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  A Matter of Criminal Intent
by Steven D. Laib, J.D. M.S.
10 May
2003 

Why the lawsuit against the Department of Interior, for not providing illegal border crossers with free water stations in the desert, should be thrown out.

I remember when, some years ago a man tried to break into San Francisco’s De Young Museum in Golden Gate Park. The museum building, now considered earthquake unsafe was old, even then, and featured some glass skylights, which the burglar attempted to use to gain entry. Unfortunately (for him) something went wrong, he fell through one of those skylights onto the marble floor below and broke a leg, if I remember correctly. His burglary scuttled, he had no choice but to try another tack. So, following his arrest when the museum staff returned the next morning, he sued the City and County of San Francisco for his bodily injuries.

To this day I don’t recall what happened to the injury suit. However, it sparked the County Supervisors to put a new law on the books to the effect that a person injured while committing a crime could not collect damages for the injuries, caused by the negligence of the intended victim. Strangely, there was, apparently, no prior law on the books in California to that effect. This case was essentially a minor matter, but its facts shed some important light on the matter of 14 Mexican citizens who recently died while trying to cross the desert into Arizona. The families of these unfortunates have recently filed suit against the US Dept. of the Interior for negligently failing to help them survive in their desert crossing.

According to the suit, government border policies force people attempting to cross the border illegally into a dangerous area with high temperatures and little water. The problem, the plaintiffs contend would have been solved if the Interior Dept. had allowed a public interest group called Humane Borders to erect water stations in the area, which also happens to be a federally protected wildlife refuge dedicated to preservation of the endangered Sonoran pronghorn antelope. After these particular deaths the Department purportedly erected the water stations and emergency call boxes to save the lives of people crossing the desert. This, the plaintiffs contend demonstrates that the government had a duty to help these people.

Obviously, what the two cases have in common is the simple fact that the alleged victims were injured or killed while doing something illegal. According to The Tucson Citizen about 3000 people successfully make the crossing each day. Government practice, reasonably tries to force migrants into the least hospitable area to discourage them from attempting the trip. But the crux of the matter is for all practical purposes, this: The plaintiffs contend that the government has a duty to assist them in doing something illegal. Taken to its logical conclusion, this position asserts that a robber, shot while committing the robbery has a claim against the person who shot him. He may even be able to assert that police officers arriving at the scene have a duty to help him escape with the loot so that they can arrest him later when and if they find him.

Now obviously, there are several things wrong with all of this. Reasonably, when a person decides to do something illegal, they must assume a risk that they might be caught. In many cases there is also the risk that they may be injured. It is the same situation that happens when someone decides to undertake a risky activity such as playing tackle football. You assume the risk of being caught, killed, injured, or whatever, depending on what you may be doing. If the activity is illegal, it should be presumed that the activity is risky, and that any injury, death or other consequence is the responsibility of the person doing it. And, crossing the border from Mexico to the United States without going through a designated crossing point, where, it should be pointed out, there are no problems with lack of water, is illegal, and the people crossing the border know this. Meanwhile, all of this does not yet address the possibility that when these illegal immigrants come through the wildlife refuge they may be further endangering the Sonoran Pronghorns. Environmentalists should be outraged at the potential destruction to valuable habitat through pollution, litter and other human generated detritus.

The claim against the Department of the Interior should be thrown out on a summary judgment, or earlier, if it is handled correctly. However, we can probably count on either government incompetence or judicial failure to recognize the true issues to see this case progressing toward a finding in favor of the plaintiffs. Borders exist for a reason. Border crossing points exist for a reason as well. If the Mexican people cannot get what they want in their own nation, maybe they should do something it. Is the spirit of Benito Juarez already forgotten there?  

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