Thursday, March 21, 2002
En Banc Ninth Circuit to Review Kidnapping Suit Against U.S.
By ROBERT GREENE, Staff Writer
The Ninth U.S. Circuit Court of Appeals yesterday granted en banc review of a Sept. 11 ruling that a Mexican doctor, kidnapped and forced to the U.S. to stand trial, can sue the U.S. for damages.
In a ruling that went largely unnoticed because of the attacks the same day in New York and Washington, D.C., a three-judge Ninth Circuit panel reinstated Humberto Alvarez-Machain’s lawsuit for damages arising out of his 1990 abduction from his Guadalajara office at the behest of U.S. drug enforcement agents.
Alvaraez-Machain was forced to board an airplane and was flown to El Paso, Texas, where DEA agents were waiting to arrest him in charges that in 1985 he used his medical skills to keep agent Enrique Camarena alive while Camarena’s captors tortured and interrogated him. The U.S. Supreme Court ruled that the abduction did not violate the Mexico-U.S. extradition treaty, and the Ninth Circuit later ruled that his kidnapping was not so shocking as to constitute a denial of due process.
He was held in the U.S. for three years. Trial proceeded in Los Angeles, but U.S. District Judge Edward Rafeedie ruled it was clear prosecutors had no case and acquitted him.
Alvarez-Machain and the ACLU then filed suit for $20 million against the U.S. and five DEA agents—Director Jack Lawn, Deputy Director Pete Gruden and supervisory agents Hector Berellez, Bill Waters, and Mexican agents Antonio Garate Bustamante and Francisco Sosa, plus five unnamed Mexican nationals in the federal witness protection program.
A federal trial court awarded him $25,000 but threw out most of his claims. They were reinstated by the three-judge Ninth Circuit panel, which held that the doctor’s arrest was a false arrest for purposes of the Federal Tort Claims Act and that as a Mexican national he could sue the U.S. under the Torture Victims Protection Act.
Alvarez-Machain’s abduction signaled a new phase in the U.S. war on drugs and badly strained the nation’s relations with Mexico, which was already chafing under government pressure over the drug trade.
Yesterday’s one-paragraph order, signed by Chief Judge Mary Schroeder, states that the Sept. 11 opinion is not to be cited as precedent unless upheld by an 11-judge en banc panel. The Ninth Circuit’s “limited en banc” review includes fewer than all of the judges on the court, due to the circuit’s size.
All non-recused judges of the court voted. The court does not release how each judge voted, but the order noted that Judges Stephen Reinhardt and Stephen Trott were recused.
No reasons for the recusals were given. Reinhardt is married to ACLU of Southern California Executive Director Ramona Ripston and normally recuses himself from the group’s cases, and Trott was associate attorney general of the United States, with oversight of the DEA, before his appointment to the Ninth Circuit.
A new hearing date has not been set.
The case is Alvarez-Machain v. U.S., 99-56762.
Copyright 2002, Metropolitan News Company