CA9: It was well established that “illegal presence” in the U.S. was not a crime, so ptf’s arrest was unreasonable

Illegal entry is a crime, but not mere presence, and that was well established since 2012. Defendant’s arrest of plaintiff in a courtroom as a witness on suspicion of being here illegally at the request of a JP was unreasonable. Hernandez v. Skinner, 2020 U.S. App. LEXIS 25183 (9th Cir. Aug. 10, 2020).* Summary by the court:

The panel first noted that, unlike illegal entry into the United States—which is a crime under 8 U.S.C. § 1325—illegal presence is not a crime. See Martinez-Medina, 673 F.3d 1029, 1036 (9th Cir. 2011). Therefore, “because mere unauthorized presence is not a criminal matter, suspicion of unauthorized presence alone does not give rise to an inference that criminal activity is afoot.” Melendres v. Arpaio, 695 F.3d 990, 1001 (9th Cir. 2012). Because Melendres and Martinez-Medina controlled and defendant Skinner failed to demonstrate that he had a particularized and objective basis for believing criminal activity was afoot, the panel affirmed the district court’s holding that Skinner violated the Fourth Amendment when he seized plaintiff by Terry-stopping and then arresting him without reasonable suspicion or probable cause, respectively.

The panel further held that under either the proximate or the but-for standard of causation, defendant Hernandez was an integral participant in the violation of plaintiff’s constitutional rights. The panel held that plaintiff’s right to be free from unlawful stops in this circumstance had been established since at least 2012, by which time both Melendres and Martinez-Medina were law of the circuit.

Bloomberg Law: Witness Seized on Immigration Suspicions Can Pursue Lawsuit by Brian Flood (“A man who was arrested at a Billings, Mont., courthouse after another witness testified he wasn’t in the U.S. legally can pursue his Fourth Amendment case against the officials responsible, because the Ninth Circuit said.”)