AELE LAW LIBRARY OF CASE SUMMARIES:
Civil Liability of Law Enforcement Agencies & Personnel
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False Arrest/Imprisonment: Consular Rights
A Mexican citizen
convicted of murder could not show that he had a right to relief based
on officials' failure to advise him of his rights, under the Vienna Convention
on Consular Relations, to consular notification and assistance. The prisoner
based his claim on a 2005 Presidential Memorandum that directed state courts
to give effect to a 2004 decision of the International Court of Justice
(ICJ) concluding that the United States had violated the rights of 51 Mexican
nationals then on death row, including the petitioner, by failing to comply
with the Vienna Convention. The U.S. Supreme Court subsequently rejected
claims similar to the petitioner's, and held that neither the Presidential
Memorandum nor the ICJ decision preempted state procedural limits on filing
successive habeas corpus petitions. The prisoner was barred from raising
the issue involved sine he had previously done so and had been denied relief
on the merits of the claim. In re Martinez, #S141480, 2009 Cal. Lexis 6016.
A Jamaican citizen arrested in 1998 could not pursue a claim for damages based on the failure of officers to inform him of his rights under the Vienna Convention on Consular Relations to contact Jamaican consular officials concerning his arrest. The Convention does not create private claims for damages, and the rights created by it belong to the nations that are parties to the treaty. Jeremiah v. Burnette, No. 08-13310, 2008 U.S. App. Lexis 22072 (Unpub. 11th Cir.).
An immigrant from Jamaica claimed that his rights under Article 36 of the Vienna Convention were violated during his arrest on drug charges when he was not advised of his right to have the Jamaican consulate informed of his arrest, and that this also violated his constitutional rights. The court ruled that both the U.S. government and the state of New Jersey had sovereign immunity on the plaintiff's claims, and that also that there are no private or individual rights or remedies under the Vienna Convention enforceable in U.S. courts by individuals who were arrested in the U.S. McPherson v. U.S.A., No. 07-6119, 2008 U.S. Dist. Lexis 63630 (Unpub. D.N.J.).
An arrestee who is a citizen of Uruguay claimed that law enforcement personnel violated his rights under the Vienna Convention on Consular Relations treaty by failing to inform him about or provide him with the right to contact the Uruguayan consulate about his arrest. The court ruled that article 36 of the treaty did not confer individual rights on an arrestee that could be judicially enforced in U.S. courts, and the rights stated in the treaty were instead meant to aid in the exercise of "consular functions." The court therefore rejected his claims for damages under 42 U.S.C. Sec. 1983. Gandara v. Bennett, No. 06-16088, 2008 U.S. App. Lexis 11088 (11th Cir.).
In a case (Avena and Other Mexican Nationals) involving 51 Mexican nationals confined in U.S. prisons, the International Court of Justice (ICJ) ruled that the U.S. had violated Article 36(1)(b) of the Vienna Convention on Consular Relations by failing to provide them with notice of their rights to contact the Mexican consulate after they were taken into custody. The ICJ, therefore, held that each of these individuals were entitled to review and reconsideration of the U.S. state court convictions, even if they had failed to comply with otherwise applicable state rules concerning the challenging of those convictions. In a prior decision, Sanchez-Llamas v. Oregon, No. 04-10566, 548 U.S. 331 (2006), the U.S. Supreme Court ruled that the Convention did not negate the need to apply state rules. The President of the United States, however, issued a memo stating that the U.S. would "discharge its institutional obligations" and have state courts follow the ICJ decision. The Plaintiff in the immediate case, incarcerated in Texas, then filed a Texas state court habeas application challenging his capital murder conviction and death sentence because of the failure to inform him of his rights under the Vienna Convention. The U.S. Supreme Court has now held that neither the ICJ decision nor the President's memo are directly enforceable federal law which would pre-empt state limits on the filing of successive habeas petitions. The court further found that a treaty such as the Vienna Convention is not binding domestic law in the U.S. when Congress has not passed statutes to implement it, except if the treaty itself conveys an intention that it be "self-executing." The plaintiff's habeas petition was therefore properly dismissed. Medellin v. Texas, No. 06-984, 2008 U.S. Lexus 2912.
Further proceedings ordered by federal appeals court as to whether the failure of police officers or other officials to inform a foreign national (a citizen of India) arrested for aggravated battery with a firearm of his right to consular notification under Article 36 of Vienna Convention on Consular Relations violated his rights. The appeals court ruled that the issue should be resolved under the federal civil rights statute 42 U.S.C. Sec. 1983, but did not expressly rule on whether a violation of the Vienna Convention could give rise to a private remedy. Jogi v. Voges, No. 01-1657, 2007 U.S. App. Lexis 5713 (7th Cir.).
346:154 City could be sued for violation of civil rights for failure to allow a German visitor arrested to contact the German consulate as required by treaty. Standt v. City of New York, No. 99-Civ-110008, 153 F. Supp. 2d 417 (S.D.N.Y. 2001).
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