Illegal Immigrants and the Fourth Amendment

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Yesterday, in United States v. Portillo-Munoz, the Fifth Circuit held that illegal immigrants do not have Second Amendment rights. The defendant in the case was charged with being an illegal alien in possession of a firearm, in violation of 18 U.S.C. § 922(g)(5). He argued that the statute was unconstitutional, but the court concluded that “[w]hatever else the term means or includes, the phrase ‘the people’ in the Second Amendment of the Constitution does not include aliens illegally in the United States.” It reasoned that “[i]llegal aliens are not ‘law-abiding citizens’ or ‘members of the political community,’ [terms previously used by the Supreme Court in describing the Second Amendment’s reach] and aliens who enter or remain in this country illegally and without authorization are not Americans as that word is commonly understood.”

That holding is significant in its own right, but the court’s discussion of the Fourth Amendment is potentially even more consequential. The defendant argued that the Fourth Amendment protects illegal immigrants, and that the Second Amendment should therefore extend to that group as well. The court responded in two ways. First, it stated that the scope of the Fourth Amendment, which it characterized as a “protective right against abuses by the government,” may be broader than the scope of the Second Amendment, which it described as providing an “affirmative right to keep and bear arms.” Second, and more importantly for present purposes, it expressed doubt about the premise, stating that “neither this court nor the Supreme Court has held that the Fourth Amendment extends to a native and citizen of another nation who entered and remained in the United States illegally.”

I assume that the court is correct about its own precedents, though a quick look at Martinez-Aguero v. Gonzalez, 459 F.3d 618 (5th Cir. 2006), makes me wonder — that case seems to say that illegal aliens are covered by the Fourth Amendment. It is certainly correct about the Supreme Court’s rulings. The Court assumed, but did not decide, that the Fourth Amendment protects illegal aliens in INS v. Lopez-Mendoza, 468 U.S. 1032 (1984). And in United States v. Verdugo-Urquidez, 494 U.S. 259 (1990), the Court emphasized the limited reach of Lopez-Mendoza and again declined to address the applicability of the Fourth Amendment to illegal aliens.

I could find surprisingly little law on this issue elsewhere. I don’t believe that any other federal circuit courts have squarely addressed it, though in United States v. Quintana, 623 F.3d 1237 (8th Cir. 2010), the court stated, somewhat in passing, that “the Fourth Amendment applies to arrests of illegal aliens.” I also don’t think that any North Carolina appellate case is on point. There are a few federal district court opinions on the issue. A good collection of authority is contained in United States v. Gutierrez-Casada, 553 F.Supp.2d 1259 (D. Kan. 2008) (concluding that “a previously deported, aggravated felonious illegal alien” lacks Fourth Amendment rights, but reserving judgment on whether other illegal aliens are protected). There are also a number of secondary sources, such as law review articles, that address this issue. They’re easy to find on Westlaw or Lexis.

With approximately 10 million illegal aliens in the United States, it amazes me that this issue isn’t more frequently litigated, and hasn’t been conclusively resolved. If you have insight into why this is so, please chime in.

14 comments on “Illegal Immigrants and the Fourth Amendment

  1. The problem with the illegal immigrants are affecting all of us, even my family had endured severe trauma due to actions taken by an illegal immigrant. in Aug 2006 my grand daughter and I were in our front yard at our home, and suddenly a blue car pulls up, and stops in front of our house, and a Mexican ran out of the car, with a machine gun, and opened fire upon us, I managed to get my grand daughter inside our house, but then I was left out in the open. The gunman was a terrible shot, he missed me entirely. In a few minutes the police arrived, and counted 16 empty bullet casings around where I had been standing. We found out later that the illegal immigrant was a member of the MS13 gang, and he was supposed to kill an American to become a member of the gang. He was caught, and put to jail, but they released him 30 days later, and then we heard from the police that he went on to GA, and killed a man in his front yard. None of my family was injured, but my nerves got so bad that I could not speak for 4 month. The damage to my property was huge, he had totaled my car, and damaged my house terribly.

    • Totally a lie. Maybe you will find more racists ignorant people like you here, but as for me give me liberty or give me death! do you know at least who said that during the American Revolution? If you do not know google it! by the way next time you want to be more realistic in your stories try harder someone might believe you. cheers.

      • Wow, how would you know if it did or did not happen? I believe him. You are disrespectful and obviously an immagrant yourself. The truth is, if you are here illegally then the word illegal means you broke the law. Plain and simple. It just needs to enforced. The way I see it, if a black or white American had done this they would still be in prison. This is what angers me. How do they have more rights then us? Thus guy committed attempted manslaughter. That is a crime punishable by many years in jail. The question that should be asked is why did he get released??? There is not recourse for us action so why not commit the crime? Wow, God help us!

    • This was not an illegal immigrant problem. I work in the so called “Hood”, and witness the same thing happening and the shooters are American blacks and American whites. So don’t be so quick to place criminal acts under the illegal immigrant category.

      • Sure it is. This guy committed a terrible crime. One that cause mental harm to a young girl and a men that will affect them forever! Why did this illegal immagrant get released? Ask yourself that. Again if it were a black or white American they would still be in jail. Doesn’t that scare you? Why is everyone so blind to this? If there is no punishment for your crime then why not commit it especially if you want into a gang.

  2. This story sounds unbelievable ( untrue ) So this unnamed Mexican pulls right in front of your house, runs right at you and your grand daughter, armed with an automatic weapon, fires 16 rounds, but amazingly no one is even hit. WOW.
    Since you say he only served 30 days, then goes to GA. and kills a man in his front yard, his name should be readily available. I searched and can’t find anything even close. Hope you will print his name. Sorry you could not speak, had a totaled car,bad nerves, house damage, and huge property loss. But hey, I saw something like this in the movie “Pulp Fiction” Now I’m going to walk the earth like the guy from “Kung Fu”

  3. This is what you call RACIST. The comment on top is a big lie. Someone who is just trying to be a racist asshole. I am hispanic, yes I am , I do not support illegal immigration, I was born in the Dominican Rep and raised in the US. I am educated and achieved my master degree in Immigration. Not everyone is the same. We are all immigrant and on top of that humans.

    • Wow! An what an impressive (expensive) education (indoctrination) you have there. Congratulations!

  4. Did anybody said racist? Wow I am an American and the US Constitution states that everyone living in the United States of America is granted specific rights. My parents are Mexicans and I am currently studying chemistry in order to become a teacher. I am in favor of people who want to make a better life of them selves just like our founder fathers did or did they came here legally? I am sure native americans can answer that question.

  5. Well, I for one is for Immigration Reform. I welcome the new arrivals of our neighbors to the south and hope they do make their lives better and more rewarding here. Everyone is entitled to an American Dream if they’re willing to work for it. The press recently has focused on the misfits of immigration such as the MS-13 gangs and those of East LA, but ignore those atrocities by the outlaw biker gangs, self established militias, and para-military survival groups that call themselves protectors of citizen rights. They use these negative propaganda’s and embellished story telling such as the one posted at the top to incite and justify the “illegal Alien” push to create a south wall of separation and isolation much like the iron curtain of Russian in the 1950’s thru the Reagan years. They blame America’s economic fall on the immigrant influx saying they get free health care, housing, assistance, and go to school free. How can that be?? 70% of all welfare, and state assistance programs are absorbed by American Citizens. I happen to be Mexican, and a police officer. I have a degree and I’m an American Citizen that came here from Mexico.

  6. Illegal aliens are not Americans and do not have any rights under any amendments of our constitution. (IMHO) If you think that is a racist view, try going to Mexico illegally and arguing that you have protection under their constitution.

  7. Wait and see what Trump has up his sleeve. He has already threatened all the major cities who are considered sanctuary cities to give up these individuals with the threat of holding back federal dollars. You would think that this country as great as it is with the talented and educated population that live here can not find a way to help these individuals gain their citizenship if they truly want to live here. Instead, being adversarial and punitive is the soup of the day.

  8. It is common knowledge that the 4th Amendment covers everyone including illegal’s in regards to unlawful search and seizure however those who have violated the law basically gives up certain rights. That being said anyone who enters this illegally has broken the law ” U.S. Code › Title 8 › Chapter 12 › Subchapter II › Part VIII › § 1325
    Improper entry by alien “. The 4th Amendment still applies until their status is verified.
    States that issues drivers licenses to known illegal’s in my opinion are guilty of aiding and abetting criminals. Who knows how many illegal’s are driving without any form of ID ,when stopped and can not produce a valid ID they in turn forgo their 4th Amendment right.

    • Well said. Cherry picking laws to enforce is what is causing most of these problems.

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