Monthly Law Journal Article: Use of Force Against Immigration Detainees, 2011 (1) AELE Mo. L. J. 301.
     An immigration detainee claimed that medical personnel failed to give him pain medication that he was prescribed after hand surgery, inhibiting his rehabilitation and causing permanent injury to his hand. Rejecting this claim, the appeals court noted that the medication had to be taken with food, and that the detainee failed to benefit from the medical treatment provided because he refused to eat the food he was dissatisfied with. His reason for doing so was that he wanted halal meals containing meat, for religious reasons, but he was provided with vegetarian meals that did not violate his right to religious freedom. Any denial of pain medication was based on his refusal to eat. Adekoya v. Chertoff, #11-1990, 2011 U.S. App. Lexis 12685 (Unpub. 3rd Cir.). Editor's Note: As an immigration detainee, the plaintiff was entitled to the same protections as a pretrial detainee, those provided by the due process clause of the Fourteenth Amendment. In this case, the court found that the medical care provided did not constitute punishment that violated due process.
     An excessive force claim filed by a federal immigration detainee held in a county jail presented two legal issues, according to a federal appeals court: "What provision of the Constitution should this court use to analyze a federal immigration detainee's claim of excessive force? And does a county's failure to adopt a prophylactic policy with a standard of care higher than what the Constitution requires suffice, by itself, to suggest deliberate indifference to the Constitution's protections against excessive force?" The court concluded that due process, rather than the Fourth or Eighth Amendment, provided the proper legal standard to analyze such an excessive force claim by immigration detainees who did not challenge the lawfulness of their detention, and that, in order to create a triable issue of fact on the use of excessive force in such a case, the detainee must do more than show that the county failed to adopt the "most protective possible policy" against the application of force. The detainee was removed from his cell and placed in a restraint chair after becoming disruptive in his cell. A member of the certified emergency response team ("CERT") dealing with him then allegedly proceeded to taser him "at least three times" while he was restrained. The trial court found this use of force excessive, and awarded the detainee $100,000 in damages against the officer who used the taser against him. Summary judgment was granted, however, to the county, on the basis that all the evidence suggested that the tasering was no "more than a random act or isolated event which occurred outside of the policies and procedures implemented by" the county sheriff. The award against the individual officer was not appealed. Applying the due process standard, the appeals court rejected the claim that the officer's supervisor, who had not himself been personally involved in the use of force, should also be held individually liable. It also rejected claims that the supervisor or sheriff, in their official capacities, should be liable for failure to adequately train CERT team members. "The undisputed facts show that the county trained jailers to use tasers only if and when an inmate should become violent, combative, and pose a direct threat to the security of staff. The record also shows that" the officer knew he was acting in defiance of this policy when he tasered the detainee. Far from exhibiting deliberate indifference to the detainee's due process rights against the use of excessive force or causing his injury -- "the county actively sought to protect those rights" and it was only the officer's improper actions, taken in defiance of county policy, that caused the detainee's injuries. The appeals court rejected the argument that the county's "failure to enforce a prophylactic policy imposing a standard of care well in excess of what due process requires," banning the use of a taser on an immigration detainee, was "enough by itself to create a triable question over whether county officials were deliberately indifferent to the Constitution." Porro v. Barnes, No. 10-6002 2010 U.S. App. Lexis 2324 (10th Cir.).
     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 since 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 Colombian citizen in a Georgia prison could not pursue, under the Alien Tort Statute, 28 US.C. Sec. 1350, a claim for violation of his rights under Article 36 of the Vienna Convention on Consular Relations (VCCR) concerning the right to have the consulate of his country notified of his incarceration. The fact that he sued under the Alien Tort Statute rather than under 42 U.S.C. Sec. 1983 did not alter the result. In the prior Gandara v. Bennett, #06-16088, 528 F.3d 823 (11th Cir. 2008) decision, the court held that the VCCR did not create rights or remedies enforceable through a § 1983 lawsuit. Lopez v. Wallace, #08-15307, 2009 U.S. App. Lexis 8721 (Unpub. 11th Cir.).
     The U.S. Supreme Court in Boumediene v. Bush, No. 06-1195, 2008 U.S. Lexis 4887, ruled that aliens detained at Guantanamo Bay, Cuba as enemy combatants after their capture in Afghanistan or elsewhere overseas are constitutionally entitled to pursue claims for habeas corpus, and found that the procedures provided in a 2005 statute for review of the detainees' status are inadequate and constitute an unconstitutional suspension of the writ of habeas corpus. In another case, Munaf v. Geren, No. 06-1666, 2008 U.S. Lexis 4888, decided the same day, June 12, 2008, the Court ruled that the habeas corpus statute applies to U.S. citizens held overseas by U.S. military forces, such as in Iraq, even if those forces are operating as a component of an multinational coalition. The U.S. citizens being detained had traveled voluntarily to Iraq and are alleged to have committed crimes there. The Court further ruled, however, that the particular plaintiffs in that case were not entitled to relief to enjoin the U.S. from transferring them to the custody of Iraqi authorities for criminal prosecution.
     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.
     A Muslim inmate who was an Egyptian citizen failed to show that the vegetarian meal plan offered him violated any of his personal religious beliefs, and a nutritional analysis of the food offered indicated that it satisfied recommended dietary allowances. Additionally, the plan offered was created after consultation with a Muslim clergyman. The court also found that the prisoner did not have an unqualified or absolute right to send confidential mail from the prison to the Egyptian embassy or consulate, so that the alleged refusal to allow him to do so could not be the basis of a civil right claim. Sefeldeen v. Alameida, No. 05-15809, 2007 U.S. App. Lexis 13508 (9th Cir.).
     A man born in Qatari, who was lawfully in the U.S., and who has been detained without charges since 2003, when President Bush designated him as an "enemy combatant," was ordered released by a federal appeals court. The court, by a 2-1 vote, ruled that holding civilians as detainees without charges for an unlimited period of time could result in "disastrous consequences for the Constitution, and the country." The court also found that there was no evidence that the detainee had been engaged in the use of arms against the U.S. on a battlefield or in a combat zone, and was therefore not an enemy combatant. The U.S. government was ordered to release him, within a reasonable time, from military custody. He could still, the court noted, be subjected to either criminal charges, if any were brought, or to deportation proceedings. Al-Marri v. Wright, #06-7427, 2007 U.S. App. Lexis 14109 (4th Cir.).