Joan M. Markey
LIS 626
May 2, 2012
PATHFINDER
Question: A newspaper recently reported that a Texas ranch owner whose property is located
near the US-Mexican border dresses in military garb and caps with insignia resembling the US
Border Patrol, and intercepts what he perceives to be illegal immigrants, and imprisons them on
his ranch only to bring them directly back to the border and force them to cross it back to Mexico
at gun point. If true, his acts would violate what federal and state laws?
Audience: A practicing attorney who is going to represent the detained aliens in a civil action
against the ranch owner.
Research Plan
I. ISSUE: What federal and Texas statutes are violated by the ranch owner?
II. JURISDICTION: Federal law and Texas law.
III. KEY TERMS: false imprisonment; impersonation; vigilante; menacing; illegal alien;
criminal; crime; torts; immigration; citizen’s arrest
1
Because most of the prospective plaintiffs’ causes of action are common law torts, I shall begin
my research with Texas law and then looked at applicable federal statutes.
IV. RESOURCES:
a. Texas statutes
b. Texas administrative regulations
c. United States Code
d. Code of Federal Regulations
e. Cases
A. Texas statutes:
The prospective clients’ claims are civil actions for damages which will assert common
law claims. Nevertheless, the analogous criminal statutes and cases construing them may be
helpful, so I searched for them.
LEXIS
On Lexis, I searched in the Texas Code, Constitution, Court Rules & ALS combined for
false imprisonment. There were three results. One was the relevant portion of the state’s penal
code, TEX. CODE ANN. P ENAL 20.02 (2012), which sets forth the elements of the crime of
unlawful restraint. This section specifically states in pertinent part that “…(d) It is no offense to
detain or move another under this section when it is for the purpose of effecting a lawful arrest or
detaining an individual lawfully arrested.”
2
The other two results referred to TEX. CODE ANN. CRIM. PROC. ART. 13.12 (2012)
which sets forth the venue for criminal actions under this provision.
I next did a full text search for impersonat! in the Texas Code, Constitution, Court Rules
& ALS combined. There were 65 results. I limited my search to the table of contents, so as to
retrieve the actual statutes, if any. There were 4 results. Two of these, impersonating a medical
professional and impersonating someone on-line, are irrelevant. The others were:
TEX. CODE ANN. PENAL § 37.11 (2012): This Texas statute makes it a
third degree felony to impersonate a public official.
TEX CODE ANN. PENAL § 1702.3875 (2012): This Texas statute makes it a
Class A misdemeanor to impersonate a private security officer.
Thus, under Texas law, the rancher may have committed a
misdemeanor, even if the military caps and insignia he wore doesn’t
resemble those of the border patrol sufficiently to sustain a
criminal case for impersonating a public official.
I then searched for menacing and for menac! There were 27 results, but none were
relevant. Only two related to criminal acts: robbery and endangering a child. Since the facts do
not state that the rancher took any of the immigrants’ personal property, there is no robbery. If
any of the illegal immigrants he imprisons are children, then this statute may be relevant, as it
provides in pertinent part that “…c) A person commits an offense if he intentionally, knowingly,
3
recklessly, or with criminal negligence, by act or omission, engages in conduct that places a child
younger than 15 years in imminent danger of death, bodily injury, or physical or mental
impairment.”
I searched for illegal alien; there were no results.
I searched for citizen’s arrest. There were no results in the table of contents. I did a full
text search and got 12 results. One was the relevant statute, TEX. CODE ANN. CRIM. PROC. Art.
14.01 (2012), which provides that:
(a) A peace officer or any other person, may, without a warrant,
arrest an offender when the offense is committed in his presence
or within his view, if the offense is one classed as a felony
or as an offense against the public peace.
I searched for arrest. I got one result, i.e., TEX . CODE ANN. P ENAL 20.02 (2012) ,the
statute I had found previously.
WESTLAW
I repeated my search in Westlaw. I began by searching for “false impersonation” in the
Texas Code Annotated directory. I got 149 results. Since I wanted to find the actual statute at this
point, I switched to the Texas Code Unannotated Directory. I searched for “false imprisonment”
and got 5 results in the Texas Penal Code, Title 5, Chapter 20. They were
Section 20.01, which defines restraint;
Section 20.02, which defines the crime of unlawful restraint;
4
Section 20.03, which defines the crime of kidnapping, and
Section 20.04, which defines the crime of aggravated kidnapping
Next I searched for impersonat! There were 22 results, but only two were relevant, 18 TEX.
OCC. CODE ANN. Section 1702.3875 (Vernon 2003) impersonating a security officer and 20 .
CODE ANN. P ENAL Section 37.11 (12), impersonating a public servant.
I searched for menac! There were 21 results. Only one was relevant. That WAS TEX. CCP
CODE Ann. Art 11.21 (Vernon 2003), which provides:
The words "confined", "imprisoned", "in custody", "confinement",
"imprisonment", refer not only to the actual, corporeal and forcible detention
of a person, but likewise to any coercive measures by threats menaces or
the fear of injury, whereby one person exercises a control over the person of another, and
detains him within certain limits.
Next I searched for “illegal alien.” There were no results.
I searched for both “citizen’s arrest” and “citizens’ arrest.” There were no results for
either. I searched for arrest by itself and got 643 results. I edited my search and added the
term defense, since I was looking for statutory language defining when the principle of a
citizen’s arrest would be available as a defense. I got 52 results. I modified my search and
added the term restrain. I got one result, TEX. PENAL ANN. CODE ANN. Section 20.02
(Vernon 2003), which states that sets forth this doctrine as a defense to the crime of unlawful
restraint:
(d) It is no offense to detain or move another under this section
5
when it is for the purpose of effecting a lawful arrest or detaining
an individual lawfully arrested.
Note that I did not find the section of the Code of Criminal Procedure which I had found
on Lexis.
TEXAS ADMINISTRATIVE CODE
\
I searched within the Texas Administrative Code for ‘alien and “citizen’s arrest.”’ I got 0
hits. The “expanded results” had relevant legal encyclopedia articles, so I knew that my search
terms were valid. I searched for alien and vigilante and got 0 hits. I searched for alien and
unlawful restraint and got 0 hits. I then searched only for “unlawful restraint.” I got 4 hits but
none were relevant, e.g., a conviction for unlawful restraint as a disqualification for a nursing
license. I searched for citizen’s arrest and got 154 hits. Adding w/ s illegal alien got 0 hits.
I also searched for false imprisonment, false personation, border patrol, citizen’s arrest and
citizen arrest without success.
It was not possible to search for the Texas Administrative Code on Westlaw.
US CODE
Google
I did a Google search for 42 USC Section 1981 and 1983. I got about 12 MILLION
6
results. Of these over 477,000 were from Google Scholar. Adding “and alien” to the Google
Scholar search reduced the results to 15,000. Adding the word vigilante to my Google scholar
search resulted in 355 hits. A quick survey indicated that the first hits listed were mostly law
review articles, which only cited to the law by code.
I scrolled through the other results from Google, i.e, those that weren’t from Google
Scholar. One of my hits was from Wikipedia. It told me that 42 USC Section 1983 was initially
enacted as the Civil Rights Act of 1871 and was known as the Klu Klux Klan Act. It also gave
me a statute number. Wikipedia told me that Section 1983 was 17 Stat 13 (1871).
Lexis
On Lexis, I went to statutes at large. I put in the “Klu Klux Klan Act” and got no hits. I
tried it without the word Act and still got no hits. I put in Civil Rights Act of 1871 and got
nothing. I tried just Civil Rights Act and ended up with an alphabetical list of federal acts. I
clicked on Civil Rights Acts. The entries included the Civil Rights Act of 1866, 1957, 1960,
1964, 1968, and 1991, but none for 1871.
I put in 17 Stat 13. When I tried to click on the results, I got a message saying that this
was beyond my subscription. At that point, I gave up on Lexis for the time being.
Later, after I had searched other databases, I went back to Lexis. I went to Federal-Legal
and then narrowed a bit to United States Code Service. I searched for 42 USC Section 1983. I
7
got 797 hits. I clicked the first and got information saying that section 42 USC was formerly 8
USC Section 43. It was enacted in 1979 as 93 Stat 1284. It was “derived” from 17 Stat 13
(1871). This also gave me a Public Law number for the 1979 Act, PL 96-170. When I tried to
click on PL 96-170, to make sure it was the same provision, I again got a message saying this
was beyond my subscription.
Westlaw
On Westlaw, I clicked US Statutes at large. From the options, I chose US Stat at Large
1789-1972. I used natural language. I put in Klu Klux Klan Act. I got no results. I went to the
USCA Popular Name Table. I put in “Klu Klux Klan Act,” but got no results. I tried Civil Rights
Act and got too many results. I put the search in quotes and got 13 documents. I scrolled through
them and saw the Civil Rights Act of 1871, which it said was 17 Stat 13. I clicked on it and got
the right statute. It listed “amendments” to it, including PL 96-170, the same section which Lexis
had said the 42 USC 1983 was “derived” from. Westlaw also said the 1979 act was 93 Stat 1284.
The section was amended again in 1996 by PL 104-317, Title III, Section 309, 110 Stat 3853.
Bloomberg
In Bloomberg, under US Legis, I put in “Civil Rights Act of 1871” and got 62 results. I
put in “and alien” and got 6 results. Three of these were Congressional Research Reports directly
on point,e.g, “Enforcing Immigration Law: The Role of State and Local Law Enforcement.”
8
I went to the Statutes at Large Index. I searched for “Civil Rights Act of 1871” and got
no results. I put in just “Civil Rights Act” and got 12 results; the oldest was from 1957.
Later, after I had found the Public Law Number and Statute number, I went back to
Bloomberg and searched using PL 96-170. I found the law and the statute number. I also learned
that this law merely expanded the coverage of the 1871 law to the District of Columbia.
However, Bloomberg also clarified what the underlying problem is. Apparently, the
United State Code was revised in 1979 and it is difficult to find the statutory history for any preexisting laws, since some of the databases don’t go back beyond that codification in terms of
public law numbers and statutes. Bloomberg allowed me to click through to the 1871 law, 17
Stat 13.
FDSys
I searched in the “collections” history of bills, public and private laws and United States
Code for 42 USC 1983. The 2010 edition of the US code section stated:
(R.S. § 1979; Pub. L. 96–170, § 1, Dec. 29, 1979, 93
(R.S. § 1979; Pub. L. 96–170, § 1, Dec. 29, 1979, 93
Stat. 1284; Pub. L. 104–317, title III, § 309(c), Oct.
19, 1996, 110 Stat. 3853.)
CODIFICATION
9
R.S. § 1979 derived from act Apr. 20, 1871, ch. 22, § 1, 17
Stat. 13.
Section was formerly classified to section 43 of Title
8, Aliens and Nationality.
Thus, FDSys did not allow me to go back any further than the 1979 codification of the
US Code.
I checked to find out the substance of the 1996 amendment. The 1996 act had to do with
cases brought against a judicial officer, and is therefore irrelevant for my purposes. The 1979 Act
was too far back to search directly by the public law number or by statute number.
Thomas
On Thomas, I again checked the US Code, which was current through January 2011.
Then I checked the table of Sections Amended, Enacted, Omitted, etc. in the 112th Congress to
make sure there had been no amendments to the statute and found none.
Findlaw:
On the home page, under topics, I clicked more and then chose “Civil Rights” from the
expanded search. I searched within Civil Rights Law and Resources from the list of options. I got
1,097 hits. I added alien to the search box and got 28 hits, but none told me the PL or statute
number.
10
Cornell
I searched Cornell for 42 USC 1983 and got the PL and Statute number for the 1979 and
1996 laws as well as the text.
I used key cite on Westlaw. I learned about a proposal for an amendment to 42 USC
Section 1983 . While the amendment was irrelevant to my fact pattern, it would be an important
amendment, which limited damages to injunctive relief when the claim is based on state action
involving religious preferences and which would also limit damages in cases involving the Boy
Scouts of America.
CODE OF FEDERAL REGULATION
Lexis
To see if there might be a federal regulation which is relevant to my project, I searched
within the CFR for 42 USC 1983. I got 197 hits. I edited my search to add ‘and alien’ and got 15
hits. None was directly on point. The regulations dealt with the eligibility of aliens for various
federal welfare programs and with the deportation of aliens in the US illegally.
11
Westlaw
I searched within the CFR for ‘alien and vigilante’ and got no hits. I tried to search within
the CFR for 42 USC Section 1983 as a citation, using (CI) 42 USC S 1983. but that got 10,000
hits. I tired searching using natural language and got 100 documents. I then added alien and got
one somewhat relevant hit, 8 CFR Section 2878, a regulation from the Department of Homeland
Security detailing which employees can use force and deadly force in arresting illegal aliens and
the circumstances in which they can do so.
Bloomberg Law
I was unable to find any portion of the CFR which was relevant to my project.
CASES
I searched on Lexis in the Texas state cases combined file for false imprisonment. There
were 889 results. I edited the results by adding the term alien. There were 3 results. None were
relevant. The first case involved an action against a police department in which it was alleged
that the police had used excessive force in arresting the plaintiff. The second only uses these
terms in summarizing the opinion in a different case. The third involved a case in which the
person who allegedly engaged in the act of false imprisonment was an alien.
I searched on Lexis in the Texas state cases combined file for personation. There were 47
12
results.
I edited my search and searched within it for border patrol. There were no results. I edited
the results for personation with immigration. There were two results. They were both for the
same case at different stages of the proceedings. The second reversed the earlier case in part, and
thus I have only included the later case. It is Brown v. State, 212 S.W.3d 851(Tex App. 2006).
This is a criminal case in which the defendant robbed a Spanish speaker by impersonating a
police officer and speaking to him in broken Spanish. When the defendant was subsequently
pulled over, materials including the Spanish language words for immigration police were found
in the vehicle. While this is a criminal case, the proof for a criminal action for false personation
I searched on Lexis in the Texas Federal and State cases combined file for impersonat!.
There were 337 results. I edited my results by adding the terms public official and got 27 results.
Many of the results involved real law enforcement personnel and were therefore irrelevant or
were irrelevant for other reasons. However, there were two cases of possible interest:
Lewis v. State, 2001 Tex App Lexis 51, involving a process server who said that
he was “with the Justice Department” in order to get access to a person in the restricted
area of a half-way house.
Jones v. State, 1986 Tex App. Lexis 12284. I could not get access to this
document with our subscription.
I searched on Lexis for Texas cases which cite 42 USC Section 1983. The search was
truncated because it would return over 3,000 hits.
13
Next I searched in Lexis for cases which cite the statutes I had found. Tex Code Ann.
Crim. Proc. art. 13.12 is cited by 5 cases, which I could not read because they are not within the
terms of our subscription. I did , however, I did Shepardize them to make sure they are still good
case law. They are:
Murphy v. State, 112 S.W.3d 592, 2003 Tex. Crim. App. LEXIS 118 (Tex. Crim.
App. 2003)
Williams v. State, 542 S.W.2d 131, 1976 Tex. Crim. App. LEXIS 1085 (Tex.
Crim. App. 1976)
Dewalt v. State, 307 S.W.3d 437 (Tex.App. Austin 2010)
Thompson v. State, 244 S.W.3d 357, 2006 Tex. App. LEXIS 10796 (Tex. App.
Tyler 2006)
Larrabe v. State, 746 S.W.2d 264, 1988 Tex. App. LEXIS 52 (Tex. App. Amarillo
1988)
I tried to search on Lexis for Texas cases which cite 42 USC section 1981. My search
was truncated because it retrieved too many results. However, since our subscription won’t
permit me to read Texas cases in any event, I used Google Scholar and searched for Texas cases
citing 42 USC Section 1981. There were 35 results. One of these was a case I already knew
about due to my previous reading, Commercial Standard Fire and Marine Company v. Galindo,
484 SW2d 635 (Tex. Civ. App-El Paso 1972, writ ref. d n.r.e. 1973.) This case held that an
illegal alien is within the scope of that section and thus is of not barred from prosecuting an
action for personal injury. (I have used the citation format above rather than the bluebook one, as
14
it appears that Texas courts, like New York courts, routinely list the court and county of a
decision. This is the format which is used in reported cases.)
I tried to enter the citation into “get a document” on Lexis, but got a message telling me
that this was not within the scope of our subscription. I therefore Shepardized it to make sure that
it is still law. I Shepardized the citation for. According to Lexis, the case has been cited 43 times,
which was a much higher number of citations than indicated by Westlaw or Bloomberg.
However, only 11 of the 43 were case citations. Only one of these ‘followed” the case.
Unfortunately, Lexis would not let me click through to the citing cases, telling me despite
repeated attempts that they were not within my subscription. At least I knew it had not been
reversed or modified.
However, I was able to circumvent the restrictions in part by searching for the citation
484 SW2d 635. However, this method gave me nine rather than 11 case citations. According to
Shepard’s the only case to “follow” it was Fernandez-Lopez v. Jose Cervino, Inc.,288 NJ Super.
14, 672 A.2d 1051 (App Div. 1996), i.e., a New Jersey case.
Westlaw
I searched for Commercial Standard Fire and Marine Company v. Galindo, 484 SW2d
635 (Tex. Civ. App-El Paso 1972, writ ref. d. n.r.e. 1973) on Westlaw. Again, this case held that
15
an illegal alien is within the scope of 42 USC 1981 and is not barred from prosecuting an action
for personal injury.
I pulled up the case on Westlaw. Based on the appeals court’s opinion, this seems to have
been a case of first impression in Texas. The court reviews the decisions in other states,
including New York. There were several relevant headnotes, but the most relevant was headnote
4 which stated that an illegal alien is not barred from prosecuting an action for personal injury.
The key # was Aliens, Immigration and Citizenship24k133.
I updated the Commercial Standard Fire and Marine Company v. Galindo citation using
key cite and found that it was still good law.
According to Westlaw, Commercial Standard Fire and Marine Company v. Galindo has
only been cited twice for this particular proposition. One citation was by a court in New Mexico.
The other citation is in an order in limine issued by the trial court judge in Antunez v. Ballard
Exploration Company, Inc. 2002 WL 34102393, *34102393 (Trial Order) (Tex.Dist. Mar 04,
2002) Order (NO. C-200012376). In that case, the court ruled that defense counsel could not
introduce evidence relating to several issues. One of these issues was the plaintiff’s status as an
illegal alien. The court cited Commercial Standard Fire and Marine Company v. Galindo in
support of its ruling.
Most of the other Texas cases under the same key number are either very old, i.e, preCivil War, or involve somewhat different issues, e.g, the right of an alien to inherit property. The
16
one exception is Tyson Foods Inc. v. Guzman, 116 SW3rd 233 ( Tex App-Tyler 2003), which
held that immigration status was irrelevant to a claim for damages due to lost earning capacity.
I searched for alien and impersonat! I got 3 results. One of these was Brown v. State , 212
SW3d 851 (Tex App. Houston 2006), rev. refused (2007), cert. denied 552 U.S. 1151, 128 S.Ct.
1088, 169 Led.2d 825 (2008). In that case the defendant robbed a Spanish speaker. In doing so,
he acted as if he were a policeman and spoke to the victim in broken Spanish. One of the issues
discussed is the sufficiency of the evidence to convict him for impersonating a police officer.
This case would be helpful to a practitioner in establishing that the actions the vigilante rancher
engaged in here are sufficient to constitute false impersonation.
I key cited this case and found a relevant unpublished decision, Hudson v. State 20004
WL 1852965 (Tex.App. Tyler , rev. refused 2004). In this case, the defendant wore a hat with the
letters DPS and acted as if he were a policeman. The victims of his impersonation testified that
they understood the letters to mean Department of Public Safety. The court opined that the
defendant had intended that. This case would be helpful to the practitioner in this case in proving
that the insignia used by the vigilante rancher is evidence of intent to impersonate a public
official, even if it is not exactly the same as the border police.
Key citing the statutes lead me to one more relevant case, Rice v. State, 195 SW3rd 876
(Tex App Dallas 2006), rev. refused (2006) . In that case, the defendant argued that he had not
violated TEX. PENAL CODE ANN. Section 37.11 (a)(1) because he had claimed to be a
17
Louisiana official. He contended that the statute only applies to imitating Texas officials. The
court rejected this argument.
Bloomberg Law
I Bcited the Galindo case. According to Bloomberg, it has been mentioned 8 times, all
favorably.
I reviewed the cases listed and found that some of them would be of interest in building a
case against the border vigilantes. Commercial Standard Fire and Marine Company v. Galindo
is cited favorably in Doe v. Plyer, 458 F.Supp. 569 (ED Tex 1978), affd 628 F2d 448 (1980),
rehearing den.(1980), affd 457 US 202 1982). That case was an action on behalf of illegal alien
children who had been banned from the public schools in Tyler County Texas pursued to a Texas
law which required that they pay tuition to attend. Simplifying somewhat, the Doe case holds
that illegal aliens are entitled to the protections of the 14th Amendment to the US constitution and
thus could be cited in pleading a case pursuant to 42 USC Sections 1981, 1983. The other Texas
case which cites Commercial Standard, Hernandez v. Houston Indep School District, 558 SW2d
121 (Tx Civ. App. 1977), reh denied (1977), involves the same statute as Doe v. Plyer ,and
reached a contrary conclusion. The Supreme Court’s decision would seem to void the decision,
but Bcite does not note the Supreme Court decision which declared the underlying Texas state
statute unconstitutional.
18
Shepardizing 42 USC Section 1983 retrieved 351,919 citations. Restricted the search to
federal court cases and limited it to cases involving aliens. Got 10 hits. None were really
relevant.
I tried restricting to federal cases and searched using the term false imprisonment. About
half were good hits, establishing that false imprisonment can be the basis for a claim under
Section 42 USC Section 1983, although most seemed to hold that there was no violation of 42
USC Section 1983 in the particular case and/or dismissed the claim as time barred.
I tried restricting my search to federal cases and vigilane. I did not retrieve any relevant
results.
CONCLUSION
In summary, while the Texas criminal statutes are not directly applicable to the plaintiffs’
claims, they do provide some guidance. The vigilante ranchers may have violated three statutes:
that against unlawful restraint and/or kidnapping, that against impersonating a public official,
and that against impersonating a private security guard. They may also have violated the statute
against endangering the welfare of a child. While the fact that the plaintiffs may be engaged in
illegally entering the country and that may create an affirmative defense of a citizen’s arrest for
the rancher, it would not be a defense to the impersonation claims and, if applicable endangering
19
the welfare of a minor. The cases suggest that there is sufficient evidence to support the
conclusion that the rancher has committed the comparable torts.
The plaintiffs’ claims under 42 USC Section 1981 and 1983 are more problematical. The
act itself, enacted in 1871 does not refer to aliens. However, while the case law establishes that it
does apply to illegal aliens, whether they are being denied due process or fundamental rights is a
more open question.
20