9th Circuit rules man can’t sue Border Patrol over wrongful arrest

A man held in jail for 40 days after Border Patrol agents improperly performed a drug test has no right to sue, a federal appeals court ruled Tuesday.

In a divided decision, the majority of the three-judge panel of the 9th Circuit Court of Appeals acknowledged that the actions of one of the agents “may have been negligent and even abusive.” That includes threatening Armando Nieves Martinez that if he didn’t confess to transporting methamphetamine in the windshield washer solution in his vehicle that his whole family would be incarcerated.

But Judge Karen Schreier, writing for the majority, said the officers — and the government — were protected from civil suit because they were performing a discretionary function.

Tuesday’s ruling drew a sharp response from appellate Judge William Fletcher.

He agreed that the decision to test the windshield washer fluid was discretionary. But Fletcher said if the agents had followed the written instructions that came with the drug test they would have realized immediately that the washer fluid contained no drugs and Nieves never would have been detained beyond the initial stop.

Attorney David Abney, who represents Nieves, said the majority misinterpreted the law and vowed to appeal.

Court records show that Nieves, a commercial grape grower, left Caborca, Son. in August 2011 with his wife and two children headed to Chandler to go shopping.

They went through one Border Patrol checkpoint, showing their visas. A drug detection dog did not alert.

At a second checkpoint the agent said the dog detected an odor. Based on that, the vehicle was pulled over but nothing was immediately found.

The agents then drove the vehicle to the Ajo Border Patrol station for a more thorough search, including checking the windshield wiper fluid. At least one field test indicated the possible presence of methamphetamine.

That resulted in Nieves being interrogated. After he denied any knowledge of drugs, one agent told him that if he did not confess his wife would go to a prison in Kentucky, his son would go to a federal prison and his minor daughter would be placed into government custody.

That resulted in a confession, one he later recanted, telling agents he had done so only so the agents would release his family.

Only later did actual laboratory tests show there were no drugs in the windshield fluid. And when no drugs were found after further examination of the vehicle, the charges were dismissed — after he had spent 40 days in custody.

He then filed suit.

Schreier agreed that the test kits counseled against using them to test liquids. But because they did not preclude such use, she said, the agents did nothing wrong.

But Fletcher said that glosses over some crucial facts.

He said the first kit used by agents does say that liquid could be tested by wetting paper with the liquid, drying the paper, and putting the paper in a test pack. But there was something else in the instructions.

“The choice of paper is critical,” those instructions read. “NEVER use brown paper, hand towels or newsprint.”

“Contrary to the instructions, Agent Mendez used a paper hand towel to perform Test A,” Fletcher wrote.

And the problems are even worse, the judge said.

He said that test, if properly performed can indicate the presence of methamphetamine or amphetamine. But Fletcher pointed out that the test instructions themselves say a second test, Test U, is needed to determine which of the two drugs — if either — had been detected. And the agent did not do the second test.

“If Mendez has performed Test U, the test would have revealed that neither methamphetamine nor amphetamine was present in the windshield washer fluid,” the judge said. And Nieves never would have been locked up for 40 days waiting for the final lab results.

The judge also said that the questioning technique that resulted in the confession — after he had denied having any drugs — were questionable.

Fletcher also pointed out something not in the majority opinion: the background of the person Border Patrol arrested.

He noted that Nieves is the patriarch of a Mexican family with a prosperous grape-growing business in Sonora, a business with an annual gross income of about $3 million. And he said that Nieves and his family typically travel across the border five or six times a year.