Dear Doc:

How can federal “troops” (aka officers from Customs and Border Protection) just show up in cities to protect courthouses and other federal property, launch tear gas, and arrest people? Isn’t there something about limited jurisdiction and federalism that makes such things illegal?


Anonymous Protestor

Dear AP:

You might think that these officers showing up in Portland, Kansas City, Chicago, Philadelphia and other places would be an over extension of federal jurisdiction, especially since the Customs and Border Protection (CBP) officers usually work at the, you know, borders, right? Well, it turns out that you (and the Doc) would be wrong, big time.

Some years ago, the Doc was visiting Tucson, Arizona, and wanted to see Tombstone, the site of the famous Shootout at the OK Corral. Well, Tombstone was fun, in a tacky, touristy sort of way, but the Doc had to skedaddle back to Tucson to give a speech, so in mid-afternoon, he and the missus hopped in the old rental car and headed North. Mind you, nobody had gone anywhere near the US-Mexico border (this was long before any walls, but still, the closest approach was 30 miles.) About 25 miles North of Tombstone, on a dark desert highway (well, ok, it was afternoon, so it was not at all dark), traffic came to a halt. The Doc slowly approached the hold-up, and saw that it was caused, not by the hoped-for re-enactor bandits on horseback, but by several law enforcement officers, dressed in green. Rolling the window down, the Doc saw that they had CBP patches. The Doc wondered why he was being stopped at a roadblock nowhere near the border. He considered using his best fake Spanish accent to address the officers, when the missus (remember her?) strongly advised that in order to give the aforementioned speech in Tucson, rather than in some rural Arizona pokey that evening, the Doc should do his best to restrain himself.

After a few cursory questions and a look around the car (including peering through the windows), the officers waved the Doc through the checkpoint, and without further incident, returned to Tucson, dinner and a speech ensued. The Doc, however, could not get the perceived slight of a random stop, far from the border, out of his head. So, doing what any good lawyer would do, he looked it up on the Internet.

It turns out that CBP says (and courts have agreed) that it may operate anywhere within 100 miles of a United States external boundary.  They define boundary a bit more expansively than most folks, too.  The Fourth Amendment to the Constitution protects us against unreasonable searches. At borders, however, the government has promulgated regulations such that this protection does not exist. The 100 mile formula means that CPB can do what it wants. (Some courts, however, have started to push back, at least a bit when it comes to searches of electronic devices).

How many of us are subject to CBP searches? According to the American Civil Liberties Union (ACLU), about 2 of every 3 people living in the United States!  About 200 million people may be searched, and then arrested, even though the Constitution seems to say otherwise.

So now you know how CBP officers can just show up pretty much anywhere.

Have a question about intellectual property law? The Doc (and the attorneys at LW&H) are way better at answering those than they are at avoiding suspicionless stops out in the desert. Give them a call.

Until next month,

The (still free to come and go) Doc. 

— Lawrence Husick, Esq.

*Originally posted on August 27, 2020