Search Warrant
Michael MASINTER
masinter at NOVA.EDU
Fri Apr 28 21:08:55 PDT 2000
I will try one last time to answer, though I suspect I have begun to
repeat myself. The INS regulations to which I referred gave INS the
authority to require the family to produce the child, and also gave INS
independent authority to detain the child. The unlawful restraint arises
because INS ordered the surrender exercising authority under 8 CFR
236.1(c)(9) and 236.3(b)(4). The warrant authorized the seizure of the
child, a seizure plainly permissible under the governing regulations.
Holding a person (and make no mistake, the child was not free to leave,
having been off the property one time in roughly six weeks) who has been
ordered returned is perforce holding someone without legal authority.
Had Elian been an adult, the reason for the issue of a warrant would have
been obvious -- he failed to surrender himself to INS as ordered.
Because he was not an adult, he was not free to surrender himself; that
obligation ran to those holding him, and their refusal constituted
unlawful restraint.
I misspoke by saying Elian has no right to be in the US until and unless
INS grants him asylum. I should have inserted the phrase "free from the
custody of INS" after "US." Any applicant for asylum has the right to
remain in the US until disposition of the asylum application. The 11th
Circuit thought that a child has a right to apply for asylum (correctly)
and that Elian had applied for asylum (incorrectly in my view, but that
has no bearing on custody pending its resolution).
The Eleventh Circuit nowhere questions the authority of INS to exercise
its statutory and regulatory discretion to detain Elian pending
disposition of the asylum litigation under whatever conditions the
government dictates. For most applicants, that means in jail or a
juvenile detention facility. For Elian, it means that INS is free to
leave him in Miami or place him with his father or in a facility or
shelter with other unaccompanied minors.
In short, I understand INS regulations and the statutes under which they
were issued to authorize it to require the relatives to bring the child to
the airport, and also to authorize INS to seize the child with a search
warrant without first asking for his surrender at the door of the Gonzales
home.
Perhaps I am wrong, and if so, the family can sue for damages, though
individual agents will be entitled to qualified immunity and will
therefore prevail before discovery. Given their repeated statements that
INS would have to take the child by force, it is hard to see how they will
have any claim beyond nominal damages since the failure to first ask
before seeking a warrant would not have caused any harm they would not
have suffered anyhow -- taking them at their word, they would have said
no, and INS would have returned with a warrant. We already know how the
family responds to warrants.
Michael R. Masinter 3305 College Avenue
Nova Southeastern University Fort Lauderdale, Fl. 33314
Shepard Broad Law Center (954) 262-6151
masinter at nova.edu Chair, ACLU of Florida Legal Panel
On Fri, 28 Apr 2000, Randy Barnett wrote:
> Michael:
>
> My questions all went to the issue of "unlawfully restrained" which was the
> exclusive legal basis stated in the INS affidavit and memorandum in support
> of its warrant application (which I have now had a chance to read) and for
> your original defense of the warrant under Federal Rules of Criminal
> Procedure 41(b) which was the ONLY section under which the government
> claimed authority for a warrant. The INS also based its legal theory of
> "unlawful restraint" on Lorenzo Gonzales' "refus[al] to return physical
> custody of Elian to the INS, as ordered by the INS." Before moving on to
> the different theory you offered in your last post, I would still like to
> understand how this asserted legal basis for the warrant works:
>
> (1) Did the AG/INS have the authority to "order" (its word, p.2) that the
> Gonzales family deliver Elian to a place of the government's choosing (in
> this case Opa Locka Airport as stated in the affidavit) such that their
> failure to do so constitutes "illegally restraining" Elian? If so, what is
> the basis for its authority to issue such a "order"? On what law or theory
> did the Gonzales family have a legal duty to take Elian to Opa Locka rather
> than simply wait for the government to come and pick him up? (Perhaps you
> were asserting that there was to be an INS "proceeding" at the Air Force
> base? Is that true? What sort of proceeding was it going to be?) Given
> that you say the INS was entitled to a warrant from the moment they revoked
> parole, I take it that nothing turns on the family's refusal to respond to
> the government's effort "to be nice" and demand his surrender at Opa Locka
> (though the government's affidavit and memorandum rely exclusively on that
> "refusal" to turn their mere possession into an "unlawful restraint"). But
> this still leaves my first question: If they had not violated any duty by
> failing to take Elian to the Air Force base, then how does their continued
> possession of Elian--to whom he was originally paroled by the
> INS--constitute an "illegal restraint" which was the standard both you and
> the government invoked from the Federal Rule of Criminal Procedure?
>
> (2) If the family did not have a legal duty to take Elian to the Air Force
> base and their failure to do so did not constitute an "illegal restraint"
> (as alleged by the government), then was the INS entitled under 41(b) to
> obtain a search warrant IN ADVANCE of their going to the Gonzales' home and
> asking that the family produce Elian and their refusal to do so? If so, on
> what grounds? Would it not have been the refusal of the family to turn over
> the boy when the INS came to their house to take him into custody that would
> then have constituted an "illegal restraint"? In other words, was the
> search warrant properly issued BEFORE there was an actual "refusal" to turn
> the boy over to the government. You mention the refusal by the family to
> open the door, but I do not see how that could be used to justify the
> legality of the warrant that was issued hours before. The search warrant
> form states that Elian was "concealed" there, but that surely cannot be the
> case (he could not have been less concealed) and, at any rate, the
> government did not allege concealment in its affidavit or memorandum.
>
> In your latest post you no longer seem to be relying on the "unlawful
> restraint" theory. Instead you offer a different theory based on the
> statement that
>
> > Elain entered this country w/o a visa and has no right to be here unless
> > and until he is granted political asylum.
>
> This confuses me even more. In what sense has Elian no right to be in the
> United States (as of last Saturday) if the Eleventh Circuit Court of Appeals
> has enjoined his exit from the US? The government conceded in its
> memorandum that Elian had received "temporary admission" into the US which
> was certainly the case. In its memorandum, the government claimed that:
>
> "By revoking parole, Commissioner Pearson and District Director Wallis ended
> Elian's temporary admission into the Unites States." (p.2)
>
> Can this be true? Did they even have the power to do this in light of the
> Eleventh Circuit's injunction? It seems that as of Saturday, Elian had a
> formal legal status not usually enjoyed by "illegal aliens." Whether or not
> this is true, is this "illegal status" theory, and not the "unlawful
> restraint" theory actually used by the government, the appropriate basis for
> the magistrate to issue the search warrant? If the "unlawful restraint"
> theory asserted by the government is conceded to be invalid, then I can pay
> more attention to the alternate theory you raised and the crucial question
> of whether such a justification for issuing a search warrant appears in
> 41(b).
>
> Finally, the issue is not resolved by the legality of the Administrative
> Arrest Warrant issued by the INS as even the government in its memorandum
> conceded that "a search warrant is required before the INS may enter that
> residence [of a third party] in order to execute the Administrative Arrest
> Warrant by seizing the person of Elian Gonzales." (p. 5). And the matter of
> the search warrant (not the Administrative Arrest Warrant) turns on the
> issue of "unlawful restraint"--the only basis asserted by the government for
> relying upon sec. 41(b)
>
> Keep in mind that I am not here contesting the government's right to go to
> the Gonzales house and demand custody of Elian or that Lorenzo Gonzales
> could rightfully refuse to produce him. But I am still struggling to
> understand the legality of the government's actions on Saturday so that any
> opinions I may express on this subject in the future are well founded.
>
> Randy
>
> PS: For those who want to read the warrant, affidavit, & memorandum for
> themselves, the link is:
>
> http://www.herald.com/content/archive/news/rafters99/insdocs/content.htm
> __________________________________________
> Randy E. Barnett
> Austin B. Fletcher Professor
> Boston University School of Law
> 765 Commonwealth Ave.
> Boston, MA 02215
> mailto:rbarnett at bu.edu
> (617) 353-3099 (phone)
> (617) 353-3077 (fax)
> www.bu.edu/rbarnett
> www.bu.edu/rbarnett/SOL.htm (Structure of Liberty page)
> www.LysanderSpooner.org (Lysander Spooner Website)
>
>
> > -----Original Message-----
> > From: Discussion list for con law professors
> > [mailto:CONLAWPROF at listserv.ucla.edu]On Behalf Of Michael MASINTER
> > Sent: Friday, April 28, 2000 10:44 AM
> > To: CONLAWPROF at listserv.ucla.edu
> > Subject: Re: Search Warrant
> >
> >
> > 8 CFR 236.3(b)(4) requires the custodian to whom Elian was released to
> > execute an agreement to ensure his attendance at all INS proceedings. 8
> > CFR 236.1(c)(9) authorizes INS to revoke custody and detain. Even if the
> > family did not violate its agreement with INS, the statute and regs give
> > it authority to take the child into custody. The warrant authorized the
> > search of the home only for the purpose of detaining the kid; INS had
> > authority to detain the kid, and when they executed the warrant and the
> > family refused to open the door, to enter the home for that purpose. They
> > accomplished that purpose and left; no search was conducted beyond the
> > search for the boy.
> >
> > I remain puzzled by the objection to proceeding by warrant. INS had
> > lawfully revoked parole and ordered the surrender of the boy; the latter
> > step was unnecessary; it could have simply revoked parole, obtained a
> > warrant, and seized him. It tried to be nice, by asking the family to
> > produce him at a safe location, in accordance with its 236.3(b)(4)
> > agreement, but the family declined to cooperate. INS then acted as it had
> > been free to act from the moment it revoked parole.
> >
> > Elain entered this country w/o a visa and has no right to be here unless
> > and until he is granted political asylum. In the meantime, he is in the
> > custody of the INS; nothing in the Eleventh Circuit order suggests
> > otherwise, nor could it given the immigration laws. (If he were an adult
> > and a flight risk, or an unaccompanied minor from Mexico, he would be in
> > some INS jail or detention facility considerably less comfortable than Wye
> > Plantation). There was certainly probable cause for the magistrate who
> > issued the warrant to conclude i) EG entered the US in violation of the
> > immigration laws, ii) EG is in the legal custody of the Attorney General,
> > and iii) EG was present on the Gonzalez premises. The warrant follows from
> > those conclusions.
> >
> > The refusal of the Eleventh Circuit to issue the injunction sought by INS
> > undercuts none of this; it refused to issue the injunction because it had
> > nothing to do with the issue before it, not because the government had no
> > right to custody of the child. I think the Eleventh Circuit was correct
> > in refusing to order the family to produce the child; the act and regs
> > provide a clear means for INS to exercise its custodial authority, and
> > that is what it did.
> >
> > I understand Professor Tribe's objection to proceed from the underlying
> > assumption that Elian had a liberty interest sufficient to require a
> > pretermination hearing before the terms of his physical custody could be
> > altered. I do not know the source of that liberty interest given the
> > statutes, the regulations, and the Supreme Court's treatment of the
> > "rights" of aliens. Obviously the Gonzales family has no independent
> > liberty interest which would trigger a pretermination hearing.
> >
> > In many respects, I wish the law were otherwise. Congress and the Court
> > have combined to eviscerate the "rights" of illegal aliens in ways that I
> > think are inconsistent with fundamental notions of liberty. But it is
> > plain that Eliam has no more than a right to apply for asylum, and to
> > remain in the U.S. in the custody of INS until the completion of
> > proceedings relating to that application if he applies or has been deemed
> > to have applied; he has no right to dictate the terms of his custody, or
> > to a judicial hearing before they are altered.
> >
> > Michael R. Masinter 3305 College Avenue
> > Nova Southeastern University Fort Lauderdale, Fl. 33314
> > Shepard Broad Law Center (954) 262-6151
> > masinter at nova.edu Chair, ACLU of Florida Legal Panel
> >
> > On Fri, 28 Apr 2000, Randy Barnett wrote:
> >
> > > I am trying hard to get a handle on the legality of this.
> > >
> > > Michael Masinter wrote:
> > > > See also Fed. R. Crim. P. 41(b), which provides that a warrant may be
> > > > issued to search for and seize any person "who is unlawfully
> > restrained."
> > > > That rule is intended to permit just the type of action taken
> > here: entry
> > > > to recover a child or other person being held without legal
> > justification.
> > >
> > > The following are not rhetorical questions:
> > >
> > > Is "held without legal justification" the same as being "unlawfully
> > > restrained"? Let us stipulate that the AG has discretion to revoke the
> > > parole of Elian and transfer it to his father without any
> > judicial process.
> > > Let us stipulate also that, if the INS came to their home to
> > claim Elian and
> > > the Gonzales family refused to do turn him over, their
> > continued possession
> > > of Elian would constitute "unlawful restraint." Does the
> > AG/INS also have
> > > the discretionary authority to compel the Gonzales family to
> > deliver Elian
> > > to a place they direct without any judicial process? Doesn't their
> > > unsuccessful request of the Eleventh Circuit to order just this
> > suggest they
> > > did not believe they had THIS authority? If they didn't have this
> > > authority, must they not first obtain a court order that the
> > Gonzales family
> > > deliver Elian--as they attempted unsuccessfully to do--only
> > AFTER WHICH the
> > > refusal of the Gonzales family constitutes "unlawful restraint" in which
> > > event they could apply for a search warrant? Alternatively,
> > though the INS
> > > had the unilateral authority to go to the house and demand that
> > the Gonzales
> > > family relinquish custody to them without a court order, would
> > this demand
> > > not first have to have been refused by the family before the
> > INS would be
> > > justified in obtaining a search warrant due to "unlawful restraint"?
> > >
> > > Randy
> > >
> > > __________________________________________
> > > Randy E. Barnett
> > > Austin B. Fletcher Professor
> > > Boston University School of Law
> > > 765 Commonwealth Ave.
> > > Boston, MA 02215
> > > mailto:rbarnett at bu.edu
> > > (617) 353-3099 (phone)
> > > (617) 353-3077 (fax)
> > > www.bu.edu/rbarnett
> > > www.bu.edu/rbarnett/SOL.htm (Structure of Liberty page)
> > > www.LysanderSpooner.org (Lysander Spooner Website)
> > >
> > >
> > > > -----Original Message-----
> > > > From: Discussion list for con law professors
> > > > [mailto:CONLAWPROF at listserv.ucla.edu]On Behalf Of Michael MASINTER
> > > > Sent: Thursday, April 27, 2000 2:23 PM
> > > > To: CONLAWPROF at listserv.ucla.edu
> > > > Subject: Re: Search Warrant
> > > >
> > > >
> > > > Whoever writes may also want to look at the state court ruling at
> > > > http://www.jud11.flcourts.org/baileyfinal.pdf which makes clear at pp
> > > > 12-18 that under Florida law, the Miami relatives have no
> > rights, and that
> > > > the only allegation of abuse or neglect was the threat to
> > return to Cuba.
> > > > See also Fed. R. Crim. P. 41(b), which provides that a warrant may be
> > > > issued to search for and seize any person "who is unlawfully
> > restrained."
> > > > That rule is intended to permit just the type of action taken
> > here: entry
> > > > to recover a child or other person being held without legal
> > justification.
> > > >
> > > > Tribe and Dershowitz strongly believe (as do I) that Congress
> > has made a
> > > > hash of the Immigration Reform and Control Act, but that has little
> > > > bearing on this case. The fourth amendment was not violated;
> > there was a
> > > > warrant and probable cause to believe the relatives were unlawfully
> > > > detaining the boy. The Miami relatives have no fifth
> > amendment rights re
> > > > the child which would require a pretermination adversary
> > hearing. They
> > > > did not appeal the INS order terminating Elian's parole and restoring
> > > > physical custody to his father. End of story.
> > > >
> > > > Michael R. Masinter 3305 College Avenue
> > > > Nova Southeastern University Fort Lauderdale, Fl. 33314
> > > > Shepard Broad Law Center (954) 262-6151
> > > > masinter at nova.edu Chair, ACLU of
> > Florida Legal Panel
> > > >
> > > > On Thu, 27 Apr 2000, Martin H. Belsky wrote:
> > > >
> > > > > Let me join in the request that Professor Laycock draft a short
> > > > letter or
> > > > > even an op-ed piece to the New York Times.
> > > > >
> > > > > At a community meeting this morning, a number of individuals
> > > > who I beleive
> > > > > had open minds were bothered by the "gestopo tactics" and that, as
> > > > > "Professor Tribe pointed out in the Times, could have been
> > avoided by
> > > > > following proper judicial and judicious procedure."
> > > > >
> > > > > Maybe - a joint letter should be considered. Friendly in
> > > > nature : "Larry,
> > > > > you are wrong" would be a nice opening line. Signed -- "Your
> > > > colleagues
> > > > > Throughout the Nation"
> > > > >
> > > > > At 07:58 PM 4/26/00 -0400, you wrote:
> > > > > >I recommend that Prof. Laycock forward this note to the
> > > > NYTimes, because
> > > > > now probably
> > > > > >millions of Americans have been confused by Tribe's (dare I say
> > > > > it?)"diatribe" (heheh)
> > > > > >
> > > > > >Leslie
> > > > > >Douglas Laycock wrote:
> > > > > >
> > > > > >> I have now read the search warrant that Michael
> > > > Masinter posted.
> > > > > I must
> > > > > >> say that I simply do not understand Larry Tribe's point in
> > > > the New York
> > > > > >> Times.
> > > > > >>
> > > > > >> The warrant expressly describes Elian Gonzales as
> > > > the person to
> > > > > be seized.
> > > > > >> It expressly authorizes execution in the nighttime. It
> > is on a form
> > > > > >> designed for the seizure of either persons or things,
> > > > requring the judge to
> > > > > >> specify the person or thing to be seized, and requiring the
> > > > judge to choose
> > > > > >> between authorizing execution only during daylight hours or
> > > > at any time.
> > > > > >>
> > > > > >> I am open to the argument that we should provide
> > > > more procedural
> > > > > >> protection than we do before issuing search warrants, but
> > > > given our general
> > > > > >> law of warrants, I have no idea what Larry Tribe thinks was
> > > > wrong with this
> > > > > >> one. Certainly they were not going to arrest Elian,
> > > > although so far as I
> > > > > >> know, an arrest warrant would simply have been a different
> > > > form, with no
> > > > > >> more real procedural protection.
> > > > > >>
> > > > > >> Douglas Laycock
> > > > > >> University of Texas Law School
> > > > > >> 727 E. Dean Keeton St.
> > > > > >> Austin, TX 78705
> > > > > >> 512-232-1341 (phone)
> > > > > >> 512-471-6988 (fax)
> > > > > >> dlaycock at mail.law.utexas.edu
> > > > > >
> > > > > --
> > > > > Martin H. Belsky
> > > > > Dean & Professor of Law
> > > > > University of Tulsa College of Law
> > > > > 3120 E. 4th Place
> > > > > Tulsa, OK 74104
> > > > > 918-631-2400
> > > > > 918-631-3126 [Fax]
> > > > > martin-belsky at utulsa.edu
> > > > >
> > > > >
> > > >
> > >
> > >
> >
>
>
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