A federal appeals court has thrown out the lawsuit of a Kansas City immigration lawyer who sued an ICE agent for allegedly shoving her to the ground, leaving her with a fractured foot, concussion and other injuries.
The 8th U.S. Circuit Court of Appeals ruled that the ICE agent, Ronnet Sasse, was entitled to qualified immunity — the legal doctrine that shields government officials from being sued for actions they take in their official capacity unless those actions violated a “clearly established” legal or constitutional right.
The seven-page decision authored by Judge Steven Colloton found that the lawyer, Andrea Martinez, had not clearly established that the ICE agent’s shove qualified as a seizure under the Fourth Amendment and therefore Sasse was entitled to qualified immunity.
A portion of the incident, which occurred on June 26, 2018, was captured on camera by a Netflix crew for a documentary, “Living Undocumented,” that aired in October 2019.
J. Emmet Logan, one of Martinez's attorneys, said the 8th Circuit's decision did not mark the end of the lawsuit.
"The claims of Ms. Martinez against the United States for the actions of the individual defendant are not affected by the appeal," Logan said. "We will review the decision with Ms. Martinez and decide what steps to take in response."
Martinez represented Kenia Bautista-Mayorga and her 3-year-old child, identified in Martinez's lawsuit as N.B.M. The two sought asylum in the United States in 2016 after fleeing alleged abuse at the hands of Bautista-Mayorga’s former partner, a Honduran police officer and N.B.M.’s father. Bautista-Mayorga and her son settled in Texas.
In May 2019, Bautista-Mayorga, then about five months pregnant, was detained by ICE in Platte County after a traffic stop. She was separated from N.B.M., who went to live in Texas with Bautista-Mayorga’s then partner, with whom she was expecting the child.
She and N.B.M. were eventually ordered deported. While awaiting the outcome of their appeal, Martinez asked her partner to bring N.B.M. to Kansas City in the event they lost the appeal.
According to her lawsuit, Martinez originally made plans with ICE for her clients to say goodbye to Bautista-Mayorga’s partner in the ICE parking lot. But two ICE officers, including Sasse, instead told her to have them say their goodbyes in the ICE facility because it was raining outside.
When Martinez and an associate went back to Martinez’s car, where Bautista-Mayorga’s partner was holding N.B.M., they were followed by one of the agents, according to the lawsuit. The agent allegedly interrupted their conversation, grabbed the partner’s arm and forcibly walked him to the building’s entrance.
After the partner and N.B.M. were brought inside the building, Sasse and the other agent physically backed into Martinez, pushed her to the ground and locked the doors to the facility, according to Martinez's lawsuit.
Martinez alleged the fall fractured her right foot, tore her pants and caused lacerations, bleeding and a concussion.
Martinez was eventually allowed to enter the facility, where she found Bautista-Mayorga, her partner and N.B.M. “hugging and crying.” The three weren’t allowed to bring their luggage, Martinez alleged, and “were deported without any belongings except for the clothes they were wearing.”
Sasse sought to have Martinez's lawsuit dismissed by arguing she was entitled to qualified immunity. Senior U.S. District Judge Fernando J. Gaitan denied her request, finding that Martinez had stated a claim for the violation of a clearly established right — namely that Sasse had used excessive force in violation of the Fourth Amendment.
Sasse appealed and the 8th Circuit, in reversing Gaitan, said that the push of Martinez did not qualify as a seizure under the Fourth Amendment because the ICE agents weren’t trying to apprehend her.
The appeals court cited its own ruling in a 2021 case finding that the tear gassing of news reporters was not a seizure because the reporters’ freedom to move “was not terminated or restricted” but instead the reporters were simply “dispersed.”
