updating brignoni-ponce - New York University School of Law

2008] UPDATING BRIGNONI-PONCE 597
to the officers’ experience, the court concluded that the officers had a
reasonable suspicion to stop and question Habeeb. 187 The court did
not offer or question the officers’ reasons for making the stop.
With regard to Habeeb’s equal protection claim, the court emphasized
the ability of an officer making an investigatory stop to make
use of a person’s appearance. 188 The court found that Habeeb failed
to show discriminatory purpose by simply asserting that the officer
questioned him based solely on his race or ethnicity. For instance,
Habeeb did not allege that the officer made any untoward comments
or that he singled out Habeeb. 189 Thus, even though the court was
determining a summary judgment motion where the pleading should
be read in a light most favorable to the plaintiff, 190 the court claimed
that it could not infer from the facts alleged that the officers questioned
Habeeb solely based on race. 191 The court defended immigration
enforcement officers’ reliance on appearance by arguing that,
border protection officers would not otherwise be able to carry out the
responsibilities assigned to them by law, which would result in a
“chilling effect upon fundamentally-reasonable and appropriate law
enforcement efforts.” 192
The court’s Habeeb v. Castloo opinion was withdrawn over a
year later upon a joint motion to vacate judgment after the parties
agreed to a settlement. 193 Habeeb received a written apology from the
U.S. government and $250,000 as part of the settlement. 194 The
American Civil Liberties Union, who was representing Habeeb before
the Ninth Circuit, characterized the settlement as “‘a strong reminder
that the government must not engage in ethnic profiling.’” 195 The
government argued that the case and settlement had nothing to do with
racial profiling, although it did admit that Habeeb should have never
or before [September 10, 2002]; and (3) [w]ill remain in the United States at least
until December 16, 2002.’” Id. at 908 (quoting Registration of Certain Nonimmigrant
Aliens from Designated Countries, 67 Fed. Reg. 67,766, 67,766 (Nov. 6, 2002)).
187. Habeeb, 434 F. Supp. 2d at 906. In addition, the court concluded that, since the
train station was 45 miles south of the Canadian border, the officers could have
boarded and searched the train for aliens under 8 U.S.C. § 1357(a)(3) and that Congress
must have intended this grant of authority to include questioning passengers
who descended at regularly scheduled stops. Id.
188. Id. at 910 (citing United States v. Brignoni-Ponce, 422 U.S. 873, 885–87 (1975)
and United States v. Ortiz, 422 U.S. 891, 897 (1975)).
189. Id. at 911.
190. Id. at 903 (citing Fed. R. Civ. P. 56(c)).
191. See id. at 911.
192. Id.
193. Habeeb v. Castloo, 2007 U.S. Dist. LEXIS 51268, at *1 (D. Mont. 2007).
194. Bowermaster, supra note 185, at B1. R
195. Id. (quoting Jesse Wing, board president of the Washington ACLU).