Good Cop, Bad Cop: Detention and Its Discontents

Are We Being Fair to the Border Patrol?

by Jill Holslin

SAN DIEGO-TIJUANA | On Thursday, Sept 18, 2008 Border Meetup Director Dan Watman was detained by the Border Patrol in Friendship Park, a small concrete plaza and public park located along the border fence in Border Field State Park, San Diego County, California, the site where the U.S.-Mexico border fence descends into Pacific Ocean. Watman was conducting a press conference in preparation for a two-day binational event co-sponsored by Border Meetup and San Diego Coastkeeper and the Mexican environmental organization Proyecto Fronterizo de Educación del Medio Ambiente, and scheduled for the following weekend, Sept 20-21. The event included a beach clean up, kite flying festival, cross-border yoga and meditation at Playas de Tijuana and Border Field State Park. His crime? One of the five Mexican journalists who joined Watman at the border fence for the press conference passed Dan his business card through the fence. According to the CBP, the passage of unregulated goods through the border fence constitutes a customs violation. Yet, if Dan Watman’s actions truly constituted a crime, why was he not arrested? While it is easy to read this situation through the familiar narrative of the innocent man victimized by an abuse of state power, are we being fair to the border patrol when we portray them as “bad cop?”

Well, it turns out that federal laws governing what can and cannot be done at the border fence are not entirely clear. Indeed, as anyone knows who has tried to cross back across the border into the U.S. with an unregulated American granny smith apple in their backpack, the passage of unregulated goods from Mexico to the U.S. is expressly forbidden. Yet, many other activities at the border fence can subject the innocent wayfarer to arbitrary and random questioning, harassment and detention.

When Dan Watman reached out and took the journalist’s business card that had been slipped though an opening in the border fence that day, the border patrol agent on the scene was prompted to enforce this policy forbidding unregulated goods. As Watman noted in an official statement, the agent asked to see what had been passed through the fence, and Watman complied, showing him the business card. The agent then asked Dan to step away from the fence. Dan asked why he needed to do that: as far as he understood, it was not illegal to talk to people at the fence. Then Watman explained further that he was conducting a press conference and thus needed to remain within conversational distance with the journalists gathered on the other side. At this point, the situation escalated as the border patrol agent threatened Watman with arrest if he refused again to step away from the fence. In an effort to clarify the law, Dan pointed to the contradictory situation in progress: “I told him that he could arrest me right where I was for passing something through the fence. And so, why, if I stepped away from the fence, would I no longer be arrested?” The agent then asked Watman to place his hands on his head and remain silent, and Watman was then detained while three additional border patrol vehicles and 8-10 agents arrived on the scene. When Watman asked again why he was being ordered to step away from the fence, one of the agents acknowledged that Watman had done nothing illegal in gathering with a group at the fence: “You are right. You have a right to be here. You just can’t pass things through the fence.” After 20 minutes, the agents left and Dan Watman, undaunted, continued on with his press conference.

What Dan Watman’s brief detention, and many others like it illustrate, is that enforcement at the border fence can be random and arbitrary, raising questions about the shaky legal foundations of our basic civil rights in border spaces. In an effort to clarify the law regarding gatherings at Friendship Park, I recently spoke to Mark Endicott, Public Affairs liaison for the San Diego Sector of U.S. Customs and Border Protection. When I asked him if there was an explicit policy preventing people from standing next to the border fence and chatting with people in Playas de Tijuana, Mexico, Endicott affirmed that as a public park, the purpose of Friendship Park was to allow people to gather and enjoy themselves, and there was no policy preventing that. Endicott added that he had heard of no instances of agents telling people to stand away from the fence.

Yet, such instances are commonplace in Border Field State Park. I myself have been interrupted mid-conversation and asked to step away from the fence on at least three different occasions in the past several months by border patrol agents who then explained to me that it was easier to do their job if I wasn’t talking to people through the fence. According to Christian Ramirez, National Coordinator of Project VOICE, the American Friends Service Committee immigrant rights initiative, there has recently been a significant number of complaints about random detentions in this area, specifically, from the ranches out near Border Field State Park. And so, this left me wondering once again, what exactly is the law in this case?

The answer to this riddle is a little troubling for anyone concerned with civil rights in the United States. Mark Endicott cited a little-known statute passed in 1996, called the Immigration and Nationality Act, Section 287, recently named a “Constitution Free Zone” by the ACLU. Under this act, immigration officers have the authority to stop, question, detain and search anyone within 100 miles of any U.S. border—without a warrant. When I asked him what might warrant such questioning, Endicott insisted that agents must act upon “probable cause” before conducting a search. Yet, Endicott didn’t offer specific instances of probable cause, suggesting instead that “consent” might authorize questioning and detention.

It seems to me that we are asking too much of our border patrol agents, already under tremendous pressure and facing daily assault in dangerous sectors of the border fence, to simply use their own judgment to enforce border security. In the absence of clear policies from the federal government, border patrol agents are being asked to play “bad cop” while the Department of Homeland Security earns high praise for sealing the border with a costly and ineffective border fence.

Christian Ramirez affirmed to me that indeed, there has been a shift in the past three years of the Bush Administration. In the past, Border Patrol was always willing to meet with the community. Back when AFSC was contesting the transit checks on the trolley, there was room for negotiation. But, says Ramirez, Border Patrol is not interested in having a dialogue now. Ramirez cites Chertoff’s waiver of laws as the reason for this shift. “As soon as Chertoff started to use his powers to waive all laws because he didn’t want to delay this fence project, that’s when Border Patrol really started to change.”

According to Ramirez, this shift is a strong indication that DHS is asking Border Patrol to do something that is nearly impossible. The waiver of laws, combined with vague and ambiguous border enforcement mechanisms leave border patrol agents in a difficult position. They are charged with the task of enforcing border security: “to detect, apprehend and deter illegal entry.” Yet, in the absence of clear laws and policies, it is difficult if not impossible to accomplish this goal effectively.


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