Back in June, the widow of a man shot dead by police in a case of mistaken identity filed a $20 million civil lawsuit against the city, after the criminal case against officers was dropped by a jury.
Now lawyers for the city in Mississippi have filed to have that civil case dismissed with a controversial legal pitch: they claim the constitutional rights cited in the lawsuit do not apply because the victim was not in the country legally at the time of his death.
In July 2017, police in the city of Southaven mixed up the address of a man wanted for domestic assault with the address of Ismael Lopez. In the ensuing raid on Lopez’s mobile home, he was killed by a single bullet to the back of the head, fired through a closed door, according to court documents.
When the manslaughter case against the officers ran aground, his wife filed an unlawful death lawsuit (pdf) against the 50,000-strong city that sits on the southern edge of Memphis, just inside the Mississippi state line.
On Sept. 4, an attorney for the city filed to have that lawsuit dismissed saying that as an illegal alien, Lopez “had no Fourth or Fourteenth Amendment civil rights as alleged in the complaint.”
Lopez was a convicted felon for violent crime.
“If he ever had Fourth Amendment or Fourteenth Amendment civil rights, they were lost by his own conduct and misconduct,” a city attorney wrote in her motion, reported CNN. “Ismael Lopez may have been a person on American soil but he was not one of the ‘We, the People of the United States’ entitled to the civil rights invoked in this lawsuit.”
The attorney for the city cited two cases in which higher courts ruled that constitutional protections did not apply due to nationality.
In one case, the Supreme Court effectively ruled in 1990 that the Fourth Amendment does not apply to foreigners in foreign territory as it dismissed a claim that U.S. authorities had illegally carried out a search of a drug smuggler’s home in Mexico, saying they were not protected.
The other case cited by the city’s attorney was a 2011 case about a Mexican man who had entered the country illegally and had pleaded guilty to being an illegal alien in 5th Circuit Appeals court rejected his claim that his Second Amendment rights had been violated.
Murray Wells, a lawyer for Lopez’s family, described the legal defense as “chilling,” reported WATN.
“In an address to a federal judge in an open pleading in court, the city of Southaven has announced that it is their policy that if you are an undocumented resident of that city, you have no constitutional protections,” Wells said.
He said that the claims dispose of the right to constitutional protections, “meaning, that stormtroopers can come into your house and kill you without regard to any constitutional results or repercussions whatsoever,” Wells said, reported Local Memphis.
“If you take their arguments at face value, they can lock you up and throw away the key because you have no protections, no right to trial. They can kill you, they can use excessive force,” Wells said, “That’s what they are arguing. It’s just flat wrong. The Supreme Court has spoken to it over and over and over again.”
Lopez had been deported twice and reentered illegally, according to a Mississippi Bureau of Investigation report which also noted he had been arrested on domestic violence and DUI charges in Washington State in the 1990s.
Southaven Mayor Darren Musselwhite said in a statement provided to WMC that the city “will defend this matter in the court of law, not in the media via press conferences with ridiculously misleading soundbites.”
In the statement, he reiterated that the two officers were not indicted by a DeSoto grand jury and cleared by the FBI and Department of Justice.