MEMORANDUM & ORDER
Diana Saldaña, United States District Judge.
Defendant NICANOR MARQUEZ stands charged by criminal information on one misdemeanor count of forcibly resisting or impeding a federal law enforcement officer under Title 18, United States Code, Section 111(a)(1). (Dkt. 8.) This charge stems from an incident that occurred on June 25, 2015 at the U.S. Border Patrol checkpoint located north of Laredo, Texas on Interstate Highway 35. The incident began when Defendant drove up to one of the checkpoint's primary inspection lanes. To summarize the acts said to give rise to criminal responsibility, Defendant refused to answer immigration-related questions and disobeyed an agent's directive to move his truck to a secondary inspection area.
Before the Court now is Defendant's pretrial motion to dismiss the criminal information (Dkt. 20) brought pursuant to Rule 12(b)(1) of the Federal Rules of Criminal Procedure, which allows a defendant to raise by pretrial motion any defense that can be determined without a trial on the merits. A trial on the merits would indeed appear to be unnecessary here because the defense at issue implicates a pure question of law in the presence of undisputed facts. § United States v. Flores, 404 F.3d 320, 323-25 (5th Cir. 2005). The main thrust of the pending motion is that none of Defendant's acts were committed with the required statutory element of "force." The defense takes the position that the Fifth Circuit has yet to define the term "forcibly" for purposes of section 111. (See Dkt. 20 at 7.) In the absence of a binding articulation of the term, Defendant proposes that the Court interpret "forcibly" or "force" to mean something more than is meant in a "physics or engineering sense," a position the Fifth Circuit has approved at least in the context of sentencing. (See id. at 11-12.) Were the Court to adopt this proposed definition, it seems clear that Defendant's undisputed conduct — which will be articulated more fully below — would not constitute an offense. In the alternative, Defendant argues that if the meaning of "force" is expansive enough to criminalize his conduct, then section 111 is unconstitutionally overbroad and vague under the First and Fifth Amendments. (Id. at 1, 16-19.)
Having considered the parties' arguments and the applicable law, the Court agrees with the defense that the meaning of the term forcibly for purposes of section 111 remains open to debate in this circuit. The Court is also in agreement with the defense insofar as they are of the opinion that Defendant's conduct did not satisfy the element of force required by section 111. At the same time, the Court finds the Government's views on Williams and Gagnon to be unfounded. As such, Defendant's motion to dismiss the misdemeanor charge against him will be granted. Any constitutional rulings are therefore unnecessary.
To outline its ensuing discourse, the Court will begin with a review of the facts — facts which would appear to be undisputed, at least in all essential respects. Following that is a discussion of the general legal standards that govern criminal liability under section 111. The Court will then examine the Government's arguments regarding Williams and Gagnon and explain why they fail to control an outcome here. Lastly, with an eye towards the arguments by the defense, is the Court's discussion as to the statutory definition of "forcibly" or "force."
For all practical purposes, the following facts are uncontested except where specifically stated otherwise. Indeed, most of these matters are beyond dispute given that multiple video recordings were taken of the encounter. It is notable that two of these recordings were taken by Defendant himself using a cellphone camera. Initially, the cellphone was positioned on the dashboard of the vehicle with the camera lens directed at Defendant and the driver-side window. A separate video was shot by a Border Patrol agent.
The cellphone video begins about one minute in advance of the incident as Defendant and a passenger in his pickup truck, later identified as an Enrique Benavides, are driving up to the checkpoint. Music from the truck's stereo system is playing in the background, and Defendant and Benavides can be heard bantering. Pulling up to the booth at a primary lane, Defendant rolls down the front, driver-side window and is greeted by a Border Patrol agent — identified as Agent Ronald Burgos — with, "How are you doing?" Defendant returns the greeting, and Agent Burgos begins his immigration inspection of Defendant and Benavides.
At this point, Defendant reaches down with his right arm, and the cellphone video then appears to physically shake. The parties agree that Defendant shifted the transmission of his truck into the "park" position. Agent Burgos then makes his way out of camera shot and back to his booth.
After a few seconds, an agent, likely Agent Burgos, directs a mostly inaudible question to Defendant. Defendant voices his annoyance with the situation and responds, "I just want to be free — on my way. I don't understand why we have to stop. Did I just cross an international border or something?" The verbal exchange between Agent Burgos and Defendant continues. But because it is difficult to make out what Agent Burgos says for the next portion of the video, only Defendant's statements will be recounted.
Agent Burgos can then faintly be heard saying something to the effect of, "Okay, well, I just need you to get your car out of my way so I can continue doing immigration inspections." Benavides interjects with, "No, sir, we're not stopping at secondary. We need to get home." While still somewhat difficult to make out, the substance of Agent Burgos' response is, "I can move the car for you, if you want." Defendant says, "You will not do that. You will not do that." There is at this point a break in Agent Burgos' exchange with Defendant and Benavides.
Defendant reaches over towards the camera, and this is where the initial recording ends. Defendant then resumes recording with his cellphone in hand. The camera is trained on a Border Patrol agent who is recording the encounter with his own handheld camera. Defendant says, "I got cameras too, sir." A supervisory Border Patrol agent, Agent Richard Zelner, approaches the truck, introduces himself as a supervisor, and informs Defendant and Benavides, "If y'all state your citizenship, you'll be on your way." As the defense concedes, Benavides responds by stating that he is a U.S. citizen. Agent Zelner then addresses Defendant directly.
Defendant was later charged with a misdemeanor under section 111(a)(1). The criminal information alleges that Defendant "did knowingly and intentionally, forcibly resist, oppose, impede, intimidate, and interfere with a U.S. Border Patrol Agent, while said Agent was engaged in and on account of the performance of the Agent's official duties." (Dkt. 8.) A trial date was set but postponed upon the filing of Defendant's motion to dismiss the charge.
The Court will now discuss the general legal standards applicable to section 111, followed by the Government's arguments, before moving on to the term "forcibly" and Defendant's lack of criminal responsibility.
A. Legal standard
In exploring the legislative history of section 111, the Supreme Court has recognized that Congress' purpose behind the statute was to "protect both federal officers and federal functions." United States v. Feola, 420 U.S. 671, 679, 95 S.Ct. 1255, 43 L.Ed.2d 541 (1975). It is schematically inherent that "furtherance of the one policy advances the other." Id. As these reflections have been framed by the Fifth Circuit, "the dual purpose of the statute... is not simply to protect federal officers by punishing assault, but also to `deter interference with federal law enforcement activities' and ensure the integrity of federal operations by punishing obstruction and other forms of resistance." United States v. Williams, 602 F.3d 313, 317-18 (5th Cir. 2010) (quoting Feola, 420 U.S. at 678, 95 S.Ct. 1255).
Turning to the statute itself, section 111 fashions multiple offenses — a misdemeanor under subsection (a)(1), a felony also under subsection (a)(1), and another felony under subsection (b) — based on the severity of the proscribed conduct. See Williams, 602 F.3d at 316; see also United States v. Ramirez, 233 F.3d 318, 320-21 (5th Cir. 2000), overruling on other grounds recognized by United States v. Longoria, 298 F.3d 367, 372 n.6 (5th Cir. 2002) (en banc) (per curiam). Although Defendant has been charged here with a misdemeanor under subsection (a)(1), the nature of the parties' legal dispute calls for an exposition of that subsection's felony offense as well. The relevant portions of the text are as follows:
First, of course, we have the meaning of the adverb "forcibly." But this is a matter that will be reserved for later. For now, suffice it to say that the Fifth Circuit has interpreted "forcibly" to modify not just assault but all of the acts rendered unlawful by section 111(a)(1). United States v. Hazlewood, 526 F.3d 862, 865 (5th Cir. 2008).
Another undefined term of art is that of "simple assault," which comes into play for purposes of the subsection (a)(1) misdemeanor charge. The meaning of "simple assault" converges with the term's usage at common law and has thus been defined as an attempted or threatened battery. Ramirez, 233 F.3d at 321-22. In other words, physical contact is not required for a simple assault under the statute. See id. at 322.
The term "simple assault" becomes doubly relevant because it implicates a textual ambiguity that several circuits courts have struggled to interpret. This is how the ambiguity was framed by the Fifth Circuit in Williams:
Williams, 602 F.3d at 316. Ultimately, the Fifth Circuit adopted Sixth Circuit precedent, Gagnon, to hold that a misdemeanor conviction for any of the non-assaultive acts listed under section 111(a)(1) does not require underlying assaultive conduct. Id. at 317-18. The reasoning behind what can be referred to as the "Williams rule" will be discussed in the following section, which addresses the Government's arguments.
B. The Government's arguments
According to the Government, Defendant "forcibly resisted"
In Williams, the defendant was arrested over an altercation with three military police officers. See Williams, 602 F.3d at 314. The officers approached the defendant as part of their investigation into an indecent-exposure complaint against her. Id. The defendant soon became upset and stated that she would not be arrested or go to
On appeal, the defendant argued that criminal liability under section 111(a)(1) requires conduct amounting to an assault and that there was insufficient evidence to support such a finding. See id. at 315-16. Although not explicitly stated in the Williams opinion, the latter position was presumably based on the officers' concessions that the defendant did not specifically intend to strike them. Upon framing section 111(a)(1)'s textual ambiguities, the Fifth Circuit turned to what they recognized as a circuit split. See id.
The Williams court began with the position taken by the Ninth Circuit in United States v. Chapman, 528 F.3d 1215 (9th Cir. 2008).
Williams, 602 F.3d at 316-17 (internal citations modified and footnote and emphasis omitted). The Fifth Circuit then went on to discuss the opposing view as espoused by the Sixth Circuit in United States v. Gagnon, 553 F.3d 1021 (6th Cir. 2009).
Williams, 602 F.3d at 317 (internal citations modified).
As mentioned, the Fifth Circuit ultimately sided with the Sixth Circuit and thus adopted the rule that a misdemeanor conviction under section 111(a)(1) does not require assaultive conduct. Williams, 602 F.3d at 318. Its reasoning went as follows:
Williams, 602 F.3d at 317. The Williams court found additional support for the Sixth Circuit's reading based on the dual purpose of the statute, which, as mentioned, is to protect officers by punishing assault and to ensure the integrity of their operations by punishing obstruction and other forms of resistance. Id. at 317-18 (citing Feola, 420 U.S. at 678, 95 S.Ct. 1255). Noting that the defendant had admitted to swinging her arms for the purpose of resisting the officers' attempts to handcuff her, the Fifth Circuit applied its new rule to affirm her conviction. Id. at 318.
In the present case, the Government is of the opinion that Williams and Gagnon are determinative of what "force" means for purposes of section 111. The Government alludes to these authorities in representing that "while there is a circuit split relating to what `forcible' means, the [Fifth] Circuit has adopted the [Sixth] Circuit's interpretation." (See Dkt. 23 at 1.) It notes with further reference to Williams and Gagnon that "the `forcible' element of [section] 111 is not meant to require actual contact ..., nor is the `force' required to rise to the level of `assaultive' conduct." (Id. at 3.) Quoting Gagnon, the Government further offers that "what is required is `forcible performance of any of the six proscribed act[ion]s in [section] 111(a) without the intent to cause physical contact or [to] commit a serious felony.'" (Id. at 3-4 (quoting Gagnon, 553 F.3d at 1027).) And it goes on to propose that the statute is violated "if the defendant commits an `affirmative act' when he intends to impede, oppose or resist and he is likely to succeed in impeding[,] resisting[,] or opposing." (Dkt. 23 at 4.) Taking these principles into account, it is the Government's conclusion that Defendant violated section 111(a)(1) through the combination of his aforementioned acts and omissions. (See Dkt. 19 at 15-18.)
To reach its conclusion, however, the Government circumvents the primary question raised by the defense. True, the Williams rule says that assaultive conduct
As such, because Williams and Gagnon do not specifically address what constitutes force under section 111, these cases fail to determine an outcome for the present case.
C. The term "forcibly" and Defendant's criminal responsibility
Left for the Court now is the following issue: whether Defendant's acts and omissions are sufficient in their totality to meet section 111's statutory "force" requirement. The defense advocates here for a definition of "forcibly" or "force" that would effectively preclude Defendant's criminal responsibility. According to the defense —
(Dkt. 20 at 11-12 (citations modified).)
What follows is a review of multiple legal authorities addressing the meaning of force in different legal contexts and from various jurisdictions. While no one of these authorities is dispositive, they are nonetheless
1. Authorities addressing "force"
This review will begin with one of the primary authorities relied on by the defense, Flores v. Ashcroft, 350 F.3d 666 (7th Cir. 2003), a Seventh Circuit case. In Flores, the Board of Immigration Appeals ordered the appellant removed from the country based on its determination that he had committed what qualified as a "crime of violence," defined in relevant part by 18 U.S.C. § 16(a) as an offense having as an element the use of physical force against the person or property of another. Flores, 350 F.3d at 668-69. The issue on appeal concerned whether the appellant's prior Indiana conviction for misdemeanor battery had as an element the requisite use of force. Id. at 668-69, 672. The appellant observed that the slightest contact — even touching someone's glasses or indirect contact by a thrown paper airplane — qualified as a battery in Indiana. Id. at 669-70. The court agreed that "[i]t was hard to describe any of this as `violence.'" Id. at 670. The reasons for its conclusion are quite astute and worth laying out in full:
Flores, 350 F.3d at 672. The appellant's removal was thus vacated. Id.
In short, the Seventh Circuit defined force essentially as "violent force," or force capable of causing bodily injury. This is consistent with the definition arrived at more recently by the Supreme Court in Johnson v. United States, 559 U.S. 133, 130 S.Ct. 1265, 176 L.Ed.2d 1 (2010). The issue in Johnson concerned whether the defendant's prior Florida conviction for simple battery had "as an element the use ... of physical force against the person of another" so as to constitute a "violent felony" under 18 U.S.C. § 924(e)(1), the enhanced penalty provision of the Armed Career Criminal Act. See Johnson, 559 U.S. at 136-37, 130 S.Ct. 1265. In defining force, the Supreme Court eschewed its specialized meaning in the field of physics, "a cause of the acceleration of mass," and instead gave the term "its ordinary meaning." See id. at 138-39, 130 S.Ct. 1265.
Id. at 139, 130 S.Ct. 1265. "All of these definitions," the Supreme Court opined, "suggest a degree of power that would not be satisfied by the merest touching." Id. Ultimately, upon recognizing that "context determines meaning," id. at 139, 130 S.Ct. 1265 (citing Jarecki v. G.D. Searle & Co., 367 U.S. 303, 307, 81 S.Ct. 1579, 6 L.Ed.2d 859 (1961)), it held with a nod to Flores that "in the context of a statutory definition of `violent felony,' the phrase `physical force' means violent force — that is, force capable of causing physical pain or injury to another person," id. at 140, 130 S.Ct. 1265 (citing Flores, 350 F.3d at 672).
One obvious distinction between these cases and the one at hand is with the type of statutes at issue. Flores and Johnson defined force for purposes of categorical sentencing provisions, while section 111 serves to criminalize certain forcible conduct. Quite recently, however, one of our sister courts from the Western District of Texas, in a case styled Sophin v. United States, 153 F.Supp.3d 956 (W.D. Tex. 2015), saw fit to define section 111 force using its "ordinary meaning" as did the Johnson court. Sophin's facts parallel the facts here insofar as both cases involve an obstreperous motorist at a Border Patrol checkpoint who refused to answer an inspecting agent's citizenship-related questions. See id. at 959. The difference is that the Sophin defendant excused himself when the agent momentarily turned his back and drove away from the primary inspection area. See id. at 959-961. The defendant was arrested, charged with a misdemeanor under section 111, and found guilty of forcibly interfering with the agent's official duties upon a jury trial in the magistrate court. Id. at 958. After sentencing, the defendant appealed to the district court, challenging the sufficiency of the evidence to prove the element of his use of force. Id. at 959. His conviction was reversed. Adopting Johnson's ordinary-meaning analysis, the Sophin court reasoned that to define force in terms of something other than "power, violence, or
Id. (internal citations omitted). Based on this definition, the court held that a rational trier of fact could not have found that the defendant forcibly interfered with the agent. Id.
Despite the contextual similarities, the facts of Sophin are readily distinguishable from those of the instant case. Where the Sophin defendant drove past the inspecting agent and through the checkpoint, Defendant here blocked traffic at the primary inspection lane and refused directives to move his vehicle out of the way. Several courts have addressed the force question in examining conduct that is arguably more similar to this. First is an older case decided by the D.C. Circuit and also identified in the defense's brief, United States v. Cunningham, 509 F.2d 961 (D.C. Cir. 1975) (per curiam). The Cunningham court recognized that "not all failures to cooperate with federal agents are within [section 111's] prohibition, and that some measure of presently applied force is required." Id. at 963. "Whether a person has opposed the efforts of federal agents with sufficient force to engage the statute can thus be a troublesome question of degree." Id. Falling short, the D.C. Circuit presumed, "would be the mere refusal to unlock a door through which federal agents sought entrance." Id. (citing District of Columbia v. Little, 339 U.S. 1, 70 S.Ct. 468, 94 S.Ct. 599 (1950) (holding that the word "interfere" in a D.C. regulation criminalizing the "interfering with or preventing" of building inspections by health officers could not be interpreted "to encompass respondent's failure to unlock her door and her remonstrances on [Fourth Amendment] grounds")). Nevertheless, the force involved in the Cunningham case went far beyond the refusal to unlock a door. The defendant's conviction was upheld based upon the D.C. Circuit's observation that the defendant's "thrashing, kicking, biting, and attempting to exhort others [in a prison line-up] to violence [made] him a substantially more `forcible' resistor than those whose convictions under the statute [had] been upheld in a number of other cases." See id. at 963. Therefore, Cunningham's "locked door" hypothetical remains just that.
At the same time, the D.C. Circuit's reflections do provide some insight into the present issue, and its hypothetical guides our further inquiry. Indeed, the Cunningham hypothetical involved the refusal to remove a physical obstacle — i.e., a locked door — between law enforcement officers and the object of their official interest — i.e., the inside of a home. Similar" circumstances have been deemed sufficient by at least one other court to constitute force for purposes of a federal regulation identical in all essential respects to section 111. The Court refers here to the Third Circuit's decision in Lovgren v. Byrne, 787 F.2d 857 (3d Cir. 1986). In Lovgren, agents of the
The dock owner was eventually charged in part with violating an administrative regulation that made it unlawful to "[f]orcibly assault, resist, oppose, impede, intimidate, or interfere with any Authorized Officer in the conduct of any inspection or search [authorized by the Magnuson Fishery Conservation and Management Act, 16 U.S.C. § 1801 et seq. and its regulations]." 50 C.F.R. § 651.7(m). The lower courts found that the dock owner had "forcibly interfered" in light of the agents' uncontested testimony, see Lovgren, 787 F.2d at 860, 867, resulting in the imposition of multiple civil penalties, id. at 860. On appeal, the dock owner challenged the sufficiency of the evidence on the basis that no actual physical confrontation took place. Id. at 862. The Third Circuit rejected the argument:
Id. The Lovgren court thus affirmed, holding that the dock owner's "lack of cooperation contained elements of forceful resistance," and that such a lack of cooperation was sufficient to support the finding of a regulatory violation.
The Court ends its discussion of Lovgren by attempting to reconcile the case with the Cunningham hypothetical. Both involve situations where a person
Cunningham and Lovgren come to bear in this case given the Government's argument that Defendant's forcible conduct involved maintaining a physical barrier, his truck, in the primary inspection lane. (See Dkt. 19 at 15-18; see also Dkt. 23 at 2, 5-6.) But this conduct can also be characterized as Defendant's failure to follow the agents' directives to move his vehicle, a circumstance which recalls a Fifth Circuit case styled United States v. Hightower, 512 F.2d 60 (5th Cir. 1975). In Hightower, the Fifth Circuit held that there was insufficient evidence of the use of force within the meaning of section 111 where the defendant refused to hand over his hunting rifle to a federal wildlife agent and "expressed unwillingness to go to the local law enforcement office." Id. at 61. The takeaway from Hightower is abundantly clear: the mere refusal to follow a law enforcement officer's directive does not satisfy section 111's element of force. Indeed, like Cunningham, this holding can also be squared with Lovgren's "lack of cooperation" on the basis that the evidence in Hightower made no reference to the defendant's threatening manner or aggressive posturing.
Stepping back, cases like Flores, Johnson, and Sophin, on one hand, and Cunningham, on the other, present somewhat of a dichotomy. The former cases approach force qualitatively, speaking of the force required as violent in nature. See Flores, 350 F.3d at 672 ("This is not a quantitative line (`how many newtons makes a touching violent?') but a qualitative one."). Cunningham, however, tends to equate a defendant's general obstreperousness with force and then quantify it, speaking of force in terms of "measure" and "degree." See Cunningham, 509 F.2d at 963. Lovgren and Hightower are essentially neutral in their approach, as the courts there simply looked to the respective defendant's conduct and made a determination one way or the other. Along with this recognition comes the prospect of deciding which of these systems to apply in the final analysis. Regardless, making a definitive choice becomes unnecessary because as will be demonstrated next, an analysis under either of these systems yields the same result.
Again, the Government submits that the element of force required by section 111 constellated here when Defendant (1) placed his truck in "park," (2) refused to move the truck from the primary inspection lane to a secondary inspection lane, and (3) refused to state his citizenship. (See Dkt. 19 at 15-18; see also Dkt. 23 at 2, 5-6.) For purposes of analysis, the respective act and omission referenced in (1) and (2) can be logically grouped together and abstracted — similar to the Cunningham hypothetical and the Lovgren and Hightower situations — as the refusal to follow a directive to remove an obstacle — i.e., the truck — between the agents and the object of their official interest — i.e., the other vehicles making their way to the primary inspection lane. To be sure, the agents also had an interest in determining Defendant's citizenship status. But the Government concedes that charges here would not have been justified had Defendant immediately moved to secondary for further questioning. (See Dkt. 19 at 17; see also Dkt. 23 at
Clearly, to define force as do the Flores, Johnson, and Sophin courts, that is, as violent force, means that Defendant's acts and omissions were non-criminal. This is a defense argument the Government ignores but would surely concede. As discussed, passive resistance — or what amounts to the kind of resistance that Defendant exhibited here — does not generally fit the meaning of force for purposes of the qualitative system of analysis. The same can be said under the Hightower case and its neutral mode of analysis.
The analysis under the quantitative system articulated in Cunningham, however, is relatively more complex. Assuming arguendo that Defendant's obstreperous conduct constitutes force, one way to frame the issue under Cunningham is: whether such force is of a sufficient degree so as to "engage" section 111. See Cunningham, 509 F.2d at 963. Several of the cases discussed in this memorandum provide useful points of comparison — for instance, Williams and Gagnon. As already recognized, the force involved in those cases was pronounced; both involved defendants who physically struggled with arresting officers. In contrast, Defendant here merely refused to follow the agents' commands to relocate his vehicle, which, again, would be insufficient under Hightower. Moreover, when the agents actually attempted to carry out the arrest and move the vehicle themselves, Defendant readily yielded. Indeed, in this latter respect, the force involved here may be of a lesser degree than even our "physical barrier" cases on the opposite end of the force spectrum. Cunningham contemplates a refused entry into a home, and in Lovgren the agents apparently left the dock without conducting their intended fish inspection.
The Government would perhaps point to the prolonged period of time that Defendant blocked the primary inspection lane. But maybe the only reason that Defendant sat in the way of traffic as long as he did was due to the agents' good graces. The Court would harken here to the familiar case of United States v. Martinez-Fuerte, 428 U.S. 543, 96 S.Ct. 3074, 49 L.Ed.2d 1116 (1976), where the Supreme Court upheld the brief questioning of motorists at fixed checkpoints near the U.S./Mexico border for the purpose of ascertaining their immigration status. Martinez-Fuerte becomes relevant if only to highlight that its holding imposes no limits on Border Patrol's ability to deal with an obstreperous motor-vehicle operator who challenges their authority to conduct immigration-related questioning. In other words, Martinez-Fuerte did not require the agents to contend with Defendant for almost five minutes before attempting to extract him from his vehicle. To the extent the agents tolerated Defendant as long as they did here, their patience and tact was commendable. Whatever the case, once push could have come to shove, Defendant submitted to the agents' authority, and he allowed them to continue to engage in their operations.
For these reasons, the Government cannot establish, based on the undisputed facts, the requisite element of force for purposes of section 111. Maybe the result here would have been different had Defendant refused to let off the parking gear as agents tried to push his truck out of the inspection lane, or had he stiffened and pulled away as they tried to extract him from the vehicle. Such circumstances, however, are not before the Court now.
Accordingly, Defendant's motion to dismiss the criminal information against him (Dkt. 20) is hereby GRANTED.
In closing, the Court takes this opportunity to comment on Defendant's conduct and to assuage what are likely to be the Government's concerns with this opinion. From the context of Defendant's video recording, it seems that Defendant and his cohort, Benavides, viewed their encounter with Border Patrol as little more than a game. A quick search on YouTube reveals that it is crowded with videos of motorists refusing to answer citizenship questions at designated checkpoints. Defendant and Benavides likely intended to get in a few laughs and add just another post to the social-media pile. Conduct of this sort is, of course, cause for concern, and the Government likely takes the view that the instant decision knocks some of the teeth out of section 111's bite as a mechanism for enforcement, deterrence, and punishment.
The instant opinion does not, however, portend the proverbial fall of the sky. Holding up the firmament is Martinez-Fuerte. This case, along with other Supreme Court and Fifth Circuit precedent, would support Border Patrol agents' authority — an authority fully exercised here — to detain troublemakers like Defendant and Benavides for as long as it takes to ascertain their immigration status. While such long-standing authority is well-recognized by the legal community, it may not be as familiar to the general public. In for a surprise, therefore, are those motorists who refuse to answer citizenship-related questions for the claimed reason that they would rather "go on their way." Delay and inconvenience will only increase exponentially for those who then refuse to comply
True, there will always be a segment of society who wishes to challenge standing authority for some reason or another, be that out of conviction or mere gamesmanship. And the Government would perhaps be more hard-pressed in the face of an epidemic of motorists refusing to submit to secondary inspection. However, the Court has not been presented with any reason to believe that either conscientious objectors or game-players go so far as to disobey such directives on a regular basis. Moreover, the Court would again recognize that Defendant's detention at the primary inspection lane lasted as long as it did simply on account of the patience and tact displayed by the agents involved in the encounter. In any event, for the small minority who are inclined to conduct themselves in a forceful manner, section 111 will continue to serve its vital purpose. Otherwise, to the extent that passive resisters like Defendant are able to pass through a gap in federal law, that gap will have to be filled by statute or regulation.
IT IS SO ORDERED.
Lovgren, 787 F.2d at 867 (Fullam, J., dissenting in part).