patrol’s data shows that one-third of apprehensions were of people already apprehended and removed earlier in the year. There were only 1.1 million unique encounters in 2021.16 Even using the full 1.7 million figure, it equates to only 7 apprehensions per month per agent. The result is a large and powerful border force with relatively little immigration-related work to do. Consequently, the agents have time to get involved in many other things that have nothing to do with the immigration enforcement mission of the agency. The implications of a heavily militarized border force that can operate in large swaths of the United States is considered in the final section of this book.
The Supreme Court’s decisions in these Border Patrol cases, which legalized racial profiling and carved out exceptions to constitutional protections against unreasonable searches and seizures, deserve further scrutiny. Although they occurred over forty years ago, they continue to affect the lives of hundreds of millions of Americans and countless more migrants to the United States. Despite their significant and far-reaching implications, the Border Patrol decisions of the 1970s are almost unknown outside law enforcement, legal, and academic circles.
This book brings these cases to light and argues that two of those decisions, United States v. Brignoni-Ponce in 1975 and United States v. Martinez-Fuerte in 1976, which legalized racial profiling for the Border Patrol, should be seen in the same light as some of the most notorious racist decisions in the history of the Supreme Court, such as Dred Scott v. Sandford, Plessy v. Ferguson, and Korematsu v. United States. As Justice William Brennan wrote in his dissent in Martinez-Fuerte, the Supreme Court’s Border Patrol decisions amounted to an “evisceration” of the reasonableness requirement in the Fourth Amendment, allowing agents “to stop any or all motorists without explanation or excuse” and “target motorists of Mexican appearance.” However, among those symbols of America’s racist past, Brignoni-Ponce and Martinez-Fuerte stand alone because they are still put into practice by the Border Patrol every day. The “anything goes” origins of the Border Patrol, combined with the Supreme Court’s approval of racial profiling and warrantless stops, have made the Border Patrol the most dangerous police force in the United States. This is the story of how it happened.