Civilian Patrols Along the Border: Legal and Policy Issues
Civilian Patrols Along the Border:
Legal and Policy Issues
Updated December 18, 2006
Stephen R. Viña
American Law Division
Analyst in Domestic Security
Domestic Social Policy Division
Civilian Patrols Along the Border:
Legal and Policy Issues
Civilian patrols along the international border have existed in a wide variety of
forms for at least 150 years. Over the past 15 years, civilian border patrol groups
appear to have proliferated along the U.S.-Mexico border, partly due to the
increasing numbers of aliens entering the country illegally. In the spring of 2005,
attention focused on these civilian patrols, when the “Minuteman Project” mobilized
hundreds of volunteers along the Arizona-Mexico border to observe and report the
movement of illegal aliens to the U.S. Border Patrol. Although some participants
were armed, Minutemen volunteers were instructed not to engage in hostile
confrontations with any illegal alien. Organizers of the Minuteman Project have
expanded the Project to the other southwestern border states and Canada and have
split the mission into a border defense corps and an internal vigilance operation that
monitors businesses and government. The Minuteman launched a new border watch
initiative named “Operation Sovereignty” in September of 2006 near Laredo, Texas.
The activities of the Minutemen sparked a national debate on the legality and
effectiveness of such civilian action along the border. Some questioned, for instance,
the authority that allows civilians to undertake immigration-related enforcement
activities and the legal status of a volunteer (i.e., private vs. federal actor). Others
suggested that the Secretary of the Homeland Security should “deputize” the
Minuteman volunteers or other private citizens so that they may play a larger and
more regulated role. Some in the 109th Congress introduced bills that would have
authorized and expanded civilian patrols along the border. Others in and outside of
Congress were concerned with the effect that civilian border patrols might have on
current border dynamics and enforcement operations.
Civilian border patrols would seem to be private actors since they are not
operating under the color of federal or state law or at the behest or direction of federal
or state authorities. As private actors, civilian patrols appear to have the right to
gather and conduct some of their activities under a combination of constitutional and
common law rights and privileges. Some of these rights and privileges have been
codified in state law and provide quasi law enforcement authority. Civilian patrols
would still have to abide by state and federal laws. There does not appear to be
authority under the INA for the Secretary to “deputize” civilians to enforce
immigration law, though some activities may not necessarily require an authorization.
This report provides a history of civilian border patrol groups, with a focus on
those groups operating along the southwest border, including most particularly, the
“Minuteman Project.” It also addresses some of the legal and policy issues (as
mentioned above) that have surfaced from civilian activities at the border. The report
concludes with an overview of legislative proposals introduced in the 109th Congress
that addressed the issue of civilian border patrol groups. This report will be updated
In troduction ......................................................1
Authority to Enforce Immigration Law.................................2
U.S. Border Patrol Practices.........................................5
Civilian Border Patrol Organizations...................................6
Ad Hoc Groups...............................................6
Organized Civilian Patrol Groups.................................7
Voices of Citizens Together/American Patrol....................7
American Border Patrol.....................................8
Civil Homeland Defense....................................9
The Minuteman Project.........................................9
Civilian Patrols and the Law........................................12
Legal Scope .................................................13
Legal and Policy Issues............................................15
Private Actors or Agents of the Government?.......................18
Interactions with the USBP.................................19
Interactions with Aliens....................................20
Violence at the Border.....................................20
List of Tables
Appendix 1. Table of Selected State Authorities........................22
Civilian Patrols Along the Border:
Legal and Policy Issues
Civilian patrols along the international border have existed in a wide variety of
forms for at least a hundred and fifty years. Over the past fifteen years, civilian
border patrol organizations appear to have proliferated along the U.S.-Mexico border,
partly due to the increasing numbers of aliens entering the country illegally. This
trend appears to have further sharpened over the past five years with a number of
highly organized groups forming and actively recruiting volunteers. Nationwide
attention focused on the phenomenon in April 2005, when the “Minuteman Project”
mobilized hundreds of volunteers along the Arizona-Mexico border to observe and
report the movement of illegal aliens to the U.S. Border Patrol (USBP). Although
some participants were armed, Minutemen volunteers were instructed not to engage
in hostile confrontations with any illegal alien.
The Minuteman Project sparked a national debate on the legality and
effectiveness of such civilian action at the border. From this debate, a number of
legal and policy issues emerged, as parties considered the potentially dangerous law
enforcement nature of the mission and the overwhelming federal responsibilities in
immigration matters. Some questioned, for instance, the authority that allows
civilians to engage in immigration-related enforcement measures and the legal status
of a volunteer (i.e., private vs. federal actor). Others suggested that the Secretary of
the Homeland Security should “deputize” the Minuteman volunteers or other privateth
citizens so that they may enforce immigration law. Indeed, some in the 109
Congress introduced bills that would have authorized and expanded civilian activities
along the border. Others in Congress and elsewhere were concerned with the effect
that such activities might have on current border dynamics and enforcement
This report opens with a discussion on the federal authority to enforce
immigration law at the border and some U.S. Border Patrol operations that have
affected illegal migration patterns along the southwest border. Next, the report
provides a history of civilian border patrol groups, with a particular focus on the
“Minuteman Project” and other groups operating along the southwest border. It then
highlights issues of authority that might arise, and includes, as an appendix, a table
that sets forth various state laws that might be cited by civilians performing
immigration-related enforcement activities. The report also addresses some of the
legal and policy issues, as mentioned above, that have surfaced from civilian
involvement in immigration enforcement at the border. The report concludes withth
an overview of legislation introduced in the 109 Congress that addressed the use of
civilian border patrols.
Authority to Enforce Immigration Law
For decades, the administrative authority to interpret, implement, enforce, and
adjudicate immigration law within the U.S. lay almost exclusively with one officer:
the Attorney General. The most general statement of this power was found in1
§103(a)(1) of the Immigration and Nationality Act of 1952 (INA), the fundamental
statute regulating the entry and stay of aliens:
The Attorney General shall be charged with the administration and enforcement
of the Act and all other laws relating to the immigration and naturalization of
aliens, except insofar as this Act or such other laws relate to the power,
functions, and duties conferred upon the President, the Secretary of State, or
diplomatic or consular officers; Provided, however, That determination and
ruling by the Attorney General with respect to all questions of law shall be
Operationally, most of this authority was delegated to, and carried out by, the
Commissioner of Immigration and Naturalization Service (INS) and the INS, though
the Attorney General still retained ultimate authority.
In the Homeland Security Act of 2002 (HSA; P.L. 107-296), Congress
reallocated administrative authority over immigration law from the Department of
Justice (DOJ) to the Department of Homeland Security (DHS). The HSA amended
§103(a)(1) of the INA to place the Secretary of DHS in primary charge of the2
administration and enforcement of immigration laws. Congress transferred the
enforcement functions (along with authorities and personnel attendant to those3
functions) that were being conducted through the Commissioner of INS, as well as
others, to the Under Secretary for Border and Transportation Security.4 An
administrative reorganization later divided the transferred enforcement functions into
two separate agencies to address priorities (1) at and near the border and (2) within5
the interior of the United States. A subsequent administrative reorganization
appears to have consolidated the functions performed by the Under Secretary for
Border and Transportation Security into a new Directorate of Policy, but made the
immigration enforcement agencies free-standing entities within DHS. The HSA
makes clear that all functions of all officers, employees, and organizational units of
the Department of Homeland Security (DHS) are vested in the Secretary.6
1 8 U.S.C. §§1101 et seq.
2 See P.L. 107-296, §1102, as amended by P.L. 108-7, Div. L, §105(a)(1).
3 For example, the HSA states that the term “functions” includes authorities, powers, rights,
privileges, immunities, programs, projects, activities, duties, and responsibilities.
4 P.L. 107-296, §441.
5 Immigration enforcement conducted within the interior of the United States is conducted
by DHS’s Immigration and Customs Enforcement. This Report does not focus on interior
6 P.L. 107-296, §102(a)(3). DHS regulation 8 C.F.R. §2.1 further makes clear that all
authorities and functions of DHS to administer and enforce immigration laws are vested in
With respect to border enforcement, §103(a)(5) of the INA provides the
Attorney General (now the Secretary of DHS) “shall have the power and duty to
control and guard the boundaries and borders of the United States against the illegal
entry of aliens....”7 The HSA requires the Secretary of DHS (acting through the now
defunct Undersecretary of Border and Transportation Security) to, among other
things, prevent the entry of terrorists, secure the borders, and carry out the
immigration enforcement functions vested by statute in the Commissioner of INS.8
Immigration enforcement at or near the border is conducted by DHS’s Customs and
Border Protection (CBP). This border agency combined the inspectional workforces
and broad border authorities of Customs, INS, and the Animal and Plant Health
Inspection Service. Although CBP is charged with overall border enforcement, a
distinction is made concerning border enforcement at and between ports of entry.
Immigration enforcement responsibilities between ports of entry fall primarily on the
U.S. Border Patrol (USBP), while responsibilities at the ports of entry fall on CBP
Although the enforcement of immigration law within the proximity of the
border rests with CBP and the USBP, the Secretary of DHS appears to have the
authority to delegate these enforcement functions to following individuals:
!Any Employee of CBP, ICE, or DHS. Section 103(a)(4) of the INA
authorizes the Secretary to require or authorize any employee of CBP,
ICE, or DHS to perform or exercise any of the powers, privileges, or
duties conferred or imposed by the INA or regulations issued thereunder.
!Any Employee of the United States. Section 103(a)(6) of the INA
authorizes the Secretary to confer or impose upon any employee of the
United States, with the consent of the head of the department under whose
jurisdiction the employee is serving, any of the powers, privileges, or
duties conferred or imposed by the INA or regulations issued thereunder
upon officers or employees of CBP or ICE.
!State and Local Law Enforcement Officers. Section 103(a)(8) of the
INA allows the Secretary of DHS, in the event the Secretary determines
that an actual or imminent mass influx of aliens arriving off the coast of
the United States, or near a land border, presents urgent circumstances
requiring an immediate Federal response, to authorize any State or local
law enforcement officer, with the consent of the head of the department
under whose jurisdiction the individual is serving, to perform or exercise
7 The HSA effectuated the transfer of immigration authority in statutory language that is
separate and apart from the INA itself (i.e., it did not amend the INA). Consequently, many
forms of authority, including Executive Orders, rules, regulations, directives, and the INA,
still refer to the Attorney General or other DOJ components. The HSA remedies this
situation in §456, §1512(d), and §1517 by making all references in the above-mentioned
forms of authority relating to an agency that was transferred “deemed to refer” to the
appropriate agency or employee in DHS. Accordingly, this Report refers to the Secretary
or applicable DHS component.
8 P.L. 107-296, §402.
any of the powers, privileges, or duties conferred or imposed by the INA
or regulations issued thereunder upon officers or employees of CBP or9
Individual enforcement authority stems from §287 and §235 of the INA.10
Section 287 of the INA gives any officer or employee of the former Immigration and
Naturalization Service (INS — now employees of the DHS) authorized under
regulation prescribed by the Attorney General (now the Secretary of DHS) the
general power, without a warrant, to interrogate aliens, make arrests, conduct
searches, board vessels, and administer oaths.11 For example, §287(a)(3) authorizes
immigration officers to have access to private lands (but not dwellings) within a
distance of twenty-five miles from the border for the purpose of patrolling the border
and preventing the illegal entry of aliens. Section 235 authorizes “immigration
officers” to inspect all aliens who are applicants for admission or otherwise seeking
admission or readmission to or transit through the United States. The combination
or cross-designation of inspectors from Customs, the INS, and the U.S. Department
of Agriculture within DHS’s Bureau of Customs and Border Protection, however,
may allow the use of other enforcement authorities depending on the circumstance.
The term “immigration officer” is statutorily defined in the INA to mean any
employee or class of employees of the INS or of the United States as designated by
the Attorney General, individually or by regulation, to perform the functions of an
immigration officer specified by the INA.12 DHS has implemented regulations
clarifying the meaning of “immigration officer” with respect to DHS personnel. The
regulation (8 C.F.R. §103.1(b)) designates various categories of CBP and ICE
officials and even other officers or employees of DHS or of the U.S. as designated
by the Secretary as immigration officers authorized to exercise the powers and duties
of such officers as specified by the INA and applicable regulations.13
9 See also INA §287(g) (authorizing the Secretary of DHS to enter into agreements with
state and local law enforcement officers to carry out the investigation, apprehension, or
detention of aliens in the United States).
10 8 U.S.C. §1357 and §1225.
11 References to the Attorney General, the Commissioner of the former INS, and INS are
now deemed to refer to the Secretary of DHS, his delegates, or appropriate component in
DHS. See P.L. 107-296, §§102(a), 441, 1512(d), and 1571; 8 C.F.R. §2.1, §103.1.
12 8 U.S.C. §1101(a)(18).
13 The following DHS employees including senior or supervisory officers of such employees
have been designated “immigration officers” pursuant to 8 C.F.R §103.1(b): immigration
officer, immigration inspector, immigration examiner, adjudications officer, Border Patrol
agent, aircraft pilot, airplane pilot, helicopter pilot, deportation officer, detention
enforcement officer, detention officer, investigator, special agent, investigative assistant,
immigration enforcement agent, intelligence officer, intelligence agent, general attorney
(except with respect to CBP, only to the extent that the attorney is performing any
immigration function), applications adjudicator, contact representative, legalization
adjudicator, legalization officer, legalization assistant, forensic document analyst,
fingerprint specialist, immigration information officer, immigration agent (investigations),
asylum officer, other officer or employee of the Department of Homeland Security or of the
U.S. Border Patrol Practices
In the 1990s, the United States Border Patrol began implementing a policy of
“Prevention Through Deterrence” with the goal of placing USBP agents and
resources directly on the border to detect and deter the entry of illegal aliens, rather
than attempting to arrest aliens after they had already entered the country. The policy
was applied nationally after the perceived successes of the “Hold the Line” program14
in El Paso, Texas, and of Operation Gatekeeper in San Diego, California. In
addition to placing more agents directly on the border, these operations utilized15
landing mat fencing, stadium lighting, cameras, and sensors to deter and detect
unauthorized aliens. Additionally, the policy reflected the USBP’s goal of rerouting
the illegal migration patterns away from traditional urban routes such as San Diego
towards less populated and geographically isolated areas, providing USBP agents16
with a tactical advantage over illegal border crossers and smugglers.
In practice, the prevention through deterrence strategy has succeeded in shifting
the migration pattern of unauthorized aliens. Throughout the late 1990s
apprehensions decreased significantly in the traditional high-traffic areas along the
California and Texas border, instead pushing would-be migrants out into the harsh17
conditions of the Arizona desert along the Tucson sector. In FY1997, the California
section of the border accounted for 31% of the 1.38 million apprehensions made by
the USBP, while Arizona accounted for 22%. In FY2005, Arizona accounted for
49% of the 1.19 million apprehensions made by the USBP, while California
accounted for 15%. Whether the strategy has succeeded in reducing the overall
number of people attempting to enter the country illegally is a matter of much debate.
USBP apprehensions increased steadily through the late 1990s, reaching a peak of
reaching a low of 905,065 in 2003. Apprehensions increased over the last two fiscal
years, reaching 1.19 million apprehensions in FY2005.
United States as designated by the Secretary of Homeland Security as provided in §2.1 of
14 For a more detailed discussion of the “Hold the Line” program and Operation Gatekeeper,
please refer to CRS Report 97-989, U.S. Border Patrol Operations, by William Krouse
(archived — available from author).
15 Landing mat fencing is constructed from surplus Vietnam War era landing mats used to
set up temporary landing strips for airplanes.
16 U.S. Government Accountability Office, Border Security: Agencies Need to Better
Coordinate Their Strategies and Operations on Federal Lands, GAO-04-590, June 2004,
pp. 10-11; see also “Combating Illegal Immigration: Progress Report” Hearing before theth
House Committee on the Judiciary, Subcommittee on Immigration and Claims, 105 Cong.,
(Apr. 23, 1997) (testimony of George Regan, Acting Associate Commissioner, Enforcement,
Immigration and Naturalization Service).
17 For a more in depth analysis of the U.S. Border Patrol, please refer to CRS Report
RL32562, Border Security: The Role of the U.S. Border Patrol, by Blas Nuñez-Neto.
Civilian Border Patrol Organizations
The phenomenon of civilians taking it upon themselves to patrol the border has
existed in a wide variety of forms for at least a hundred and fifty years. Some are
informal or ad hoc groupings of citizens, while others are highly organized and well
funded groups that actively recruit members. Over the past fifteen years civilian
border patrol organizations appear to have proliferated along the U.S.-Mexico border.
Though the reasons for their formation vary, many of the groups were organized in
response to an apparent lack of federal resources at the border and to the significant
increases in illegal entries. Not surprisingly, civilian border patrol groups have
tended to follow the trends of unauthorized migration. In the 1980s and early 1990s,
the majority of these groups operated along the San Diego border, which up to then
had been the flash-point for unauthorized migration. As unauthorized migration was
pushed eastward after the advent of the Prevention Through Deterrence policy and
Operation Gatekeeper in California, a number of civilian border patrol organizations
began to grow along the Arizona border. The following paragraphs further describe
some of the types of civilian operations that have occurred along the border.
Ad Hoc Groups
Examples of ad hoc groups along the border are many and varied, but they tend
to lack a formal organizational structure These groups are typically comprised of
local citizens reacting to increasing numbers of unauthorized immigrants crossing
into the country through their land. For example, in 1997, one rancher near Campo,
California, organized nighttime operations on his property in which volunteers were
equipped with camouflage fatigues and semi-automatic rifles.18 While many civilian
border patrol groups resent the label of vigilantism that some have given them, this
rancher reveled in being characterized as a vigilante: “a vigilante is, by definition,
a citizen upholding the law in the absence of law enforcement. That’s the way we
out here look at it.”19 Also in 1997, ranchers in Eagle Pass, Texas engaged in a
shootout with armed aliens in which more than 30 rounds were fired. Many of the
ranchers in Maverick County, Texas reportedly carried handcuffs and semi-automatic
weapons in order to deter and apprehend unauthorized aliens.20
As unauthorized migration patterns have shifted from California to Arizona, a
number of ad hoc groups of Arizonans have begun operating along the border. For
example, in 2000 an anonymous flyer was posted in public areas around Douglas
inviting volunteers to form posses to track down unauthorized aliens.21 One of the
more known Arizona ranchers to become involved in border operations is Roger
18 The nearby Campo USBP station reportedly saw a 3,000% increase in apprehensions
between 1994 and 1997.
19 Ted Conover, “Border Vigilantes,” New York Times, May 11, 1997.
20 Thaddeus Herrick, “Armed on the Border; Ranchers along Rio Grande take on Illegal
Intruders Themselves,” Houston Chronicle, Nov. 2, 1997.
21 Geoffrey Mohan, “Arizona Ranchers Move to Limit Border Crossings,” The Times Union,
May 28, 2000.
Barnett, who owns a 22,000 acre22 ranch near Douglas. On March 10, 1999, Barnett
and 20 other landowners in the area signed a proclamation which noted “if the
government refuses to provide security, then the only recourse is to provide it
ourselves.”23 Barnett started patrolling his ranch in 1998 and typically dresses in
camouflage and carries a sidearm.24 He claims to have apprehended over 10,000
unauthorized migrants during the course of these patrols.25 Roger Barnett and his
brother, Don, have sometimes been accused of using force to apprehend migrants, a
claim they vehemently deny.26 They were accused of impersonating federal agents
in a suit brought by the human rights organization Border Action Network in 2003,27
one of three suits pending against Barnett in October of 2005.28
Organized Civilian Patrol Groups
In addition to these ad hoc groups, there are a number of more organized groups
operating along the border with the stated goal of addressing the issue of
unauthorized immigration. These groups tend to feature formal organizations that
actively recruit members, raise funds, and issue press releases, in addition to
patrolling the border. The following is a selection of the largest and most organized
of these entities. As with the ad hoc groups above, some of these organized groups
began operating in California and many others have proliferated in Arizona as the
patterns of migration shifted.
Voices of Citizens Together/American Patrol. This organization was
founded in 1992 by Glenn Spencer, one of the leading voices in the civilian patrol
movement.29 Inspired by the race riots that broke out in Los Angeles in 1992,
Spencer formed a neighborhood organization, Valley Citizens Together, that was
subsequently renamed as interest expanded. Spencer launched a newsletter which
linked the various social problems facing Los Angeles, including poverty, violence,
22 Of the 22,000 acres, 15,000 are apparently leased from the state of Arizona, as reported
by: Max Blumenthal, “Vigilante Injustice,” Salon.com, May 22, 2003. This lease was
recently renewed by the state for 10 years with a proviso voiding the contract if any terms
of the lease were violated. As reported by: Arthur Rotstein, “Border Rancher’s State Lease
Renewed Despite Protests,” Associated Press, Oct. 25, 2005.
23 Max Blumenthal, “Vigilante Injustice,” Salon.com, May 22, 2003.
24 Alan Zarembo, “Coyote Inc.,” Newsweek, Aug. 30, 1999.
25 Michael Riley, “Tired of Flow of Migrants, Vigilantes Go Out on Patrol,” Denver Post,
Oct. 20, 2003.
26 See Bill O’Reilly, “Impact: Chaos on the Mexican Border,” Fox News Network, July 14,
27 Arthur Rotstein, “Ranchers Accused of Impersonating Federal Agents Near Border Sued,”
Associated Press, Dec. 10, 2003.
28 Arthur Rotstein, “Border Rancher’s State Lease Renewed Despite Protests,” Associated
Press, Oct. 25, 2005.
29 Michael White, “Illegal Immigrants Becoming Target of Violence as Resentment Grows,”
The Associated Press, Aug. 23, 1993.
illiteracy, and white flight, to illegal immigration.30 Spencer’s organization was an
active participant in the “Save our State” movement, a loose coalition of anti-illegal
immigration organizations that advocated for the mass deportation of illegal
immigrants. The movement culminated with Proposition 187, which would have
expelled illegal immigrants from public schools and denied them health and social
services. Voices of Citizens Together gathered 40,000 signatures to help put
Proposition 187 on the ballot; in 1994 Proposition 187 passed as a referendum with
widespread support. However, a federal district court halted implementation of
Proposition 187 in 1994, and California Governor Gray Davis subsequently pursued
mediation in 1999 rather than an appeal, which effectively nullified its provisions.31
American Border Patrol. In 2002, Glenn Spencer moved to Arizona and
formed this organization to actively patrol the border. American Border Patrol uses
cameras, sensors, “hawkeye” spotters, and unmanned aerial vehicles32 to identify
suspected border intruders. Once identified, the intruders are videotaped whenever
possible and reported to the USBP. Video of their aerial patrols of the border are33
also available on the organization’s website. According to Spencer, American
Border Patrol differs from other civilian patrol groups operating in Arizona in that
their volunteers do not carry firearms and do not attempt to detain migrants, but
rather focus on documenting border intrusions.34 Despite this disclaimer, however,
Spencer was sentenced to a year of probation and fined $2,500 for recklessly firing
a gun after a neighbor discovered bullets had been fired into her garage door.35
Ranch Rescue. This organization was formed in Texas by Jack Foote in June
of 2000 with the goal of protecting the property rights of ranchers along the border.
Foote, who moved to the state in 1997, reportedly does not own any property in
Texas, however.36 According to published accounts, Foote drew the inspiration for
his organization from accounts of migrant captures undertaken by Roger Barnett.
Ranch Rescue drew a significant amount of press coverage due to its penchant for
actively recruiting volunteers, organizing pseudo-military style operations featuring
armed camouflage-clad volunteers, and allegedly using violence. In 2002, Soldier
of Fortune magazine helped Ranch Rescue assemble “a heavily armed tactical team
30 Patrick J. McDonnell, “Brash Evangelist: Thanks to an Obsession with Immigration,
Glenn Spencer has Ended up on a List of Hate Groups. Is His a Courageous Voice in the
Wilderness — or the Whine of a Hatemonger?,” The Los Angeles Times Magazine, July 15,
31 McDonnell, “Brash Evangelist.”
32 The organization has outfitted three model airplanes with cameras which are designed to
home in on ground sensors triggered by people walking in the desert.
33 American Border Patrol, available at [http://www.americanborderpatrol.com/].
34 Austin Bunn, “Homegrown Homeland Defense,” New York Times Magazine, June 1,
35 Tyche Hendricks, “Militias Round Up Illegal Aliens in Desert,” San Francisco Chronicle,
May 31, 2004.
36 Thomas Korosec, “Soldiers of Misfortune: Ranch Rescue Finds its Welcome Mat
Withdrawn,” Houston Press, Sept. 18, 2003.
of 20 for Operation Hawk,” near Nogales, Arizona, which led to the capture of 280
pounds of marijuana.37 In March of 2003, two Ranch Rescue volunteers were
arrested for allegedly assaulting two Salvadoran migrants. One of these volunteers,
Casey Nethercott, is currently serving a five-year prison sentence in connection with
the incident, for being an ex-felon in possession of a firearm. The jury deadlocked
on the more serious charge of assault that stemmed from the incident. Foote and
Nethercott also received a $1.35 million default judgment against them for not
responding to a civil lawsuit filed over the incident.38 In August of 2005, Casey
Nethercott’s ranch in Douglas, Arizona was given to the two Salvadoran migrants in
a settlement stemming from the default judgement.39
Civil Homeland Defense. Chris Simcox drew his inspiration for founding
this group during a two and half month long camping session in the Arizona desert
after the terrorist attacks of 9/11, during which he claimed to have observed five
paramilitary groups of drug dealers. Incensed by the border’s insecurity, Simcox
moved to Tombstone, Arizona and bought the local newspaper, The Tumbleweed, for
$50,000. Civil Homeland Defense began in 2003 when Simcox and some friends
offered to serve as private security guards for ranchers in the area. According to
Simcox, the only membership requirement was a concealed gun permit from the state
of Arizona in order to “screen out the criminals and loonies.”40 Civil Homeland
Defense volunteers carry searchlights and portable radios in addition to their guns,
and typically do not dress in camouflage.41 In 2004, Simcox was convicted of
carrying a concealed weapon on federal land and lying to a federal law enforcement
officer about it; he was sentenced to two years of probation.42
The Minuteman Project
Founded by retired California businessman James Gilchrist in October of 2004,
the “Minuteman Project” was organized with the help of Chris Simcox and placed
hundreds of volunteers along a 64-mile stretch of the Arizona border for the month
of April 2005. In press interviews leading up to the deployment of the Minuteman
volunteers, Gilchrist sought to distance himself from the activities of Roger Barnett
and Ranch Rescue by stressing that the goal of the project was not to make
37 Mark Lisheron, “Vigilante Chief Longs to Lead U.S. Border War; Armed Group Says
Missions Defend Property; Others Call Campaign ‘Virulent Racism,’” Austin American
Statesman, Nov. 2, 2003.
38 Jesse Borgan, “With Vigilante Jailed, Officials Have ‘One Less Worry,’” San Antonio
Express-News, May 4, 2005.
39 Beth DeFalco, “Border Ranch Turned Over to Immigrant Border Crossers,” Associated
Press, Aug. 19, 2005.
40 Dan Baum, “Patriots on the Borderline; Toting Guns, Cameras, and Mighty Convictions,
Small Bands of Americans are Patrolling the Southwest in Search of Illegal Immigrants,”
Los Angeles Times, Mar. 16, 2003.
41 Michael Riley, “Tired of Flow of Migrants, Vigilantes Go Out on Patrol,” Denver Post,
Oct. 20, 2003.
42 Thaddeus Herrick, “Armed on the Border; Ranchers Along Rio Grande Take on Illegal
Intruders Themselves,” Houston Chronicle, Nov. 2, 1997.
apprehensions: “[w]e will be recording. We’ll chronicle all these reports that are
going to Border Patrol from our outposts and our foot patrols and our air wing. We
will record whether the Border Patrol is reacting or not, whether there has been an
interception or not.”43
During April 2005, approximately 900 volunteers from across the country
gathered near the border in Arizona to take part in the Minuteman Project. The
Project, in part, was designed to demonstrate that an increase in the manpower placed
directly along the United States-Mexico border could successfully reduce the number
of illegal aliens entering the country. The volunteers were unpaid and traveled to
Arizona at their own expense. The volunteers were instructed by their leaders to
“assist” USBP agents patrolling the border, and not to do anything other than alert
the proper authorities of the presence of illegal aliens. Though some of them carried
rifles or other firearms, the volunteers were instructed to “abide by the rules of no
contact and no engagement,” never confront the illegal aliens, use their weapons only
in self defense, and comply with the laws of Arizona.44 Organizers told volunteers
that they could not chase, restrain, or talk to the suspected illegal aliens. The
volunteers were organized into groups of four to eight people. These groups set up
observation posts on or near the border, and notified the Border Patrol when aliens
were seen crossing the border illegally.45
According to Chris Simcox, Minuteman Project volunteers “assisted” the
Border Patrol with locating and apprehending 349 aliens entering the United States
illegally. Also, no injuries or major incidents were reported, though even proponents
agree that “[i]t is dubious that these standards could be maintained over time with an
unpaid volunteer organizational structure.”46 According to published reports, “Mr.
Gilchrist said the number of aliens crossing where Minuteman volunteers had set up
observation posts dropped from an average of 64,000 a month to an expected 5,000
this month.”47 The Project also claimed that the Border Patrol reported a 65% drop
from the previous year during the same time period in the number of apprehensions
of illegal aliens in the Naco section of the border. The USBP contested this claim.
43 Sean Hannity and Alan Colmes, “Interview With James Gilchrist,” Fox News: Hannity
and Colmes, Jan. 26, 2005.
44 The Minuteman Project, Standard Operating Procedure (hereafter cited as “Standard
Operating Procedure”) available at [http://www.minutemanhq.com/hq/sop.php].
45 Congressional Immigration Reform Caucus, Results and Implications of the Minuteman
Project (May 18, 2005) (hereafter referred to as “Field Report”). The Field Report,
according to a Press Release by Congressman Tom Tancredo, is a draft document that does
“not fully represent the views of Immigration Reform Caucus members. The report merely
was meant to describe the trip taken by staff members who observed the Minutemen
operation.” See Press Release, Rep. Tom Tancredo, Statement on Draft Minutemen Report
(May 23, 2005) available at [http://tancredo.house.gov/pressers/0523TancredoIssues
StatementOnDraftMi nutemenReport.htm] .
46 Field Report, at 4. The report did note two violations of these rules. In two separate
incidents volunteers interacted with illegal immigrants in such a way as to give rise to a
question of “possible illegal detention,” but both local government and the Border Patrol did
not find any evidence of wrongdoing.
47 Jerry Seper, “Minutemen Join New Organization,” Washington Times, Apr. 21, 2005.
Agency officials pointed out that while apprehensions in eastern Arizona, where the
Minutemen were deployed, declined from 24,842 in April of 2004 to 11,128 in April
of 2005, apprehensions in western Arizona increased from 18,052 in April of 2004
to 25,475 in April of 2005.48 DHS officials attributed the decrease in apprehensions
in eastern Arizona to increased patrolling on the Mexican side of the border by
Mexican police and military authorities.49 At the same time, USBP officials also
stated that the Minutemen volunteers were disrupting their operations by unwittingly
tripping sensors deployed along the border, forcing agents to respond to false
al arm s . 50
After the completion of the thirty-day test period, the organizers and supporters
of the Project called on Congress for the immediate “deployment of the National
Guard, and/or Homeland Security Grants for authorized State Defense Forces to
assist the Border Patrol.” Some supporters estimate that 36,000 additional personnel
are needed to “seal” the U.S-Mexican border.51 Today, the Minuteman Project has
split into two loosely related wings: Chris Simcox leads the Minuteman Civil
Defense Corps, which focuses on continuing to place volunteers along the border,
while James Gilchrist has focused on using the Minuteman Project to expose
employers who hire unauthorized immigrants.
The Minuteman Civil Defense Corps has expanded the project to the other U.S.
— Mexico border states — Texas, New Mexico, and California — as well as certain
states bordering Canada. For example, the group conducted a border watch operation
in Texas during the month of October 2005,52 and a month long observation of the
Canadian border near Blaine, Washington in November 2005. According to
published reports, 31 volunteers participated in the northern border observation
which yielded one citation when an American crossed over to Canada illegally to
impress his girlfriend by calling her from Canada. The city-councils of Bellingham
and Blaine passed resolutions protesting the group’s presence.53
The other wing of the Minuteman Project has targeted employers in the interior
of the country. One prominent example of their activities occurred in Herndon,
Virginia where the local municipality decided to fund a day-laborer center in order
48 Gail Gibson, “For Minutemen, Chance to Patrol a Porous Border,” Baltimore Sun, May
49 Michael Coronado, “Minutemen Monitor, Get Monitored at Arizona-Mexico Border,”
Orange County Register, Apr. 14, 2005.
50 Arthur Rotstein, “Border Patrol Complains That Volunteers Are Tripping Sensors Used
to Detect Illegal Crossers,” Associated Press, Apr. 5, 2005.
51 Field Report, at 4. According to the Report, a successful permanent replication of the
Minuteman Project would require an average 12-24 enforcement personnel per mile, or
around 36,000 total additional personnel to adequately secure the entire 2,000 mile southern
52 Minuteman Civil Defense Corps, Minuteman Corps Texas, available online at
[ h t t p : / / www.mi nut emanhq.com/ t x / ] .
53 Jon Gambrell, “Minuteman Project Wraps Up On Northern Border,” Bellingham Herald,
Nov. 9, 2005.
to move day laborers from the convenience store parking lot where they had been
congregating to a more controlled location behind a former police station. A
Minuteman chapter opened in Virginia in October of 2005, and volunteers had been
photographing employers hiring unauthorized immigrants to work as day-laborers at
the convenience store twice a week. The chapter plans to send volunteers to the new
publicly financed day-laborer center every day, turning the information over to
“several local and state agencies as well as the Internal Revenue Service.”54 The
group has focused its efforts on the companies that hire day laborers and are allegedly
operating without the proper licenses.
The Minuteman Project has launched several other activities since its inception.
In April 2006, the Project formed the “Secure Our Borders” campaign, which
consisted of 6,500 civilian volunteers stationed along 800 miles of U.S. border with
Mexico and Canada.55 And, from September 11, 2006, through November 7, 2006,
the Project will be participating in “Operation Sovereignty,” an observation and
reporting vigil near Laredo, Texas. Minuteman volunteers began constructing
security fences and vehicle barriers on private lands along the southwest border in
May 2006. The Minutemen now also operate a radio station, KLAV 1230AM, near
Civilian Patrols and the Law
Civilian border patrols do not operate under the color of a federal or state
authorization because they are (presumably) not federal or state actors (see later
discussion). As private persons, members of civilian border patrols do not appear to
need statutory “authority” to conduct their volunteer border activities. Such persons
would be operating much like a volunteer “neighborhood watch,” albeit a very
proactive one regarding an issue of primarily federal concern. The federal
government often receives volunteer information and services from the public
without an explicit authorization. The right of private persons to assemble, carry
weapons, report potentially illegal activities and to protect their property and
themselves in some instances stems independently under a combination of
constitutional and common law rights and privileges.
The First Amendment protects the freedom of expression and the right of
persons to peacefully assemble and to petition the government for a redress of a
grievance. While some may question whether the Minuteman Project is a peaceful
assembly (since they are armed and performing quasi law enforcement functions),
there seemed to be few, if any, transgressions. There is also little doubt that the
54 Timothy Dwyer, “Where Herndon Day Laborers Go, The Dogged Minutemen Will
Follow,” The Washington Post, Dec. 13, 2005, p. B01.
55 Jerry Seper, “Minutemen Announce April Border Campaign,” The Washington Times,
Feb. 17, 2006.
56 Details of new campaigns can be viewed at [http://www.minutemanhq.com/hq/].
Minuteman Project has formed, in part, to send a message to law makers that more
needs to be done to secure the border. At common law, persons generally enjoy[ed],
among others, the right to defend their property and themselves in cases of intrusion
or attack. Private persons were (are) also allowed to make “citizen’s arrests” to
facilitate the prompt suppression of certain offenses. Citizen arrest authority
generally permits a private person to arrest another without a warrant for
misdemeanors that amount to a “breach of the peace” and felonies committed in his
Some of these rights and privileges have been codified in state law. For
example, state law often outlines when a private person may make an arrest, carry
weapons, or use self-defense and deadly force. These laws would be pertinent to a
civilian attempting to perform enforcement-related measures along the border.
Because these laws generally vary from state to state, civilian groups that operate in
more than one state must also be mindful of gradations in state law. Appendix 1
summarizes the state laws of Arizona, California, New Mexico, and Texas governing
the authority of a civilian to make arrests, claim self-defense, and use deadly force.
State militia laws may also provide authority for state residents to conduct border
enforcement activities or to participate in certain law enforcement type activities at
the direction of the governor.58
Though civilian border patrols do not appear to operate under any explicit
federal or state authorization, they must still abide by state and federal laws. At the
federal level, because there are many national parks along the southwest border that
illegal aliens often cross, civilian border patrol groups must be mindful of laws that59
make it a crime to trespass or carry a firearm on federal lands. Also, there have
been some reports that certain civilians and organizations have attempted to take on
a more official law enforcement appearance, using uniforms, badges and official
sounding names.60 These actions may run afoul of federal laws that make it a crime
57 See 5 Am Jur. 2d §56 Arrest. After making an arrest, a private citizen generally has a duty
to promptly deliver the alleged offender to the proper authorities. Illegal entry is a
misdemeanor and a felony under the INA (§275), while illegal presence (§237) is a civilth
violation. Some proposals in the 109 Congress (H.R. 4437, §203) would have made illegal
presence a felony. For a discussion on the implications of criminalizing unlawful presence,
see CRS Report RS22413, Criminalizing Unlawful Presence: Selected Issues, by Michael
58 See, e.g., Ariz. Rev. Stat. §26-172 (authorizing the governor to mobilize the national guard
or the unorganized militia upon proclamation of an emergency or whenever deemed
necessary); Ariz. Rev. Stat. §26-174 (authorizing the governor to establish an armed force
for the safety and protection of the lives and property of the citizens of Arizona, if the
national guard of Arizona or major portion thereof is called into active federal service).
59 See, e.g., 36 C.F.R. §2.4 (prohibiting weapons in National Parks).
60 Jessica Conaway, Comment, Reversion Back to a State of Nature in the United States
Southern Borderlands: A Look at Potential Causes of Action to Curb Vigilante Activity on
the United States/Mexico Border. 56 MERCER L. REV. 1419, 1425 (2005).
to impersonate an officer or employee of the United States.61 Relatedly, civilian
border patrol groups must also abide by any special requirements that exist on Indian
reservations and territories that are near the border.62 Civilian border volunteers must
also be cautious not to impede or interfere with the work of federal immigration
officials in violation of federal law.63
With respect to state crimes, assault, false arrest or imprisonment, trespass,
disorderly conduct, and manslaughter are among offenses that could arise in the
context of a civilian conducting quasi law enforcement duties along the often violent
international border. For instance, while immigration officers would be authorized
under the INA to enter onto private land within twenty-five miles of the border,
private persons could be trespassing if they do not have proper permission. State law
may also regulate the use or possession of a firearm or make it a crime for some
people to use or carry a weapon. As previously mentioned, members of American
Border Patrol and Ranch Rescue were arrested and fined for firearm violations.
Some states also have anti-militia laws that might be applicable.64 For instance, in
Texas, a body of persons (other than the regularly organized state militia) may “not
associate as a military company or organization or parade in public with firearms.”65
Members of civilian patrol groups could also be liable for civil damages under
state tort principles. For example, there are reportedly several pending lawsuits
against citizens who patrolled the border for assault, battery, infliction of emotional
distress, and other torts.66 As private citizens, they would probably not be protected
by the immunity, or treated with the typical deference, that is often granted to law
enforcement and government personnel. However, civilians would not necessarily
be bound by the same federal and constitutional restraints (e.g., Fourth Amendment)
that are generally imposed on government officials (see discussion below). This is
not to say that they may use an unreasonable amount of force. As several courts have
concluded, only force that is reasonable under the circumstances may be used to
restrain the individual arrested pursuant to a citizen’s arrest.67 The amount of force
that is reasonable is generally a fact-sensitive question.
61 18 U.S.C. §912 and §913.
62 The following four Indian reservations are contiguous with the Mexican border: (1) the
Tohono O’odham Nation (AZ); (2) the Cocopah Tribe (AZ); (3) the Kickapoo Traditional
Tribe (TX); and (4) the Quechan Tribe of the Fort Yuma Indian Reservation (CA/AZ).
There are also two tribes that are very close but not actually on the border: the Campo Band
of Diegueno Mission Indian tribe in California and the Ysleta Del Sur Pueblo tribe in Texas.
63 18 U.S.C. §111. As previously discussed, there were some reports of tripped sensors by
64 See, e.g., Ariz. Rev. Stat. §26-123(a) (makes it a felony for a person, partnership, or
corporation to maintain troops under arms). See also Conaway, 56 MERCER L. REV. 1419,
65 Tex. Gov’t Code Ann. §431.010.
66 Border Action Network, Civil Lawsuits Pending Against Roger, Donald and/or Barbara
Barnett, available at [http://www.borderaction.org/images/3%20lawsuits.pdf].
67 See, e.g., Whitten v. Cox, 799 S.2d 1 (Miss. 2000); Carter v. State, 506 S.E.2d 124 (Ga.
The activities of civilian border patrols may present some novel legal issues for
the courts, particularly if civilian volunteers attempt to do more than merely report
illegal entries (e.g., search and arrest). For example, the extent to which a civilian
may use a state’s citizen’s arrest authority to apprehend, detain, and arrest an illegal
alien is not clear.68 Moreover, the fact that civilian border groups are proactively
putting themselves in harm’s way may affect claims of self-defense.69 Immigration
law is also distinctly a federal issue and many experts still disagree on the extent to
which even state and local law enforcement officers may enforce immigration law.70
Notwithstanding these unresolved legal matters, civilian border patrol volunteers
have relied on and continue to rely on many of the rights and state laws described
above to address individuals coming onto private property from across the border and
to report alleged illegal entries to the USBP.
Legal and Policy Issues
While President Bush has asked the public to be vigilant and mindful of
suspicious activities, he and others in the Administration have been wary of citizen
patrols for a number of reasons, including the potentially violent nature of such
activities along the border. Still, as the Minuteman Project and the other groups
detailed in this report demonstrate, many civilians have continued to gather along the
border region irrespective of the admonitions. In Congress, many have introduced
bills that would authorize and enhance the use of civilians for immigration purposes
along the border. The enhanced use of civilian patrols along the border could present
a number of legal and policy issues due to the law enforcement nature of the mission
and the overwhelming federal responsibilities in immigration matters. The following
paragraphs explore a number of these issues, including (1) whether there is authority
to “deputize” private persons to enforce immigration law; (2) the extent to which
private persons might be considered federal immigration officers; (3) whether a large
presence of civilians at the border could interfere with or otherwise impact on the
USBP’s ability to execute its mission; and (4) whether the presence of armed
civilians at the border will create a situation that could lead to further violence.
As earlier paragraphs illustrated, the Secretary of DHS appears to have the
authority under the INA to authorize any employee of DHS, the federal government
or in certain circumstances, a state or local law enforcement agency to enforce
68 There is some case law, however, discussing the authority of Customs and immigration
officers to make warrantless citizen’s arrests for felonies or misdemeanors, while the
respective officer lacks authority (i.e., not in jurisdiction or is off-duty). See, e.g., Unitedth
States v. Sealed Juvenile 1, 255 F.3d 213 (5 Cir. 2001) (off-duty Customs agent stopping
a person for driving erratically was found to be a valid citizen’s arrest).
69 Generally, the right of self-defense may not be invoked by an aggressor. See 5 AM. JUR.
70 See CRS Report RL32270, Enforcing Immigration Law: The Role of State and Local Law
Enforcement, by Lisa M. Seghetti, Stephen R. Viña, and Karma Ester.
immigration law. As such, the Secretary of DHS would seem to have the authority
to shift personnel from DHS or request the help of other federal or state departments
and agencies to address illegal immigration concerns along the international borders.
Indeed, DHS regulation 8 C.F.R. §287.5(b) already authorizes a number of
immigration personnel to patrol the border in addition to the Border Patrol, including
(1) special agents, (2) seaport immigration inspectors, (3) seaport adjudications and
deportation officers, (4) supervisory and managerial personnel for those listed above,
and (5) immigration officers who need the authority to patrol the border under INA
§287(a)(3) as designated by the Secretary. Despite these existing authorities, there
has been a recent push to authorize or “deputize” civilians to enforce immigration
There does not appear to be, however, authority under the INA for the Secretary
of DHS to authorize or deputize civilians to enforce immigration law. INA
regulations seem to further reflect this absence of authority.71 The apparent lack of
authority to formally deputize civilians with all the powers of an immigration officer,
of course, does not prevent the federal government from cooperating with civilians.
DHS, for instance, has stated that “it would accept and investigate information from
the Minuteman like it does from the general public.”72 Indeed, DHS currently
receives aid from civilian volunteers through Citizen Corps, an organization
coordinated by DHS which helps plan preparedness activities nationwide. DHS
officials still recognize that the border presents an extremely dangerous environment
and that they would “never encourage members of the public to conduct law
enforcement activities on their own.”73
Civilians, however, might be allowed to perform activities that fall short of the
actual full enforcement of immigration law, in which case authorization in statute
might not be required. For example, a current Citizen Corps program known as
Volunteers in Police Service (VIPS) builds on local programs in which civilian
volunteers help local police departments to perform non-sworn functions, freeing up
police officers to perform vital front-line duties in times of emergency.74 CBP
officials have indicated some support for the use of volunteers at the border ranging
from clerical work to “something akin to a Border Patrol auxiliary,” where they
would organize and train the individuals to provide support.75 DHS, however, later
71 See 8 C.F.R. §2.1 and §103.1 (authorizing the Secretary to delegate INA authority to any
DHS employee or employee of the federal government).
72 Dominic Bonaiuto, “Minutemen to Begin Surveillance of Laborers,” The Times
Community, (Oct. 26, 2005) available at [http://www.timescommunity.com/site/tab5.cfm?
74 Volunteers may be allowed to do, among other things, the following: check homes of
residents on vacation; enter data; assist with typing reports, filing, answering phones, and
other office tasks; participate in search-and-rescue activities; and, assist with fingerprinting.
75 “Securing our Borders: What have we Learned from Government Initiatives and Citizen
Patrols?” Hearing before the House Committee on Government Reform, 109th Cong. (May
stated that there were no plans by the Department to use civilian volunteers.76
Without more information on the types of activities or organizations that might be
developed for border enforcement activities, it is difficult to determine whether
legislative action would be required. Nonetheless, it seems feasible to argue that the
more oversight provided by the federal government and the more law enforcement
support assumed by volunteers, the better the argument that explicit authorization
may be needed.
Some have suggested that there is already appropriate authority for organizing
volunteers to support border security under 32 U.S.C. §109(c), which allows a state
to maintain a State Defense Force (SDF).77 An SDF is a volunteer state force, in
addition to its National Guard, that is regulated under state law, and is under the
command of the governor.78 Members of an SDF generally do not receive pay for
training but may be paid for active duty under state control. SDFs do not receive
federal funds but may use armories, train on military installations, and receive in-kind
support, provided the state complies with federal standards for the National Guard.79
Proponents argue that border security would be an ideal mission for a State Defense
Force, and that an SDF is an effective vehicle to integrate the active participation of
volunteers into the mission. States, however, may be reluctant to use such authority
without more federal support, particularly because of the federal nature of
immigration, additional administrative burdens, and existing budget constraints. The
states of Arizona and New Mexico, for example, declared state emergencies to
become eligible for federal support after reportedly exhausting available state
resources combating illegal immigration.80
12, 2005) at pp. 45 and 72 (statements by Robert C. Bonner, Commissioner, U.S. Customs
and Border Protection).
76 Jeremiah Marquez, Associated Press, Gov’t Backs off Idea of Civilian Patrol (July 21,
77 James Jay Carafano, The Heritage Foundation, Backgrounder, Safeguarding America’s
Sovereignty: A “System of Systems” Approach to Border Security (Nov. 28, 2005).
78 SDFs generally support National Guard units or replace them as they are called to active
duty. For example, during WWII, roughly 200,000 state guardsman (with War Dep’t
support) replaced the mobilized National Guard. Some SDFs were recently used in the
wake of the Hurricane Katrina disaster. Twenty-three states currently maintain SDFs,
totaling about 14,000 nationwide. See James Jay Carafano & John R. Brinkerhoff, The
Heritage Foundation, Backgrounder, Katrina’s Forgotten Responders: State Defense Forces
Play a Vital Role (Oct. 5, 2005).
80 State of Ariz., Declaration of Emergency, Arizona — Mexico International Border
Security Emergency (Aug. 20, 2005) available at [http://azgovernor.gov/dms/upload/
DE~081605~AZMEXBorderSecurity.pdf]; N.M. Exec. Order No. 2005-040 (Aug. 12, 2005)
available at [http://www.governor.state.nm.us/press.php?id=119].
Private Actors or Agents of the Government?
Although organizers of the Minuteman Project have prohibited volunteers from
detaining or searching the illegal aliens that they encounter, questionable situations
have happened81 or could easily occur during exigent circumstances. A search by a
private person, however, does not implicate the protections afforded by the Fourth
Amendment against unreasonable searches and seizures unless he acts as an
“instrument or agent of the government.”82 For a private person to be considered an
agent of the government, courts generally look for two critical factors: (1) whether
the government knew of and acquiesced in the intrusive conduct, and (2) whether the
private actor’s purpose was to assist law enforcement efforts rather than to further his
own ends.83 The first part of this test examines the government’s level of
involvement, while the second looks to the citizen’s motivations and independence
from a governmental purpose. Volunteers acting as government agents could raise
liability issues for the federal government and the volunteer and complicate issues
of authority. The following paragraphs provide more detail on these prongs using the
Minuteman Project as an example.
With respect to prong one, courts have generally held that a private citizen’s acts
are not acts of the government if based on merely “de minimis or incidental contacts
between the citizen and law enforcement agents prior to or during the course of a
search or seizure.”84 Thus, a general exchange of information, or mere cooperation
with authorities would probably not make the Minutemen agents of the government.85
But, if it is perceived that the volunteers acted on the direction or suggestion of
immigration officials, the first prong of the government actor test could be met.86
Moreover, if immigration officials take an active role in encouraging or assisting the
Minuteman volunteers in some way, such as by offering rewards, this might qualify
81 The Minuteman Project included two potential infractions by volunteers that could have
been perceived as detentions. See Field Report, at 8.
82 United States v. Steigler, 318 F.3d1039 (11th Cir. 2003). See generally 6A C.J.S. Arrests
by Private Persons §11 (2004). The Fourth Amendment establishes that a search or seizure
conducted by a governmental agent must be reasonable, and that probable cause support any
judicially granted warrant. The Supreme Court has interpreted the Fourth Amendment to
include a presumptive warrant requirement on all searches and seizures conducted by the
government, and has ruled that any violations of this standard will result in the suppression
of any information derived therefrom. See Katz v. United Sates, 389 U.S. 347 (1967).
83 Steigler, 318 F.3d 1039.
84 United States v. Miller, 688 F.2d 652, 657 (9th Cir. 1982).
85 United States v. Koenig, 856 F.2d 848 (7th Cir. 1988) (finding a previous history of
cooperation and contact between the Federal Express and the DEA insufficient to create an
agency relationship); United States v. Mendez-de-Jesus, 85 F.3d 1, 2-3 (1996) (finding the
seizure and transportation of two illegal aliens to the police station insufficient to create an
agency relationship because there was no suggestion that the government initiated or
participated in the citizen action).
86 United States v. Pierce, 893 F.2d 669, 673 (5th Cir.1990) (finding determinative the fact
that there was no evidence that the package in question was opened at the direction, or even
the suggestion, of the DEA).
as sufficient government involvement.87 Satisfying this prong of the test will vary
with the amount and type of contact between the government and the Minutemen,
and who initiated the contact. From what has been reported, it appears that the USBP
is not engaging in activities that normally satisfy this first prong.
As to the second element, courts generally examine whether the private actor
had the “mental state” of a government employee88 or again analyze the exercise of
governmental power over the private entity, to determine whether “the private entity
may be said to have acted on behalf of the government rather than for its own, private
purposes.”89 Here, there is little doubt that the Minuteman volunteers wanted to help
the federal government; indeed, they claim that they are doing “the job the
government should be doing.”90 But there is also some indication that the volunteers
might be motivated by more personal goals — from protecting personal property to
creating a type of symbolic or civil movement.91 In cases where dual motives were
shown, some courts have concluded that being motivated in part by a desire to aid
law enforcement does not in and of itself transform the person into a government
agent.92 Ultimately, this analysis would hinge on the state of mind of the accused.
Interactions with the USBP. During the month of April 2005, when the
Minuteman Project deployed its volunteers along the Arizona border, USBP Chief
David Aguilar noted that “anything that taxes our resources takes away from our93
capability to secure our nation’s borders.” The Minuteman Project’s volunteers
inadvertently set off sensors and other motion detectors as they manned their posts
along the border. When these sensors are tripped, regardless of whom or what trips
87 See, e.g., United States v. Walther, 652 F.2d 788 (9th Cir. 1981) (finding that an airline
employee who opened a package with the expectation of being paid by the DEA satisfied
the requisite mental state of an “instrument of the government,” and, thus, implicated Fourthth
Amendment protections); United States v. Souza, 223 F.3d 1197, 1201-02 (10 Cir. 2000)
(observing that the police must “instigate, orchestrate, encourage or exceed the scope of the
private search to trigger application of the Fourth Amendment” for a private search).
88 Walther, 652 F.2d at 791 (concluding that because the employee had the “mental state”
of a government agent, his search was subject to Fourth Amendment limitations).
89 Koenig, 856 F.2d at 849.
90 Standard Operating Procedure.
91 Id. (“Our efforts will change the course of history and ignite others to stand with courage
to make a change. Many are waiting for the outcome and will themselves be motivated with
a new sense of activism; we will be leaders who will make a difference, role models who
will influence future generations.”).
92 United States v. Smith, 383 F.3d 700, 705 (8th Cir. 2004) (search by FedEx employee
motivated by intent to aid the officers and desire to ensure that her company was not being
used as a vehicle in the drug trade found to be a private search).
93 “Border Security Technology,” Joint Hearing before the Subcommittee on Immigration,
Border Security, and Citizenship and the Subcommittee on Terrorism, Technology, andth
Homeland Security, 109 Cong., (Apr. 28, 2005) (Testimony of David Aguilar, U.S. Border
them, USBP agents are deployed to investigate. A potential issue could include
whether the existence of civilian border patrol groups may inhibit the USBP’s ability
to execute its mission effectively. It has been suggested that possible policy options
could include some coordinating mechanism that would allow volunteer
organizations to avoid inadvertently setting off sensors. CBP officials, for example,
have suggested that training and organizing the volunteers or allowing them to do
clerical work could be helpful.
Interactions with Aliens. Apart from the widely reported incident involving
Ranch Rescue, there have been no credible reports of civilian border patrol
organizations engaging in violence against migrants. However, every year there are
numerous reports of migrants being abused by individuals near the border.94
Although no major incidents occurred during the Minuteman Project’s initial month-
long observation of the U.S. border, even proponents note that it is a real possibility
with a predominantly volunteer organization whose members have not been screened.
Many of these civilian patrol groups (including a reported 40 percent of the
Minutemen) carry firearms. In performing their duties, however, civilian patrol
groups and other members of the public also provide humanitarian and medical
assistance to the aliens crossing the border. A possible issue might be whether an
enhanced civilian presence at the border could create the potential for violent
confrontations between civilian patrol groups and aliens. On the other hand, more
civilians patrolling the border may also increase the presence of humanitarian
Violence at the Border. A number of armed smuggling organizations
operate along the U.S.-Mexico border. The surge in violence and smuggling along
the border was cited by New Mexico Governor Bill Richardson and Arizona
Governor Janet Napolitano when they issued state of emergency declarations for
counties bordering on Mexico. Additionally, there have been a number of widely
reported incidents in the past years concerning armed incursions into the United
States by persons from Mexico. According to published reports, “the crossings
involved police officers or soldiers in military vehicles and were among 231 such
incidents recorded by the U.S. Border Patrol in the last 10 years.”95 DHS Secretary
Chertoff confirmed that these incursions have been taking place during a press
conference, but suggested that they had decreased in number over the past few years
and that there was no way to know whether the individuals involved were in fact
linked to the Mexican military or law enforcement.96 A possible issue could involve
whether deploying civilian patrols to the border would impinge on the safety of the
94 See Embassy of Mexico, “Mexico condemns any and all types of violence against
Mexican migrants on the border,” Jan. 2, 2006, available at [http://www.embassyof
mexico.org/eng/index.php?option=com_content&task=view&id=160&Itemid=2] and U.S.
Commission on Civil Rights, “Summary of Migrant Civil Rights Issues Along the Southwest
Border,” Dec. 2003, available at [http://www.usccr.gov/ pubs/migrant/summary.htm].
95 Richard Marosi, Robert J. Lopez and Rich Connell, “Reports Cite Incursions on U.S.
Border,” Los Angeles Times, Jan. 26, 2006.
96 Todd Gillman, “Chertoff Confirms Mexican Troop Incursions into U.S. Homeland Chief
Says Hundreds of Crossings Aren’t Cause for Concern,” Dallas Morning News, Jan. 19,
individuals involved or create issues of liability, given the number of armed groups
operating along the border. If these civilian patrols are armed, as some of the
Minutemen volunteers were, the potential for confrontations between civilian patrols
and armed smugglers could quickly escalate.
A number of legislative proposals were introduced in the 109th Congress that
would have created civilian border patrols or enhanced their operations, but only one
measure received any significant legislative action. The DHS appropriations bill, as
passed by the House, contained a provision that prohibited DHS from providing a
foreign government with information relating to the activities of organized volunteer97
civilian groups operating along the southwest border, unless required by treaty.
This language was added to the House bill in response to reports that the USBP was98
informing the Mexican government of the Minutemen’s positioning. The Senate
bill did not include the measure, and it was ultimately deleted during conference.99th
Other bills introduced in the 109 Congress would have created organizations of
volunteers, state peace officers, or retired law enforcement officers to assist the
USBP in carrying out their duties or would have authorized states to create militias
to guard the border.100 As Congress continues to explore avenues to assist the USBP,
similar proposals may be introduced in the 110th Congress.
97 H.R. 5441 EH, §544.
98 151 CONG. REC. H3372 (daily ed. June 6, 2006) (statement of Rep. Kingston); Sara A.
Carter, “U.S. Tipping Mexico to Minuteman Patrols,” DailyBulletin.com (May 9, 2006)
available at [http://www.dailybulletin.com/news/ci_3799653].
99 See H.Rept. 109-699, at 180; P.L. 109-295.
100 See the Illegal Immigration Enforcement and Empowerment Act (S. 1823); the Engaging
the Nation to Fight for Our Right to Control Entry Act (S. 2117); the Border Security and
Modernization Act of 2005 (S. 2049); the Protecting America Together Act of 2005 (H.R.
3704); the Border Protection Corps Act (H.R. 3622); the Homeland Security Volunteerism
Enhancement Act of 2005 (H.R. 4099); and the State Defense Force Improvement Act of
Appendix 1. Table of Selected State Authorities
tizen’s A private person may make anA private person may arrest another: Not Codified. A person may arrestA private citizen may make an arrest
tarrest: (1) when the person to be(1) for a public offense committed oranother upon good-faith, reasonablefor a felony or offense against the
arrested has in his presenceattempted in his presence; (2) when thegrounds that a felony had been or waspublic peace if they are committed in
committed a misdemeanorperson arrested has committed a felony,being committed, or a breach of thehis presence. Tex. Code Crim. Proc.
amounting to a breach of the peace,although not in his presence; or (3) whenpeace was being committed in theAnn. art. §14.01.
or a felony; or (2) when a felonya felony has been in fact committed, andperson’s presence. State v. Johnson, 930
has been committed and he hashe has reasonable cause for believing theP.2d 1148 (N.M. 1996).
reasonable grounds to believe thatperson arrested to have committed it.
iki/CRS-RL33353the person to be arrested hasCal. Penal Code §837.
g/wcommitted it. Ariz. Rev. Stat. §13-
-A person is justified in threateningResistance sufficient to prevent theNot codified. The essential elementsA person is justified in using force
://wikior using physical force againstoffense may be made by the party aboutnecessary before a self-defenseagainst another when and to the degree
httpanother when a reasonable personwould believe that physical force isto be injured: (1) to prevent an offenseagainst his person, or his family, or someinstruction can be given are: (1) anappearance of immediate danger ofhe reasonably believes the force isimmediately necessary to protect
immediately necessary to protectmember thereof; and (2) to prevent andeath or great bodily harm to thehimself against the other’s use or
himself against the other’s use orillegal attempt by force to take or injuredefendant; (2) the defendant was in factattempted use of unlawful force. Tex.
attempted use of unlawful physicalproperty in his lawful possession. Cal.put in such fear; and (3) a reasonablePenal Code §9.31.
force. Ariz. Rev. Stat. §13-404.Penal Code §693. person would have reacted in a similar
manner. New Mexico v. Martinez, 622
Any necessary force may be used toP.2d 1041 (N.M. 1981).
protect from wrongful injury the person,
his property, or his family. Cal. Civ.
f A person is justified in using deadlyHomicide is justifiable when: (1)Homicide is justifiable to defend one’sA person is justified in using deadly
dly force against another if such aresisting murder, a felony, or greatlife, family, or property or when there isforce against another: (1) if he would
person would be justified in usingbodily injury upon any person; (2)a “reasonable ground” to believe thatbe justified in using self defense (under
threatening or physical force andcommitted in defense of habitation,there is an imminent danger of an injury§9.31); (2) if a reasonable person in the
when a reasonable person wouldproperty, or person, against one whoto another, or when “necessarilyactor’s situation would not have
believe that deadly physical force ismanifestly intends or endeavors, bycommitted” in attempting to apprehendretreated; and (3) when and to the
immediately necessary to protectviolence or surprise, to commit a felony;a person who one witnessed committingdegree he reasonably believes the
himself against the other’s use or(3) committed in the lawful defense of aa felony, or “in necessarily and lawfullydeadly force is immediately necessary
attempted use of unlawful deadlyperson or family member when there iskeeping and preserving the peace.” N.M.to protect himself against the others use
physical force. Ariz. Rev. Stat. §13-reasonable ground to apprehend a designStat. Ann. §30-2-7.or attempted use of unlawful deadly
iki/CRS-RL33353405.to commit a felony or to do some greatbodily injury, and imminent danger offorce or to prevent the other’simminent commission of various
g/wsuch design being accomplished; or (4)named felonies (e.g., murder). Tex.
s.ornecessarily committed in attempting, byPenal Code §9.32.
leaklawful ways and means, to apprehend
://wikiany person for any felony committed, orin lawfully suppressing any riot, or in
httplawfully keeping and preserving the
peace. Cal. Penal Code §197.