Indiana Law Review


The Untouchables: Protections from Liability
FOR Border Searches Conducted by U.S. Customs

IN Light of the Passage of the Good Faith
Defense in 19 U.S.C. § 482(b)

Nathaniel Saylor*

Introduction

Due to the increased public focus on security observable since the attacks of
September 1 1, 2001, there is an ongoing debate concerning the proper balance

to be struck between respecting civil rights and the role of the government in

protecting the nation from terrorism. The growing concern about who and what
is entering the country has provided proponents of stronger police powers with

support in their efforts to increase that power. Nowhere is this debate more
obvious than at the nation's airports and border crossings. The public is
interested in seeing people and contraband linked to terrorism stopped before

they enter the country. The bulk ofthe responsibility for protecting these public
interests falls on the U.S. Customs Service ("Customs"). Customs officially

transferred to the Department of Homeland Security on March 1, 2003.' The
division of Customs that is charged with protecting the nation's borders and

collecting duties on imported merchandise is now referred to as the Bureau of
Customs and Border Protection.^ Customs performs these duties by searching

individuals and merchandise that enter the country. Of course, to carry out that
mission Customs employees must make important decisions about the balance
that must be struck between respecting civil rights and protecting the nation's

borders. Customs has the authority to detain and search individuals and their

property when entering the country, and because ofthe important public policies
at issue, there is little doubt that Customs should have significant leeway in

making those decisions. For this reason. Customs has been granted protections

from liability by both Congress and the courts.

To understand the scope of these protections, an illustration is in order.
Imagine that you are a female returning to the United States after a trip to

Jamaica. After your flight arrives, a Customs narcotic detection dog "alerts" to

* J.D. Candidate, 2005, Indiana University School of Law—Indianapolis; M.B.A.
Candidate, 2005, Kelley School of Business; B.M., 2001, Ball State University.

1

.

H.R. Doc. No. 108-32, at 4 (2003).

2. According to the "Reorganization Plan Modification for the Department of Homeland

Security," the U.S. Customs Service has been renamed to the "Bureau of Customs and Border

Protection. Id. Further, the Homeland Security Act makes it clear that all references to any agency

in a statute, regulation, directive, or delegation that was in place before the transfer will continue

to apply to that agency, regardless of name changes, after the switch to the new department. Pub.

L. No. 107-296, § 1512(d), 116 Stat. 2135 (2002). Therefore, all statutory protections afforded

to employees ofthe former Customs Service will now apply to employees ofthe Bureau ofCustoms

and Border Protection. Throughout this Note, all references to Customs will be understood as

references to the Bureau ofCustoms and Border Patrol, which also includes former members ofthe

Border Patrol.



276 INDIANA LAW REVIEW [Vol. 37:275

your luggage. You are subsequently taken to a room where a pat down search is
conducted by a female Customs inspector, revealing what the inspector interprets
as a bulge in your pelvic region. The inspector then performs a partial strip
search of your person. No drugs are found on you, or in your luggage, and you
are released without further incident. On these same facts, a court recently, and
not surprisingly, held that the inspector involved was not liable for damages for
violation of the plaintiffs constitutional rights.^ This result, which will be
explained in more detail throughout this note, is not particularly surprising, or
disturbing, because legitimate policies exist tojustify the result. One such policy
is to allow the government to protect its borders as the sovereign.'* Without this
protection, terrorist contraband and drugs would enter this country unchecked.
However, when considering how quickly such an intimate search can cross the
boundaries of acceptance, the question arises as to whether Customs should be
granted more protections in order to avoid liability for possible digressions. The
relevance ofthis question is especially appropriate in the aftermath ofthe events

of September 1 1 , 2001 , and the ensuing "war on terror." Congress answered the
question: more protection is exactly what Congress granted to Customs in
August 2002.

In the summer of 2002, the Trade Act of 2002 became law.^ Section 341 of
the Act amends 19 U.S.C. § 482 by adding subsection (b). Before the
amendment, 19 U.S.C. § 482 allowed any authorized person to board or search
vessels to search for any merchandise which was subject to duty and/or being
imported into the country contrary to law.^ This section gave Customs inspectors

the ability to conduct searches of "any vehicle, beast, or person"^ at the nation's

borders which they suspect has merchandise that is subject to duty, or that is

being imported contrary to law.^ The additional subsection grants persons

conducting searches under § 482's authority immunity from liability in suits

stemming from such searches if the person acts in good faith. ^ The provision is
a radical departure from the traditional protections granted to Customs and was
hotly debated in Congress. The amendment is the first instance in which
Congress has enacted a statute that changes the standard for qualified immunity

in a constitutional tort case.'°

On its face, this amendment seems like it would be a radical shift from
traditional ideas of liability and would go far in giving Customs inspectors a
license to use and abuse their authority to search for contraband. Surprisingly,

or perhaps disturbingly, because of the array of protections already available to

Customs, the amendment will likely only be necessary in a limited number of

3. Saffell V. Crews, 183 F.3d 655, 659 (7th Cir. 1999).

4. The sovereign can protect itself by stopping and searching people and property entering

the country. Id. at 657 (citing United States v. Ramsey, 431 U.S. 606, 616, 619 (1977)).

5. Pub. L.No. 107-210.

6. 19 U.S.C § 482(a) (2003).

1. Id.

8. Id

9. Id § 482(b).

10. 148 Cong. Rec. H5980 (daily ed. July 26, 2002) (statement of Rep. Conyers).



2003] BORDER SEARCHES 277

cases—those with egregious facts. As previously illustrated, Customs already
enjoys numerous protections, with little concern of liability. This begs the
question of what kind of conduct the passage of the recent amendment will end
up protecting that was not protected under the previous framework. Indeed, the
defense ofqualified immunity, to be discussed later, already protects "all but the

plainly incompetent or those who knowingly violate the law."''
Part I ofthis Note provides an overview ofthe protections already available

to both Customs and its employees for searches prior to the enactment of the
Trade Act of2002. In Part II of this Note, I discuss good faith in general and the
amendment to 19 U.S.C. § 482. The legislation itself gives no indication as to
what will constitute good faith; therefore, I speculate on some factors that courts
would be likely to consider as proofofgood faith. Finally, I conclude by arguing
that the amendment is overreaching, and because ofthe factual inquiries involved
in establishing good faith, it will only be necessary when the pre-existing defense
ofqualified immunity fails, giving those incompetent and malicious individuals

mentioned above one more opportunity to escape liability.

It is important to point out that this Note does not focus on searches of
merchandise at sea ports and warehouses. The analysis centers around searches
of individuals at airports and border crossings. Having said that, it is also

important to note that 1 9 U.S.C. § 482 does give Customs the authority to search

vessels and warehouses at sea ports. Therefore, all of the defenses to be

discussed will be available to inspectors in suits arising from these latter types

of searches. However, because of the more prevalent concern over individual
civil rights that has arisen since September 11, 2001, this Note focuses on
personal searches.

I. Statutory Protections FROM Liability

There exist a variety of avenues to seek redress from the government for

harms caused by the government. The Federal Tort Claims Act (FTCA) allows
suits against the government for some tortious conduct, while suits for violation
of Fourth Amendment rights can be brought under Bivens.^^ As this section will
illustrate, a recovery against the government under the FTCA is highly unlikely
in a case involving Customs.

A, Federal Tort Claims Act

The FTCA represents a dramatic waiver ofthe sovereign immunity enjoyed
by the government. Under the FTCA, the government is liable for the actions of
its employees if the employee can be held liable under the law ofthe state where

the claim arose. '^ One would assume that the FTCA would be a powerful

1 1

.

Courson v. McMillian, 939 F.2d 1479, 1487 (1 1th Cir. 1991) (quoting Malley v. Briggs,

475 U.S. 335,341 (1986)).

1 2. Bivens v. Six Unknown Named Agents ofFed. Bureau ofNarcotics, 403 U.S. 388 ( 1 97 1

)

(holding that the performance ofa search that does not comply with the requirements ofthe Fourth

Amendment creates a cause of action for the aggrieved party).

13. 28 U.S.C. §2672(1994).



278 INDIANA LAW REVIEW [Vol. 37:275

weapon for a person who was detained by Customs unjustly or whose property
was damaged during a search by Customs. However, the FTCA has a number of
exceptions, some ofwhich apply to Customs and protect Customs from much of
the liability that would normally be associated with these searches.

1. Discretionary Function Exception.—One exception to the FTCA that
seems to be invoked more than any other is the discretionary function exception.
This provision exempts the United States from FTCA liability for claims that are
based upon the exercise, performance, or failure to exercise or perform any
discretionary function or duty by a federal agency or employee, whether or not

the discretion involved is abused. '"^ The purpose of the discretionary function
exception is to protect legislative and administrative decisions with social,

economic, and political policyjustifications fromjudicial second-guessing.'^ Not
only are decisions establishing programs and implementing regulations protected,

also protected are decisions by employees in exercising discretion allowed by
those regulations.'^ This purpose seems to be directly related to Customs'

decision of whether or not to search an individual, because that decision is an

administrative decision backed by social policy (the policies ofpreventing entry

of illegal contraband and protecting citizens from terrorist acts). Whether a court
will find that Customs' decision to search an individual is protected by the

discretionary function exception will differ depending on the jurisdiction in

which the claim is adjudicated.'^ Wherever the claim is adjudicated, at least one

fact seems clear, the discretionary function exception does not protect conduct

that violates a legal mandate.'^ Therefore, a plaintiffcan still recover for a search

that is found to violate some established legal rule, even if a court finds that the

Customs employees were performing a discretionary function.
Perhaps the most difficult part of applying the discretionary function

exception is determiningjust what is a discretionary function. What factors will

14. Id. § 2680(a).

15. OTerrell v. United States, 253 F.3d 1257, 1266 (1 1th Cir. 2001) (citing United States

V. Gaubert, 499 U.S. 315, 323 (1991)).

1 6. Gaubert, 499 U.S. at 323-24. "[I]f a regulation allows the employee discretion, the very

existence of the regulation creates a strong presumption that a discretionary act authorized by the

regulation involves consideration of the same policies which led to the promulgation of the

regulations." Id. at 324.

17. See, e.g.. Nurse v. United States, 226 F.3d 996, 1002 (9th Cir. 2000) (stating that claims

for false imprisonment, invasion of privacy, and negligence do not seem to be protected by the

discretionary function exception); Caban v. United States, 671 F.2d 1230, 1233 (2d Cir. 1982)

(holding detention of suspect at international airport did not "involve a choice between competing

policy considerations"). But see, e.g., Attallah v. United States, 955 F.2d 776, 784 (1st Cir. 1992)

("[AJccording to the statute and regulations, the agents are not obligated to stop and search every

passenger. This function, we believe, is a discretionary function as defined by § 2680 of Title 28

of the United States Code."); Jackson v. United States, 77 F. Supp. 2d 709, 714-15 (D. Md. 1999)

(holding detention by Customs officials involved policy considerations and fell within discretionary

function exception).

1 8. Nurse, 226 F.3d at 1 002 (citing United States Fid. & Guar. Co. v. United States, 837 F.2d
1 16, 120 (3d Cir.), cert, denied, 487 U.S. 1235 (1988)).



2003] BORDER SEARCHES 279

a court consider to determine whether a discretionary function exists? As the
name implies, for the discretionary function exception to apply, there must be
room for the official to exercise discretion in making the decision at hand. The
court in Nurse v. United States^^ set forth a test for determining when an act
qualifies for protection as a discretionary function when it stated:

In order to determine whether the discretionary function exception

applies, the court must engage in a two-step inquiry. First, the court

must determine whether the challenged conduct involves an element of
judgment or choice.^^ Second, if the conduct involves some element of
choice, the court must determine whether the conduct implements social,

economic or political policy considerations.^'

It would appear that the decision of a Customs inspector to select a certain
individual for a search at an airport, or a certain vehicle at a port of entry, would
qualify as a discretionary function under this test, and, as we have seen, some
courts have so held. Therefore, for actions brought under the FTCA, we see that
Customs may avoid liability if a court were to decide that the employees were
performing a discretionary function when determining which passengers to
search.

2. Detention Exception.—Regardless of whether the discretionary function
exception will apply to a search. Customs has an even more powerful weapon
available in the aptly named "detention exception." The detention exception,
also known as the "law enforcement exception," provides protection for Customs
officials from claims "arising in respect of detention of goods by a Customs
officer, as well as certain claims against "any other law enforcement officer."^^

This section has been interpreted to mean that Customs is not liable for any claim
"arising out of the detention of goods.^^ This interpretation has allowed courts
to extend the detention exception beyond cases where Customs damages an
individual's goods during an inspection. The exception has even allowed
inspectors to avoid liability in cases where inspectors have caused physical harm

to citizens so long as the harm occurred incident to a detention of property by
Customs.^'* In Jeanmarie, the detention exception was stretched so far as to

19. 226 F.3d at 996.

20. Id. at 1101 (citing Berkovitz v. United States, 486 U.S. 531, 536 (1988)).

21. Id. (citing Gasho v. United States, 39 F.3d 1420, 1435 (9th Cir. 1994)).

22. 28 U.S.C. § 2680(c) (2000). This exception will continue to apply to Customs searches

at the border, even though the name of Customs has changed, because of the Savings Provision of

the Homeland Security Act which allows references to agencies in statutes to carry over despite the

change in nomenclature. Pub. L. No. 107-296 § 1512(d), 1 16 Stat. 2135 (2002).

23. Kosak v. United States, 465 U.S. 848, 854 (1984). "But we think that the fairest

interpretation ofthe crucial portion ofthe provision is the one that first springs to mind: 'any claim

arising in respect of the detention of goods means any claim 'arising out of the detention

of goods. . . ." Id.

24. Jeanmarie v. United States, 242 F.3d 600, 605 (5th Cir. 2001 ).

[NJotwithstanding the fact that intentional tort claims arising out of arrests are not

barred by § 2680(c), and are in fact permitted by § 2680(h), such claims are barred by



280 INDIANA LAW REVIEW [Vol. 37:275

protect inspectors who physically restrained and injured a man who was looking
for the restroom. The inspectors were searching his car and had told him to stay
where he was. When the man left the inspection area anyway (because he had
a medical condition making his use ofthe restroom urgent), the inspectors found
him and physically restrained him, causing several injuries.^^ However, the court
declined to hold the inspectors or Customs liable for the injuries, arguing that the
detention exception barred recovery.^^ The detention exception is especially
useful for Customs because almost all of Customs' interactions with the public
occur as a result of a search of some type. For this reason, the detention
exception will protect them from liability in the vast majority of suits brought
under the FTCA.

The FTCA protects Customs from liability for the acts of its employees
either when a court determines that the employees were exercising a
discretionary function or when any claims arise during the detention of goods.
As we have seen, the courts are willing to consider an inspection of a vehicle at
the border as a detention,^^ and of course any search at an airport will be

considered as arising out of the detention of goods because luggage is present

and under Customs' control during personal searches. Therefore, it is difficult

to envision a situation where a person being searched by Customs could argue

that the detention exception did not apply. If they could, the court may decide
to apply the discretionary function exception to avoid liability for Customs.

II. Common Law Protections from Liability

Congress is not the only entity that has acknowledged the need for

protections for government actors performing in their official capacities. The
courts have also proved willing to provide protections for these same actors.

Customs inspectors, like most government agents, are entitled to "qualified
immunity" for actions taken in their official capacities. Qualified immunity is

a powerful defense for government employees, discharging liability for all but

the most heinous of actions. Even though qualified immunity allows some
seemingly heinous conduct, there are important policy justifications for its

continued existence. Following is a brief synopsis of the development of

qualified immunity and its general application. A general understanding of
qualified immunity is important before the scope of the "border authority"

the customs-duty exception if the alleged torts arose from the inspection, seizure, or

detention of goods by a Customs agent because such claims involve conduct covered

by § 2680(c).

Id. at 604 (citing Gasho, 39 F.3d at 1433-34).

25. Mat 601-02.
26. Id. at 604. Interestingly, the Jeanmarie court held that 28 U.S.C. § 2680(h), which does

allow certain claims arising from intentional torts by other law enforcement officers

notwithstanding the application of 28 U.S.C. § 2680(c), does not allow claims for those same

intentional torts if the officer involved is a Customs employee to whom the detention exception

would normally apply. Id.

27. Id.



2003] BORDER SEARCHES 281

protection enjoyed by Customs, discussed later, can be fully appreciated.

A. Qualified Immunity

Qualified immunity has developed as a defense to protect government actors

from liability for suits brought against them for actions taken in their official

capacities. The doctrine is not available to government employees who knew or
should have known that the actions they took violated the constitutional rights of
the plaintiff, or if the act was performed with malicious intention to deprive
constitutional rights or cause some other injury.^^ Obviously, qualified immunity
has a subjective aspect. The Supreme Court summed up the standard in 1974:
"It is the existence ofreasonable grounds for the belief formed at the time and in

light of all the circumstances, coupled with good-faith belief, that affords a basis

for qualified immunity of executive officers for acts performed in the course of

official conduct."^^

The Supreme Court altered its reliance on subjective good faith intention in
1982 in Harlow?'^ In that case, the Court listed several costs to society caused

by extended litigation over subjective good faith including "distraction of

officials from their governmental duties, inhibition of discretionary action, and

deterrence ofable people from public service."^' Another important impetus for

this change was to avoid waste ofvaluable government resources to defend mere
allegations.^^ The Courtjustified the change when it stated that by relying on the
objective reasonableness of an employee's actions, which would be measured

against clearly established law, the courts could avoid excessive disruption of

official duties, and allow many insubstantial claims to be resolved in summary
judgment motions." The Court also pointed out that "the public interest in

deterrence of unlawful conduct and compensation of victims remains protected

by a test that focuses on the objective legal reasonableness ofan official ' s acts."^'*

It is this test that courts apply to acts of Customs inspectors for claims arising

against them in the scope of their employment, whether the inspector violated a
clearly established legal mandate at the time of the actions. However, the

question remained as to what was a clearly established legal mandate. The

28. Woodv. Strickland, 420 U.S. 308,322(1975).

29. Scheuer v. Rhodes, 416 U.S. 232, 247-48 (1974).

30. Harlow v. Fitzgerald, 457 U.S. 800 ( 1 982).

31. Mat816.

32.

[W]e conclude today that bare allegations of malice should not suffice to subject

government officials either to the costs of trial or to the burdens of broad-reaching

discovery. We therefore hold that government officials performing discretionary
functions, generally are shielded from liability for civil damages insofar as their conduct

does not violate clearly established statutory or constitutional rights of which a

reasonable person would have known,

/c/. at 817-18.

33. /c/.at818.

34. /f/. at 819.



282 INDIANA LAW REVIEW [Vol. 37:275

Supreme Court shed light on this question five years later in Anderson v.
Creighton?^

The issue in Anderson was whether a federal agent who conducted a search
that violated the Fourth Amendment could be held liable for money damages if
a reasonable officer could have believed that the search did not violate the Fourth

Amendment.^^ The Court noted that the Harlow standard depends on how
generally the legal rule allegedly violated had been defined.^^ The Court realized
that allowing the plaintiff to state the legal rule too broadly would annul the
qualified immunity defense. A complaining party could simply allege that the
defendant had violated a constitutional principle, and since constitutional

principles, such as the protection against unreasonable searches, are largely

established, the claim would have to go to trial and the resources that the Court
enunciated in Harlow would be wasted. In addition to wasting resources by
allowing claims based on very general principals to proceed to trial, an overly

broad interpretation of the relevant legal principles also affects an official's

ability to perform his or her job effectively.^^ In the end, the Anderson Court
determined that the right must be so clearly defined that an official could tell that

her conduct was illegal.
^^

Oftentimes, qualified immunity is referred to as qualified "good faith"

immunity, but that term is misleading since there is no requirement of subjective

good faith. "^^ The Anderson Court did state that when determining whether the

35. 483 U.S. 635(1987).

36. Id. at 636-37.

37. The Court gave the example:

[T]he right to due process oflaw is quite clearly established by the Due Process Clause,

and thus there is a sense in which any action that violates that [cjlause (no matter how

unclear it may be that the particular action is a violation) violates a clearly established

right. Much the same could be said of any other constitutional or statutory violation.

But if the test of "clearly established law" were to be applied at this level of generality,

it would bear no relationship to the "objective legal reasonableness" that is the

touchstone of //ar/ou'.

Id. at 639.

38. Allowing such a general definition of the relevant legal principle would destroy the

balance that had been struck between the interest ofcitizens in vindicating constitutional rights and

in officials performing their official duties because it would make it impossible for officials to

determine when their conduct might give rise to liability. Id. at 639-40 (citing Davis v. Scherer,

468 U.S. 183, 195(1984)).

39.

The contours of the right must be sufficiently clear that a reasonable official would

understand that what he is doing violates that right. This is not to say that an official

action is protected by qualified immunity unless the very action in question has

previously been held unlawful ... but it is to say that in light of pre-existing law the

unlawfulness must be apparent.

Id. at 640 (citing Mitchell v. Forsyth, 472 U.S. 51 1, 535 n. 12 (1985)) (citing Malley v. Briggs, 475

U.S. 335, 344-45 (1986)) (citing Davis v. Scherer, 468 U.S. 183, 191, 195 (1984)).

40. Suissa v. Fulton County, Ga., 74 F.3d 266, 269 (1 1th Cir. 1996) ("Although the cases



2003] BORDER SEARCHES 283

actions ofthe official were objectively reasonable the information that was in the
possession of the official at the time those actions were taken should be

considered. However, this inquiry was not the same as the good faith inquiry that

//ar/owended/' Courts continue to advance and alter the rule stated in Anderson

to determine how to define the legal mandate at issue/^ How a court defines the
question of law at issue is very important to the disposition of a case where

qualified immunity is at issue because of the procedural aspects of such a claim.

In order to fully understand the usefulness ofthe qualified immunity defense,

one must understand its procedural context. As stated previously, many of the
justifications for the defense of qualified immunity are to protect valuable

government resources from time spent defending frivolous lawsuits. For this

reason, qualified immunity is notjust immunity from liability, but also immunity

from suit.^^ Because the principal question in a qualified immunity case is

whether the right allegedly violated was clearly established, and due to the fact
that after Harlow there was no subjective element to the inquiry, these claims are
often very amenable to disposition by summary judgment. This both protects
government officials from extended litigation and saves government resources

in defending such claims. In the end, whether the plaintiff is victorious will

depend on how the court defines the legal question at issue because the court will
then ask if that question has been definitively settled by existing case law."^"*

As illustrated, there are important policy justifications for the qualified
immunity defense. Because ofthesejustifications, the defense is a very powerful

tool that government employees can use to not only avoid liability for acts

committed in their individual capacities, but also to avoid suits by dismissing

meritless claims at early stages of the litigation. Now that we have a basic
understanding of the doctrine of qualified immunity as it applies to most

government officials, we can consider certain other protections that make this
defense even more useful for Customs employees.

B. Border Authority

Even before the passage of the Trade Act of 2002, which granted Customs
inspectors immunity for searches conducted in good faith, Customs inspectors

enjoyed considerably more freedom in performing searches than most other law

sometimes refer to the doctrine of qualified 'good faith' immunity, the test is one ofobjective legal

reasonableness, without regard to whether the government official involved acted with subjective

good faith.") (quoting Swint v. City of Wadley, Ala., 51 F.3d 988, 995 (llth Cir. 1995)).

41

.

Anderson, 483 U.S. at 641 (citing Harlow, 457 U.S. at 815-20). (The court concluded

that "The relevant question in this case ... is the objective . . . question whether a reasonable officer

could have believed Anderson's warrantless search to be lawful. . . . Anderson's subjective beliefs

about the search are irrelevant.") Id.

42. "If case law, in factual terms, has not staked out a bright line, qualified immunity almost

always protects the defendant." Lassiterv. Ala. A&M Univ., Bd. of Trs. 28 F.3d 1 146, 1 150 (11 th
Cir. 1994) (quoting Post v. City of Fort Lauderdale, 7 F.3d 1552, 1557 (1 1th Cir. 1993)).

43. MYc/ie//, 472 U.S. at 526.

44. /^. at 535.



284 INDIANA LAW REVIEW [Vol. 37:275

enforcement officers."^^ The reason for this freedom is past court decisions
holding that the interests of the sovereign in protecting itself outweigh the

privacy interests of an individual at the nation's borders/^ This extended police

power is commonly referred to as the "border authority." What follows is a
summary of current border authority precedent. The border authority does not
modify the qualified immunity inquiry. Instead, the border authority alters the

prime facie showing of a constitutional violation, which is a pre-requisite to the

court considering whether qualified immunity exists. For instance, the rules

governing when a search will be considered unreasonable under the Fourth
Amendment are different for claims arising on the national border than they are
for claims arising on the interior. For this section, it is important to realize that

international airports are considered national borders."*^ Therefore, the

protections of the border authority are extended to Customs' work at these
airports. Again, the border authority does not alter the qualified immunity

analysis, but instead may affect when that analysis will be undertaken.
Many ofthe constitutional claims against Customs inspectors arise under the

Fourth Amendment, which protects against unreasonable searches.*^ To
understand how the border authority affects a finding ofunreasonableness under
the Fourth Amendment, a quick overview of the standard under a "normal"
search is in order. To determine whether a "normal" search (i.e., a search that is
not conducted at the border) violates the Fourth Amendment, the court will

consider the scope of the intrusion, the way it was conducted, what the
justifications are, and the place where it was conducted.'^^ In order to decide
whether a violation of the Fourth Amendment exists, the court weighs public
interest against the Fourth Amendment interests of the individual.^^ The
individual's interest in preserving privacy is well respected by the courts when
the search was conducted in the nation's interior.

In contrast, courts have placed a much higher value on the sovereign's right
to protect itself at the borders than on the individual's right to privacy. The
executive has authority to conduct routine searches and seizures at the borders

without probable cause or a warrant in order to collect duties and prevent the

introduction ofcontraband.^' The courts have determined that to accomplish this

task some ofthe protections that citizens take for granted on the interior have to

45. United States v. Cascante-Bernitta, 71 1 F.2d 36, 37-38 (5th Cir. 1983).

46. UnitedStatesv.Montoyade Hernandez, 473 U.S. 531,539-41 (1985).

47. Almeida-Sanchez v. United States, 413 U.S. 266, 273 (1973).

48. U.S. Const, amend. IV.

49. Bell V. Wolfish, 441 U.S. 520, 559 (1970). 5eefl/5oNew Jersey v. TLO, 469 U.S. 325,

337-42 (1985) (holding what is reasonable depends on all the circumstances and the nature of the

search and seizure).

50. United States v. Brignoni-Ponce, 422 U.S. 873, 878 (1 975). See also Terry v. Ohio, 392

U.S. 1,20-21 (1968).

5 1

.

United States v. Ramsey, 431 U.S. 606, 616-17 (1977). This authority comes from the

Constitution Article 1, Section 8, Clause 3, which grants power to prevent smuggling and to prevent

prohibited articles from entry. Id. at 618-19 (citing United States v. 12 200-Ft. Reels of Film, 413

U.S. 123, 125(1973)).



2003] BORDER SEARCHES 285

be lessened. Specifically, it has been held that routine searches at the border can

be conducted without any requirement of probable cause." Ofcourse, there are
valid reasons for this result, and upon even a little reflection one realizes that if

there was a requirement of warrants at the borders, either trade would grind to a
halt while investigations were conducted, or, more likely, contraband would
simply enter the country unhindered. Obviously either result is unacceptable;

therefore, the courts have placed the balance of interests in the government's

favor as opposed to the individual citizen's right to privacy.

As stated, the Montoya de Hernandez Court determined that routine border
searches did not require probable cause. The obvious next question is, what
border searches are to be considered routine? The cases describe numerous types
of searches performed by Customs, from luggage inspections and pat downs to
strip searches and x-rays. Of course, not all ofthese searches can be considered
routine. Therefore, not all are exempt from the probable cause requirement. Pat

down searches seem to be the most prevalent types of searches that are litigated.
This result is not surprising since pat down searches are a quick and easy way to
search for merchandise. Ofthe circuit courts that have considered the issue, none
have held that a pat down search is a non-routine border search.^^

While legitimate reasons do exist for not requiring probable cause for routine

searches at the border, the courts have granted some powers to inspectors that do

not seem to have as much justification. For instance, the courts have even given
Border Patrol agents the right to racially profile when determining which
vehicles to stop at immigration checkpoints near the border.^"* These troubling

holdings have been justified by the argument that race is a relevant factor in the

search for illegal aliens.^^ While there is obviously a legitimate argument that

race is an important factor in determining whether a person is an illegal alien.

52. United States v. Montoya de Hernandez, 473 U.S. 531 (1985). "[T]he Fourth

Amendment's balance of reasonableness is qualitatively different at the international border than

in the interior. Routine searches of the persons and effects of entrants are not subject to any

requirement of reasonable suspicion, probable cause, or warrant." Id. at 538.

53. Bradley v. United States, 299 F.3d 197, 203 (3d Cir. 2002) (citing United States v.

Bearas, 183 F.3d 22, 26 (1st Cir. 1999)) (citing United States v. Gonzalez-Rincon, 36 F.3d 856,

864 (9th Cir. 1 994)) (stating luggage and pat down searches are routine and there is no requirement

of reasonable suspicion to conduct them).

54. Montoya de Hernandez, 473 U.S. at 538. "Automotive travelers may be stopped at fixed

checkpoints near the border without individualized suspicion even if the stop is largely based on

ethnicity." Id. (quoting United States v. Martinez-Fuerte, 428 U.S. 543, 562-63 (1976)). See also

Martinez-Fuerte, 428 U.S. at 563-64 (stating "even if it be assumed that such referrals are made

largely on the basis ofapparent Mexican ancestry, we perceive no constitutional violation") (citing

Brignoni-Ponce, 422 \J.S. at ^IS).

55. "To the extent that the Border Patrol relies on apparent Mexican ancestry at this

checkpoint . . . that reliance clearly is relevant to the law enforcement need to be served."

Martinez-Fuerte, 428 U.S. at 564 n.l7. Justification for this statement came from the Brignoni-

Ponce Court when it explained that the likelihood of any given person of Mexican ancestry being

an alien was high enough to make race a relevant factor in determining which vehicles to stop for

inspection. 5ng«o«/-Fo/ice, 422 U.S. at 886-87.



286 INDIANA LAW REVIEW [Vol. 37:275

there is also a point to be made that a more compelling public interest should be
required before race is allowed as a criteria for conducting searches that lack

probable cause. Simply trying to stop illegal aliens from entering the country

may not seem like an issue that justifies such a blatant intrusion on an
individual's rights.

Fortunately, and regardless ofhow one feels about the issue, it does not seem
that Customs would be able to build on these prior holdings to make an argument
that racial profiling in any other context is valid. The Brignoni-Ponce Court
specifically stated that Mexican ancestry was a relevant factor for the Border
Patrol to consider in determining whether a vehicle was carrying illegal aliens.^^
Customs would be hard pressed to argue similarly that race is a relevant factor
in determining who is or is not attempting to bring dutiable goods or contraband
into the country illegally.

One interesting side-note is that while these holdings dealing with
immigration checkpoints are based on the border authority, the checkpoints at

issue were not actually at the border. Therefore, Customs inspectors may enjoy
the protections ofthe border authority beyond the actual border. This raises the

question ofwhere Customs authority to conduct searches without probable cause
should cease, but that is a topic for another note.

One issue that is relevant to this note is the question left open by the
Montoya de Hernandez Court, namely what level ofsuspicion, if any, is required
for a non-routine border search. The Court listed strip searches, body cavity

searches, and involuntary x-ray searches as non routine searches.^^ Ofthe courts
that have considered what level of suspicion is required for these more intrusive

searches, they have consistently held that reasonable suspicion is required.
^^

Reasonable suspicion has been defined as "a particularized and objective basis

for suspecting the particular person" ofsmuggling contraband,^^ and requires that

the inspectors have a "particularized and objective basis for suspecting the

particular person of . . . smuggling."^^ Moreover, courts have observed that when
a search progresses from a routine border search to a non-routine search, the

inspector must be able tojustify the progression with reasonable cause as defined

above.^' Therefore, there is no requirement of suspicion for a routine search at

56. Bringoni-Ponce. All \}.S.dXU6-%l.

57. Montoya de Hernandez, 413 U.S. at 541 n.4.

58. Bradley, 299 F.3d at 203 (citing Gonzalez-Rincon, 36 F.3d at 864) (citing United States

V. Yakubu, 936 F.2d 939 (7th Cir. 1991)) (citing United States v. Oyekan, 786 F.2d 832, 837-39

(8th Cir. 1986)) (citing United States v. Carreon, 872 F.2d 1436, 1442 (10th Cir. 1989)).

59. United States v. Cortez, 449 U.S. 411, 417 (1981).

60. Montoya de Hernandez, 473 U.S. at 541-42 (quoting Cortez, 449 U.S. at 417 (1981)).

See also Brent v. Ashley, 247 F.3d 1294, 1300 (1 1th Cir. 2001) (stating "[rjeasonable suspicion

tojustify a strip search can only be met by a showing of articulable facts which are particularized

as to the place to be searched") (citing United States v. Vega-Barvo, 729 F.2d 1 34 1 , 1 349 ( 1 1 th Cir.

1 984)) (emphasis added). ,

61

.

"[A]s a search progresses from a stop, to a pat-down search, to a strip search, an agent

must reevaluate whether reasonable suspicion tojustify the next level of intrusion exists in light of

the information gained during the encounter." Ashley, 147 ¥.36 at 1300 (citing Vega-Barvo, 729



2003] BORDER SEARCHES 287

the border, but non-routine searches require reasonable suspicion.

It is easy to lose sight ofconstitutional protections afforded individuals in the

context ofborder searches. As stated earlier, the Fourth Amendment is designed
to protect against unreasonable searches and seizures. How can a search
conducted without any reasonable suspicion or probable cause fail to run afoul

of the Fourth Amendment's mandate? The answer is that people at the border
still have the right to be free from unreasonable searches and seizures, as

guaranteed by the Fourth Amendment, but their expectation of privacy is less at
the border than in the interior.^^ As stated earlier, the courts have struck the
balance between the individual's right to privacy at the borders and the right of

the government to protect itself in the government's favor.^^ In addition to the

sovereign's interest in protecting itself, courts have pointed to the practical

problems with a requirement of probable cause for searches conducted on inland

routes into the country.^"* It is reasonable to assume that this same concern
justifies the lack of a probable cause requirement for searches conducted at an

airport as well.

The border authority is obviously an important doctrine. It is important not
only for the protections that it affords inspectors from liability, therefore

protecting valuable government resources from constant litigation, but also

because it allows government actors to perform the important task of protecting

the nation's borders without fear of personal liability. Ofcourse, any discussion
ofthe border authority involves important competing policies, such as the proper

balance between an individual's civil rights and the government's ability to

protect its borders. Now that these policies and arguments have been set out, it
is possible to consider how these standards operate while taking a broad view of
the policies driving their implementation.

III. The Standards IN Action

At this point, the majority of the defenses available to Customs employees,

as well as the policies and arguments justifying those defenses, have been

discussed. What remains, before a discussion ofhow those standards have been
changed with the amendment to 1 9 U.S.C. § 482 should be undertaken, is a brief
illustration of how those standards already operate in "real world" settings. To
accomplish this illustration, this section will simply set out facts from recent

cases, or facts that seem characteristic of a large percentage ofcases in this area,
and give an overview of how the discussed protections affect Customs
employees.

In Bradley, the plaintiff alleged that the search Customs performed on her
violated the Fourth Amendment.^^ Bradley had been subjected to a pat down.

F.2dat 1349).

62. Montoya de Hernandez, 473 U.S. at 539 (citing Carroll v. United States, 267 U.S. 1 32,

154(1925)).

63. Mat 540.
64. UnitedStatesv.Martinez-Fuerte, 428 U.S. 542, 557(1976).

65. Bradley v. United States, 299 F.3d 197, 203 (3d Cir. 2002).



288 INDIANA LAW REVIEW [Vol. 37:275

She alleged that the search was an "intrusive patdown,"^^ and required reasonable
suspicion. The court did not answer the question of whether an intrusive
patdown would require some level of suspicion because it concluded that the
patdown at issue was not intrusive and was still a routine border search.^^ The
facts ofthe case were that Bradley was returning from Jamaica, a country which
Customs considers a "source country" on a fl ight that Customs considers a source
flight. The search involved a pat down over Bradley's dress. Bradley claimed
that the inspector had inappropriately pushed on her breasts and inner and outer

labia.

In its analysis ofthe al legations the court noted that searches at the border are

presumed to be reasonable under the Fourth Amendment,^^ and that immigration
checkpoints at international airports are the functional equivalent of national

borders. The court went on to cite Montoya de Hernandez for the proposition
that the sovereign has authority to conduct routine border searches without

probable cause or warrant.^^ As such, the search was not subject to any
requirement of suspicion. Therefore, Bradley's rights were not violated. ^^ The
court did not reach the qualified immunity issue because after analyzing the

search under existing border authority precedent, the court determined that there

was no constitutional violation.^' It was further stated in dicta that even if there
had been a constitutional violation, the inspectors would have been entitled to

qualified immunity because there was no "clearly established" law holding that
an intrusive pat down was not a routine search requiring some level of
suspicion. ^^ The court did not hold that qualified immunity protected the
inspectors, but that under the border authority the search was permissible and
therefore a qualified immunity analysis was not necessary.^^

Now that we have seen an example of how all the protections available to
Customs operate to protect them from liability, let us consider an example of a
situation where the conduct was so egregious that the inspectors were not entitled
to qualified immunity in the early stages of litigation. In Brent v. Ashley,^^ two

Customs inspectors were challenging the denial of the motion for summary
judgment, which was based on a theory of qualified immunity. According to the
facts of the case, which consist of Brent's version. Brent was returning from
Nigeria and on the final leg of the flight, she met another passenger named

66. Id. at201.

67. Id at 203.

68. Id. at 201 (citing United States v. Ramsey, 431 U.S. 606, 616 (1977)) (citing United

States V. Hyde, 37 F.3d 1 16, 1 18-20 (3d Cir. 1994)) (citing United States v. Ezeiruaku, 936 F.2d

136, 140 (3d Cir. 1991)).

69. Id. at 201-02 (citing United States v. Montoya de Hernandez, 473 U.S. 531, 537 (1985)).

70. Id. at 204 ("We need not decide whether the customs inspectors reasonably suspected that

Bradley was smuggling contraband because we conclude that the patdown was not so intrusive as

to be transformed into a nonroutine border search.").

71. Id at 205.

72. Id.

73. Id

74. 247 F.3d 1294 (11th Cir. 2001).



2003] BORDER SEARCHES 289

Elbute. Brent and Elbute were the only black passengers on the flight. When
they arrived, Customs searched Elbute and Brent displayed her disapproval.

Based on her gesture, Inspector Seymour Schor instructed Inspector Carl Pietri
to detain Brent who then alleged that she was being singled out because she was
black. ^^ After a detailed search of Brent's luggage, which returned nothing, the

inspectors decided to detain Brent for further questioning. After questioning, the

inspectors decided to conduct a full body pat down and a strip search. Three
female inspectors were enlisted to conduct these searches. The form filed at the
time listed the justifications for the search as merely nervousness and the fact

that Brent had arrived from a "source country."^^ After the strip search, which

included touching Brent's crotch area, removing her sanitary napkin, squeezing

her abdomen, and monitoring her responses. Brent asked if she could use the

restroom. Brent was allowed to use the rest room but was watched closely by
inspectors and told not to flush the toilet so the inspectors could look for signs

of contraband in her urine.

In spite of the fact that all the searches up to this point were negative, the

original inspectors decided that an x-ray and pelvic exam should be performed
at the hospital. Again, the justifications were nervousness and arrival from a

source country. Brent was hand cuffed and presented with a consent form at the
hospital, which she was told to sign or she would be held indefinitely. Again the

searches were negative. Finally, ten hours after first being detained. Brent was
released and allowed to return to Houston.

^^

On the above listed facts the district court granted the summary judgment
motions ofthe subordinate inspectors, including the females who had conducted
the strip search, but the motions ofthe two original inspectors were denied. ^^ On
appeal, the circuit court first addressed the question of whether Brent's

constitutional rights had been violated. The court held that the initial stop was
justified under the border authority, but that to hold a traveler beyond the scope

of a routine search is only justified if, considering all the facts, the traveler was
reasonably suspected of smuggling contraband.^^ Also, the court stated,

"reasonable suspicion to justify a strip search can only be met by a showing of
articulable facts which are particularized as to the place to be searched.

"^^

Further, as a pat down progresses to a strip search, the agent must reevaluate
whether reasonable suspicion to justify the heightened intrusion exists,

considering the information gained during the previous search.^' The court, after
considering similar cases with similarjustifications, found that the only cause for

suspicion of Brent was her nervousness, and that nervousness alone could not
justify a strip search.^^ The court held that because the initial stop of Brent and

75. Id.

76. Id. at 1298.

77. Id

78. Id.

79. Mat 1299 (citing United States V. Montoya de Hernandez, 473 U.S. 531,541 (1985)).
80. Id. at 1 300 (citing United States v. Vega-Barvo, 729 F.2d 1 34 1 , 1 345 ( 1 1 th Cir. 1 984)).

81

.

Id. (citing Vega-Barvo, 729 F.2d at 1349).

82. Id. at 1302 (citing United States v. Tapia, 912 F.2d 1367, 1371 (1 1th Cir. 1990)).



290 INDIANA LAW REVIEW [Vol. 37:275

search of her luggage failed to produce a particularized or objective basis that

would equate to particularized evidence that she was a drug courier, the search
violated the Fourth Amendment.^^ For the same reasons, the court found that the
x-ray was unconstitutional.^"* The court went on to hold that the supervisors were
not entitled to qualified immunity because "a reasonable customs agent at the
time of the incident would have known that a strip search under the facts of this
case was a violation of Brent's Fourth Amendment rights."^^ As stated. Brent
came to the court as an appeal of the district court's denial of a summary
judgment motion. Therefore, even though the appellate court held the inspectors
were not entitled to qualified immunity on the facts presented, which were the
facts as stated by the non-moving party, the inspectors still had the opportunity
to a trial in which they could discredit those facts.

To the reasonable individual, the conduct of the inspectors in Brent likely
seems outrageous. The fact that the government even filed a motion for summary
judgment on the facts ofthis case seems disturbing because it can be understood
as evidencing a mentality that inspectors should not be held liable for their

conduct. The obvious question then arises: why do Customs inspectors need
more protection from liability, especially when that protection is seemingly
premised on the subjective knowledge and intent of the inspector? Some will
undoubtedly argue that Customs needs protection so they can conduct proper
searches at the nation's borders without the fear of prosecution. While this is a

valid argument, it does not explain why the protections already in place are
insufficient. However, the debate about whether Customs should have more
protection became largely moot in the summer of2002 when Congress passed the
amendment to 19 U.S.C. § 482. As stated previously. Customs now has
immunity from liability for all searches conducted in good faith. Due to the
recent passage ofthe act, however, there is no clear standard ofwhat will suffice

as good faith. The purpose ofthe following section is to offer some insight as to
what the courts will likely consider as evidence of good faith.

IV. The Standard FOR GOOD Faith

No case law currently exists defining what will constitute good faith when
the defense is raised by Customs for the first time. Further, because of the sheer

size of the Trade Act of 2002, legislative history on the point is sparse at best.

Therefore, to determine what the courts will consider as guidance, it is best to

consider other statutory schemes with good faith defenses. However, the first

relevant question is whether a good faith defense alters the effect of any of the

existing defenses available to inspectors. In other words, will plaintiffs be able

to argue successfully that by granting Customs inspectors good faith immunity

from liability. Congress intended to deny Customs inspectors the existing defense

of qualified immunity?

83. Id.

84. Mat 1303.
85. /J. at 1305.



2003] BORDER SEARCHES 291

A. Effect ofGood Faith Defense on Qualified Immunity

Whether good faith abrogates the common law defense ofqualified immunity
is a question that has recently been answered in the contexts of both the Fair

Housing Act,^^ and the Federal Wiretap Act.^^ In Gonzalez, the court concluded

that a good faith defense did not deny the defendant the protection of qualified

immunity reasoning that "[n]either the text nor the legislative history of section

3617 [of the Fair Housing Act] indicates that Congress intended to abrogate the

qualified immunity to which executive-branch officials were entitled under

common law."*^
The Tapley court went into more detail in its analysis of the good faith

defense in the Federal Wiretap Act. The Tapley court rejected the notion that
Congress had intended to abrogate the qualified immunity defense with the

inclusion ofa good faith defense when it stated, "the qualified immunity defense
is so well-rooted in our jurisprudence that only a specific and unequivocal

statement of Congress can abolish the defense."*^ The court also noted that the
test for qualified immunity is objective, while the test for good faith is
subjective.^^ It was also observed that one of the main benefits of qualified
immunity, the fact that it helps to resolve claims early in the proceedings, does

not exist in a good faith defense.

We would not strip ajudge or prosecutor of absolute immunity because
the claim related to a statutory violation and the statute provided an

affirmative defense. By the same token, police officers and public
officials performing governmental functions should not lose their

qualified immunity because of an affirmative defense which might or

might not protect them but would, in all events, require they be subject

to extended litigation and deprive them of the benefits of qualified

immunity.^'

This statement raises an interesting issue. Because a good faith defense rests

on the subjective state of mind of the inspector, determining whether good faith
exists will be a fact sensitive inquiry. As has already been illustrated, qualified
immunity is often raised early in litigation before decisions of fact are resolved.

Therefore, the good faith defense will only be required in cases where qualified

immunity has failed, or when the qualified immunity question cannot be
answered on summary judgment. As already illustrated in the previous section,
there are very few cases where the qualified immunity defense does not protect
inspectors, and cases where the inspectors are not entitled to qualified immunity

seem to share fairly egregious facts. Therefore, the only effect ofthe good faith

86. Gonzalez v. Lee County Hous. Auth., 161 F.3d 1290 (1 1th Cir. 1998).

87. Tapley v. Collins, 21 1 F.3d 1210 (11 th Cir. 2000).

88. Go«za/ez, 161 F.3d at 1299.

89. Tapley, 211 F.3d at 1216 (citing Buckley v. Fitzsimmons, 509 U.S. 259, 268 (1993)).

90. Id. at 1215 (citing Anderson v. Creighton, 483 U.S. 635, 639 (1987)) (citing Harlow v.

Fitzgerald, 457 U.S. 800, 816 (1982)).

91. /flf. at 1216 (citing Blake v. Wright, 179 F.3d 1003, 1012 (6th Cir. 1999)).



292 INDIANA LAW REVIEW [Vol. 37:275

defense will be to provide another layer of protection to those inspectors who
were not protected by qualified immunity.

B. Defining Good Faith

As it appears that no court will fmd that the inclusion ofa good faith defense
abrogates qualified immunity, the next relevant question is how courts will define
good faith. Initially, the standard of review in a good faith case has been stated
as "whether a reasonable jury on the evidence adduced by the plaintiff and

drawing all inferences in plaintiffs favor, could reasonably have found that the

defendants acted in other than subjective good faith."^^ To determine what good
faith is, it will be necessary to draw parallels from existing statutory schemes.
Title III ofthe Omnibus Crime Control and Safe Streets Act of 1 968, also known
as the Federal Wiretap Act, contains a good faith defense.^^ This act allows

someone who has been subjected to illegal surveillance to bring an action for
damages, however, "[a] good faith reliance on ... a court warrant or order, a
grand jury subpoena, a legislative authorization, or a statutory authorization . .

. is a complete defense against any civil or criminal action brought under this

chapter or any other law."^"* For purposes of Title III, good faith consists of a

subjective good faith belief that the official was acting in compliance with the
statute, and that the belief was reasonable in and of itself.^^

The Kilgore court went on to point out that "[i]f the requisites of the
statutory good faith defense are met, then the standard for qualified immunity as

a defense to Fourth Amendment violations is also satisfied. "^^ However, this
statement was made before the Supreme Court did away with the subjective good
faith aspect of qualified immunity in Harlow!^^ Thus, it is not clear from this

statement whether the court meant that a finding of statutory good faith satisfied

the subjective aspect of qualified immunity in place at that time, or whether the

court meant that upon a finding of statutory good faith both the subjective and

objective elements of qualified immunity were satisfied. If the court meant the

latter, which seems unlikely, the statement is not valid in light of the fact that

there is no longer a requirement of subjective good faith for qualified immunity.

Otherwise, an employee who violated clearly established case law would still be
eligible for a statutory good faith defense merely by ignorance of the relevant

case law (which is the cornerstone of the posX-Harlow qualified immunity

defense). Thus, even before the Supreme Court did away with the subjective
aspect of qualified immunity, it does not seem that the statement in Kilgore was

92. Wolfe! V. Sanborn, 666 F.2d 1005, 1007 (6th Cir. 1981), vacated by 458 U.S. 1 102

( 1 982) (citing Patzig v. O'Neil, 577 F.2d 84 1 , 848 (3d Cir. 1 978)).

93. 18 U.S.C.§§ 2510-2522 (2000). :•

94. Id. § 2520.

95. Kilgore v. Mitchell, 623 F.2d 63 1 , 633 (9th Cir. 1 980) (citing Jacobsen v. Rose, 592 F.2d

515, 523 (9th Cir. 1978), cert, denied, 442 U.S. 930 (1979)).

96. Id. at 633-34 (citing Zweibon v. Mitchell, 516 F.2d 594, 671 (D.C. Cir. 1975), cert,

denied, 425 U.S. 944 (1976)) (citing Wright v. Florida, 495 F.2d 1086, 1090 (5th Cir. 1974)).

97. See notes 31-35 and accompanying text.



2003] BORDER SEARCHES 293

meant to suggest that statutory good faith satisfied both aspects of qualified

immunity analysis, but rather that a finding of statutory good faith satisfied the

good faith requirement of the qualified immunity analysis.

If this hypothesis, that a finding of statutory good faith was sufficient for a
finding of good faith under the pre-Harlow qualified immunity standard, is

accepted, then the statement from Kilgore means that statutory good faith and the

good faith question in qualified immunity analysis are roughly the same thing.

Therefore, pre-Harlow good faith cases may provide insight to what a court
would view as statutory good faith after the amendments to 19 U.S.C. § 482.

However, such cases will not provide insight into what conduct is currently

protected by qualified immunity. With this hypothesis in mind, it is beneficial

to consult pTQ'Hariow decisions where qualified immunity was an issue to

determine what constituted good faith.

The most useful cases for this analysis are those that roughly follow the

theories that individuals assert against Customs employees. As stated, suits for
violations of Fourth Amendment rights are brought against Customs employees
under Bivens.^^ Suits against state employees for violation of federal civil rights

are brought pursuant to 42 U.S.C. § 1983 ("§ 1983"). For purposes of qualified

immunity analysis, suits brought under Bivens and § 1983 are treated similarly.^^

In fact, the rule seems to be that the defenses available to law enforcement

officers under either theory are the same.'^° The notion that the defense of good

faith applies to both Bivens and § 1983 cases is summed up in the following
quote from Brubaker.

The test, thus, under § 1983 is not whether the arrest was constitutional

or unconstitutional or whether it was made with or without probable
cause, but whether the officer believed in good faith that the arrest was
made with probable cause and whether that belief was reasonable. It is
now clear that an identical standard is to be applied in civil rights claims
against federal officials based on the Fourth Amendment.'^'

Now that it is clearly established that the good faith standard applied to §
1 983 cases is also applicable to Bivens cases, the question becomes what is good
faith in either context. It is also beyond dispute that whatever the level of good
faith that is required, the belief that the conduct was reasonable is essential to

98. Bivens v. Six Unknown Named Agents of the Fed. Bureau of Narcotics, 403 U.S. 388

(1999).

99. "[F]or the most part, courts have applied [§] 1 983 law to Bivens [sic] cases." Rodriguez

V. Ritchey, 539 F.2d 394, 399 (5th Cir. 1976) (citing Brubaker v. King, 505 F.2d 534 (7th Cir.

1974)).

100.

We need not decide whether, under the facts of this case, it was appropriate to proceed
against the federal defendants on the § 1983 theory since we are convinced that the

standard for what constitutes a defense for a law enforcement officer is identical under

§ 1 983 and the Fourth Amendment.

Brubaker, 5^5 V. 2d ?X52>6.

101. /c/. at 536-37.



294 INDIANA LAW REVIEW [Vo!. 37:275

avoiding liability.'^^ Finally, the defense ofqualified immunity must be pled and
proven by the defendant. '°^ It is reasonable to assume that the same is true for
a purely good faith defense. Some courts have shirked the question of what
defines good faith. For instance, in Procunier the Supreme Court did not define
what level of conduct would evidence a lack of good faith, but instead simply
stated that the conduct in that case did not rise to the requisite level of malice,

hinting that negligence in and of itself was not enough to deny the defense.'^"*
However, this reasoning is useful because it indicates that some sort of
intentional injury is required.

Under this definition, good faith appears to merely be the absence of bad
faith, with negligence not negating the protections offered by the defense. In
fact, in Shelton, the court noted that there was "no evidence that [the Customs
agents] acted other than in good faith."'^^ Other courts have honed in on this
reasoning and identified the difficult fact issues to which it gives rise. In Putman
the court noted that reasonable minds might differ as to whether the conduct of

the officer involved demonstrated a reasonable use offorce to prevent a prisoner

from escaping, or an unlawful and malicious intent to cause injury. '^^ This

argument again identifies the fact that the question of good faith is often not

amenable to a summary judgment motion.
While good faith is often a fact based inquiry, some plaintiffs have argued

that good faith is not available where the mistake was a mistake of law rather
than a mistake of fact. Under this logic, an officer who made an arrest because
of a misunderstanding of the law would not be entitled to immunity for his

actions, and if the facts of the case were not in dispute, then the plaintiff may
actually be able to prevail in early stages of litigation.

This argument was made in Benson, a case in which Customs agents
executed a warrant based on probable cause that the plaintiffs were smuggling

South African gold pieces (Krugerrands) without declaring them.'^^ As it turned

102. Wood V. Strickland, 430 U.S. 308 (1974).

The official himselfmust be acting sincerely and with a belief that he is doing right, but

an act violating a student's constitutional rights can be no more justified by ignorance

or disregard of settled, indisputable law on the part of one entrusted with supervision

of students' daily lives than by the presence of actual malice.

Id.dX2>2\.

103. Landrum v. Moats, 576 F.2d 1320, 1329 (8th Cir. 1978).

104. The Court stated that liability was authorized

where the official has acted with "malicious intention" to deprive the plaintiff of a

constitutional right or to cause him "other injury." This part of the rule speaks of

"intentional injury," contemplating that the actor intends the consequences of his

conduct ... To the extent that a malicious intent to harm is a ground for denying

immunity, that consideration is clearly not implicated by the negligence claim now

before us.

Procunier v. Navarette, 434 U.S. 555, 566 (1978).

105. Shelton v. U.S. Customs Serv., 565 F.2d 1 140, 1 142 (9th Cir. 1977).

106. Putman v. Gerloff, 639 F.2d 415, 422 (8th Cir. 1981).

107. Benson v. Hightower, 633 F.2d 869 (9th Cir. 1980).



2003] BORDER SEARCHES 295

out, the Krugerrands were not subject to a requirement ofdeclaration to Customs

because they were currency. Due to this mistake the plaintiffs brought an action
for violation oftheir Fourth Amendment rights. '°^ The court did not dispute that
the agents were entitled to qualified immunity, but the plaintiff argued that

qualified immunity was not available where the agent's mistake was a mistake
of law (the mistake being that the Krugerrands were declarable items). '°^ The
plaintiffs based their argument on the Restatement (Second) of Torts, which

states in relevant part "no protection is given to a peace officer, who however
reasonably, acts under a mistake of law other than a mistake as to the validity of

a statute or ordinance.""^ Luckily for the Customs agents, the court was not
persuaded by the logic of the Restatement. While the court did not hold that

qualified immunity is always available when there is a mistake of law, it did hold
that on the particular facts, including the fact that the arrest had followed after

a successful search with a warrant which indicated that there had been a showing

of probable cause by a magistrate, the justifications for applying qualified

immunity were present.'" This case again illustrates how strongly the courts
have opposed attempts to chip away at protections offered to those in the public
service. The court recognized that where the mistake was one of law, the
plaintiff might have a valid argument that qualified immunity should not apply,

but that argument was dependent on the facts of the case."^
While Harlow did away with the good faith aspect of qualified immunity

because it dealt with objective factors, it did not hold that the defense was purely
objective."^ In fact, courts have held that the good faith defense can apply to

reliance on regulations, ""* and even to operating procedures of local police

departments."^ Some courts have held, under certain statutory schemes, that
subjective good faith alone does not suffice for a showing of good faith. "^ For

instance, to show good faith under the Fair Labor Standards Act the official must

108. Mat 870.
109. Id.

110. Id. (quoting RESTATEMENT (SECOND) OF TORTS § 1 2 1 cmt. i ( 1 965)).

111. /^. at 871.

112. Id

113. "Although the Harlow Court indicated that the good-faith defense turns primarily on

objective factors, it did not hold that an exclusively objective standard was to be applied to claims

that proceeded to trial. Thus, the County's argument that the standard for good-faith immunity

must be purely objective, is untenable. . . ." Vizbaras v. Prieber, 761 F.2d 1013, 1016 (4th Cir.

1985) (quoting McElveen v. County of Prince William, 725 F.2d 954, 957-58 (4th Cir. 1984)).

1 1 4. Reliance on a policy that is later invalidated by a court is still grounds for good faith as

long as the reliance occurred before the policy was invalidated. Kilgore v. Mitchell, 623 F.2d 63 1

,

635 (9th Cir. 1980).

115. "Police officers also have a good faith reliance on standard operating procedures, if at the

time of the incident they relied on the standard operating procedures of their institution when

responding to an incident and when such reliance is honest and [sic] in its intention and

reasonable." Vizbaras, 761 F.2d at 1015 (quoting jury instructions).

1 1 6. Int'l Ass'n of Firefighters, Local 349 v. City ofRome, Ga., 682 F. Supp. 522, 532 (N.D.

Ga. 1988).



296 INDIANA LAW REVIEW [Vol. 37:275

show that he acted in reliance on a written agency interpretation."^ This
requirement is not a creature of the courts, but is actually a requirement in the

statute."^

Sometimes officials find that offering proof that they relied on agency
procedures is the easiest way to show that they acted in good faith. Courts have
proven receptive to such arguments, and it seems to be one ofthe most objective
arguments available for proving good faith. In one case, officers were able to
avoid liability for shooting an unarmed man because they relied on department
procedure."^ Under the revisions of 19 U.S.C. § 482 Customs inspectors will
likewise be able to argue that they relied on their department procedures to avoid
liability.

A related argument that defendants have made in good faith cases is that the
defendant relied on orders from a superior. In a case in which a sheriffs deputy

made a similar argument, the court stated that "[T]he fact that the actions are
taken pursuant to orders and instructions is not a defense in and of itself,

although it may be relevant to a claim of good faith and the defense of qualified
immunity.'"^^

In addition to looking at prQ-Harlow qualified immunity cases, it is also

beneficial to look at other statutory schemes that provide a good faith defense.

While an in-depth analysis of these other schemes is not necessary, it is useful
to consider whether the courts utilize a different analysis than under a qualified

immunity standard. Title III ofthe Omnibus Crime Control and Safe Streets Act
provides a good faith defense when a law enforcement agent acts in good faith
and reliance on a court order or legislative authorization.'^' Cases, such as
Burkhart v. Saxbe, that arise under this act often involve placement of wiretaps

since that is one avenue that the act allows for in protecting the public. '^^ This

case was brought after the plaintiffs conversations were overheard during
warrantless surveillance. Attorney General John Mitchell authorized the

wiretaps without judicial authorization.'^^ The plaintiffs contended that the
wiretaps (which were not on their phones but on the phones to which the

plaintiffs made calls) violated their Fourth Amendment rights and Title III ofthe

\\7. Id.

118. 29 U.S.C. § 259 (2000).

1 1 9. Landrum v. Moats, 576 F.2d 1 320 (8th Cir. 1 978). In this case the officers justified their

use of deadly force on a directive in their department giving them the authority to use a firearm to

aid the arrest or capture, and to prevent the escape, of a person who the officer has reasonable

grounds to believe has committed a felony. Id. at 1323.

120. Putmanv.Gerloff,639F.2d415,422-23(8thCir. 1981). The court cited For^^^^/a for the

proposition that agents acting in good faith while following instructions would not be liable, but

that agents that knew or should have known that they were violating the rights of a plaintiff could

not "hide behind the cloak of institutional loyalty." Id. at 423 (quoting Forsyth v. Kleindienst, 599

F.2d 1203, 1217 (3d Cir. 1979)).

121. 18 U.S.C. §2520(2000).

122. 448 F. Supp. 588 (E.D. Pa. 1978).

123. Id. at 59\.



2003] BORDER SEARCHES 297

Act.'^"* The defendants responded that the wiretaps were authorized by the
Attorney General and were exempt from Title III and from a requirement ofprior

judicial approval.
'^^

The standard for good faith relied on by the court was that the defendants
reasonably did not know that conducting the surveillance without a warrant
violated the Fourth Amendment and that the agents acted without malicious
intention to deprive the plaintiffs of constitutional rights, or to cause them to

suffer some other injury.'^^ The court went on to note that negligent interference
with a plaintiffs rights was not a basis for denying the defense because there was
no "intentional injury" to the plaintiffs. '^^ Given these fact intensive standards,

it is not surprising that the motions for summaryjudgment were denied so factual
issues could be resolved.

'^^

V. GOOD FAITH Under 19 U.S.C.§ 482(b)

The task now arises ofputting these conflicting standards into some order to
roughly determine what the good faith defense provided by 19 U.S.C. § 482(b)

really means. A few seemingly universal guidelines arise out of the preceding
sections. Procedurally, the defendant has the burden of proving all elements of

the defense to the satisfaction of the jury.' ^^ There must be some showing of an
intentional injury. Mere negligence does not suffice to overcome the defense of
good faith. '^° Also, the defendant's belief that his conduct was not

unconstitutional must be reasonably held. '^' Finally, the defendant will likely be

allowed to plead reliance on agency regulations as a defense to liability.*^^

As to the requirement that the belief be reasonably held, it has already been
illustrated that both an objective and subjective showing of reasonableness is

required, and that ignorance of the applicable constitutional standards is no

defense to liability.'" Therefore, the courts seem to be saying that Customs
officers will be charged with knowledge of existing established constitutional

principles when making determinations as to the reasonableness of inspectors'
actions. If those actions violate such well established law, it appears that the

inspectors will not be entitled to protection offered by the defense even if they

were not aware of the law. On this level, the defense of good faith mirrors the
post-Harlow analysis of qualified immunity—namely that the defendant will be
held liable if his conduct violates established constitutional principles of which

124. Id.

125. Id. at 592.

126. Id. at 608-09 (citing Skehan v. Bd. of Trs., 538 F.2d 53, 62 (3d Cir. 1976) (en banc)).

127. Id. at 609-10 (citing Procunier v. Navarette, 434 U.S. 555, 556 (1978)).

128. /^. at 610.

129. Landrum v. Moats, 576 F.2d 1320, 1329 (8th Cir. 1978).

130. ^ee j-wpra text accompanying note 1 04.

131. Brubakerv. King, 505 F.2d 534, 536-37 (7th Cir. 1974).

132. S'ee 5Mpr<3 note 1 1 9 and accompanying text

133. Wood V. Strickland, 420 U.S. 308, 321 (1975).



298 INDIANA LAW REVIEW [Vol. 37:275

he knew or reasonably should have known. '^'' Good faith immunity will allow
other means for Customs employees to avoid liability for their actions, but
similar to qualified immunity, it will not allow them to avoid liability for actions
that they knew or should have known were illegal.

The fact that good faith and qualified immunity defenses both attribute
knowledge of well established constitutional principles to the defendant will

largely negate the aspect of the good faith defense that would allow a defendant
to avoid liability for actions that he or she truly believed, although erroneously

so, to be valid. However, there are other benefits to the good faith defense that
will still allow employees to avoid liability even when qualified immunity may
not. Perhaps the most important ofthese means is that Customs employees will
be able to prove good faith by reliance on agency procedures. In fact, because
the good faith defense will likely have an objective component, reliance on

agency procedures will likely be the most common means that Customs
employees attempt to avoid liability. In the case of Customs, these procedures

will likely come out ofthe Personal Search Handbook ofthe Customs Service. '^^

In fact, throughout many of the existing cases against Customs employees, the
employees cite their reasoning for conducting inspections to aid in their

defense.
'^^

While it is unclear which ofthese reasons are specifically listed in the

Personal Search Handbook, it is clear that courts do consider them as
justifications for the decision to conduct a search. The result of this is that
Customs inspectors will likely be able to plead and prove good faith by reliance

on custom as well as written agency procedure. Of course there is no
requirement that courts accept all proffered justifications for a search as

establishing good faith when those justifications are not in writing,
'^^

but when
the procedures are in writing, it seems likely that courts will not hold inspectors

liable for conduct that conforms to that policy.

134. See supra notQ 32.

135. See Bradley v. United States, 299 F.3d 197, 204 (3d Cir. 1985) (discussing probable

cause requirements contained in the Personal Search Handbook).

1 36. See Montoya de Hernandez v. Hernandez, 473 U.S. 53 1 , 533-34 ( 1 985) (citing such facts

that plaintiffhad arrived from a "source city" for narcotics, plaintiff spoke no English, and plaintiff

carried large quantity of cash, plaintiff had only one pair of shoes); see also Brent v. Ashley, 247

F.3d 1294, 1297n.l (1 1th Cir. 2001) Gustifying a strip search and x-ray that plaintiff fit the profile

of African-American women on the same flight as Nigerian men, that she had arrived from a

"source country," that she disapproved of the treatment of the only other black passenger on the

flight, that the ticket had been purchased by a friend with a credit card at the same travel agency

where the only other black passenger had purchased his ticket, she wore inexpensive clothes, and

she became nervous and agitated when confronted).

137. See Brent, 247 F.3d at 1299 (stating that the fact that the inspectors saw the plaintiff

shake her head in disapproval ofthe treatment ofanother black passenger was not sufficient to find

reasonable suspicion to conduct a search).



2003] BORDER SEARCHES 299

VI. The Debate

More can be said about what will constitute good faith in Customs inspection
cases. Hypotheticals could be offered to illustrate when the good faith defense
may protect inspectors in situations where qualified immunity fails to, or vise
versa. However, these are issues that will be addressed by courts over time,

using the framework and reasoning already discussed in this note. What remains
then is not to better understand how the good faith defense will work, but why
it is necessary at all. Obviously, there must have been some concern when the
Trade Act was passed that led Congress to take such drastic action. In the

remainder of this Note I will discuss both positions for and against the addition

ofthis layer of protections for Customs employees, and attempt to balance those

interests to see if the defense is a legitimate expansion of a necessary protection

or overreaching legislation capitalizing on the tragedy of September 1 1, 2001

.

To begin, it is useful to understand the context that suits against Customs
officers will be brought. Customs inspectors search incoming shipments of

merchandise at sea ports. They also search people and merchandise at inland
ports of entry on the Canadian and Mexican borders as well as international

airports. Because inspections at ports of entry include people and not just

merchandise, and because there is no requirement of probable cause for normal

searches conducted at the borders,'^^ the issue of racial profiling will often come
up in the context of Customs searches.

The possibility that racial profiling may occur, coupled with the possibility
that an inspector guilty of profiling may be able to avoid liability by claiming he
or she acted in good faith, is a strong argument against the addition of the

defense. To make a claim for violation of equal protection rights in the racial
profiling context, the claimant will have to prove that the actions taken by

government officials had a discriminatory effect, and were motivated by a

discriminatory purpose.'^^ In order to prove discriminatory effect the claimant

has the burden of showing that he or she is a member ofa protected class and that
he or she was treated differently from similarly situated individuals in an
unprotected class.

"*^

One can see the difficulties facing a claimant attempting to make a charge of
racial profiling against Customs in the context ofa search, in order to prove that

he or she was treated differently from other members of a protected class. The
plaintiff will not have access to this information short of extensive discovery,

which is very costly to perform. Many individuals who feel their rights have
been violated may not have the means to hire a lawyer and look into allegations
of wrongdoing, much less the means to pay for extensive discovery. Further
complicating the task of a claimant attempting to protect their civil rights is the

fact that qualified immunity often arises in the early stages of litigation.

138. See supra note 52.

1 39. Bradley, 299 F.3d at 205 (citing Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S.

252, 264-66 (1977)) (citing Washington v. Davis, 426 U.S. 229, 239-42 (1976)) (citing Chavez v.

Illinois State Police, 251 F.3d 612, 635-36 (7th Cir. 2001)).

140. Id. at 206 (citing Chavez, 251 F.3d 612 at 636).



300 INDIANA LAW REVIEW [Vol. 37:275

Therefore, Customs may be able to win on a motion for summary judgment
before the claimant even knows what discovery he or she must conduct. This is
exactly what happened in Bradley. There, the plaintiff alleged that the district
court restricted discovery and then granted summary judgment even though
further discovery was necessary to her case. The circuit court upheld the ruling
of the lower court, noting that Bradley had the responsibility under the Federal

Rules of Civil Procedure, Rule 56 (f), to file an affidavit that specifically

identified the information sought, how that information would preclude summary
judgment, and why it had not been obtained earlier.''*' This argument is not
presented to suggest that the plaintiffs failure to follow procedural rules should

be excused. Instead, it is offered as one more illustration ofhow high the burden
is on a plaintiffcomplaining against the Customs Service. Not only is it difficult
to obtain a favorable ruling against the government, but also it is difficult to be

able to make a claim against the government given the procedural safeguards in
place. Of course, with the passage of the good faith defense, even if a plaintiff
is able to successfully survive the discovery and summary judgment stages of
litigation, claims for racial profiling will still be difficult to win given the fact
that inspectors will be able to plead reliance on agency procedures as a defense.

In support ofthe defense, there is no question that some protections must be
afforded to the government in order to avoid unchecked litigation and frivolous

lawsuits. The government must be able to function and perform its duties to the
public in general without fear of liability from lawsuits filed by overly litigious

citizens, and without fear of defending frivolous lawsuits beyond the earliest

stages of litigation. In fact, the societal costs ofextended litigation to the public,

and the resulting loss to society of productive use of governmental assets, are

among the very justifications put forth for the qualified immunity defense in
Harlow}^^ However, the addition ofa good faith defense to Customs' arsenal of

defenses to liability flies directly in the face ofconcerns regarding the amount of
litigation the government must contend with, and is not justified by any failure

ofthe existing defenses to adequately protect Customs employees from liability.

It has been illustrated that the question of good faith will require

determinations offact in most cases where qualified immunity fails to protect the

inspector, especially those where the inspector is not found to act in good faith

on reliance of agency procedures. It is clear that the question of good faith will

not come into play until the motion for summary judgment has been denied.
Once an inspector's claim ofqualified immunity is denied on summaryjudgment,
the inspector still has the opportunity to defend the lawsuit on the merits. Only

at this stage of litigation, when the inspector is forced to defend the lawsuit on
the merits, will the issue of good faith begin to be litigated. Therefore,

arguments that society's resources should not be wasted in litigating frivolous

lawsuits do not support passage ofthe good faith defense because lawsuits where

good faith is at issue are ultimately going to be litigated. In effect, the good faith

defense simply provides another method of avoiding liability during the trial

without serving the goals of qualified immunity, which include conservation of

141. Id. at 206-07.

1 42. See supra text accompanying note 3 1

.



2003] BORDER SEARCHES 301

government resources and allowing the government to function efficiently.

In three recent cases involving claims against Customs inspectors, qualified
immunity failed to protect the inspector in only one instance. In Saffell v. Crews,

inspectors were not held liable for a partial strip search because a bulge in the

claimant's pelvic region was grounds for reasonable suspicion ofcontraband."*^

No drugs were found on the plaintiff, but the court still found that the inspectors
were entitled to qualified immunity for their actions. As discussed in Bradley,
the inspectors were not held liable because their conduct was held not to be the
subject of a requirement of reasonable suspicion.

''*'* Only in Brent were the
inspectors denied the protection of qualified immunity.'"*^

It is therefore clear that qualified immunity is not failing to meet its goals of

both protecting the civil rights of citizens and protecting the government

(specifically Customs) from frivolous lawsuits. What then is a reasonable
explanation of why more protections were required for the inspectors in these
cases? One possible explanation is that in a knee-jerk reaction to September 1 1

,

2001 , public concern over the protection ofthe nation's borders was high enough
that this provision passed Congress without much concern over the possibility
that it would be abused. Another possibility is that the amendment passed simply
because it was buried in a massive Trade Act. Indeed, because ofthe sheer size
ofthe Trade Act of2002, debate over the specific amendment to 1 9 U.S.C. § 482
is scarce, but what is there is very revealing of the concerns attendant with the

legislation. Numerous civil rights organizations, including the NAACP,
Leadership Conference on Civil Rights, ACLU, and the Council on American
Islamic Relations all expressed strong opposition to passage of the amendment
to § 482."*^ Beyond special interest groups, a number of members of Congress
expressed concern over the provisions of the Trade Act dealing with Customs
immunity. Perhaps the most compelling statements against the passage of the

amendment dealt with a report by the General Accounting Office ("GAO"). This
report, which focused on racial profiling, found that African-American women
were nine times more likely than Caucasian women to be the subjects ofintrusive
searches while they were only half as likely as Caucasian women to be found
carrying contraband.''*^

Some representatives focused on the obvious need to protect national
security, but emphasized that this need should not come at the expense of civil
rights.''*^ One congressman specifically emphasized that the amendment was a
capitalization on the tragedy of September 1 1, 2001, which was being used to
justify offenses to the Constitution.''*^ The same congressman went on to note
that Customs had not provided anyjustification why qualified immunity was not

1 43. See supra note 3 and accompanying text.

1 44. See supra note 70 and accompanying text.

145. 5ee j-wpra notes 74-85 and accompanying text.

146. 148 Cong. Rec. H5980-H5982 (daily ed. July 26, 2002).

1 47. Id. at H5978-H5979 (statement of Rep. Jackson-Lee).

148. /J. atH5979.

149. Id. at H5979 (statement of Rep. Conyers).



302 INDIANA LAW REVIEW [Vol. 37:275

protection enough, especially in light of the GAO's study. '^°

Aside from concerns about the amendment, the statements of the
representatives during the debates over the Act provide some insight into how the
members of Congress understood the good faith defense would operate. There
was concern that an officer "could engage in blatantly discriminatory conduct,
but if he in 'good faith' believed that he was justified in doing so, he could not
be held liable," and that a claimant would be entitled to no relief unless the
inspector acted in "bad faith.'"^' There was also concern about how the proposal
would affect the population. '^^ Unfortunately, based on the analysis of what

constitutes good faith in the law enforcement context, these statements are

entirely accurate as to what the effect of this legislation will likely be.

The arguments made in Congress sufficiently state the issue. No clear reason
exists to justify giving Customs officials more immunity than any other law
enforcement agency. Good faith was originally a factor in the qualified
immunity analysis that the Supreme Court later did away with in Harlow because
it would waste too many government resources in litigation. Now Customs
employees have the benefits of good faith immunity, possibly even if they

reasonably should have known that their actions violated clearly established law,
without the benefits to society that stem from qualified immunity. Given the past

holdings in cases dealing with challenges to searches conducted under the

authority of 1 9 U.S.C. § 482, there is no showing ofnecessity for this extra layer

of protection. Obviously, the events of September 11, 2001, and the resulting

war on terror have increased the public's concern about who and what are
entering the country, but should rights that have been fundamental since the

adoption ofthe Constitution be sacrificed in a knee-jerk reaction to those events?

Given the delicate balance that courts have sought to achieve since the adoption

of qualified immunity, and the lack of sound policy supporting the additional

protections afforded to Customs in this instance, it is difficult to see this

legislation as anything but a reflex to September 1 1, 2001, that may lead to
unintended consequences.

150. Id.

151. 148 Cong. Rec. H5979 (daily ed. July 26, 2002).

1 52. "This proposal would hurt real people. It would increase the likelihood of meritorious

claims being thrown out. Parties would end up fighting at length over whether an official did or

did not subjectively believe his conduct to be lawful—even if existing law clearly established that
it wasn't." Id. at H5980.