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Thumbs down for Keil in lawsuit against fed agents

reporters@samoanews.com

The U.S. Court of Appeals has ruled against an appeal by former Samoa Cabinet Minister, Hans Joachim Keil, in relation to his arrest in 2008, alleging that the FBI agents who arrested him were not entitled to qualified immunity as stated in a District Court ruling that granted the agents' motion for summary judgment.

The Court of Appeals Eighth Circuit in their decision ruled that the agents were entitled to qualified immunity because they had probable cause to arrest Keil. The ruling was issued last Monday.

Keil's arrest by FBI agents occurred on Sept. 9, 2008 for alleged immigration violations. Later, the dismissal of the criminal charges on a motion from the federal government followed, which led to Keil bringing action against the federal agents, alleging that he was unlawfully arrested in violation of his rights under the Fourth Amendment.

According to the Court of Appeals decision, the district court then granted the agents' motion for summary judgment, concluding that they were entitled to qualified immunity because they had probable cause to arrest Keil.

Keil then appealed the district court's decision.

The Court of Appeals Eighth Circuit in their ruling summarized the case the United States Immigration and Customs Enforcement ("ICE") had against Keil. It indicates that the investigation began in October of 2007, and centered on the alleged "mistreatment of Samoan performers at the Dutton Family Theater in Branson, Missouri. According to information provided by a tipster, the theater had recruited Samoan performers to come to the United States for a Pacific Island dance show."

In particular, performers were found to enter the US under P-3 visas, which do not authorize other types labor other than indicated, "temporarily and solely to perform, teach, or coach, as part of a program that is culturally unique."

Keil became part of the investigation when the ICE agents found that the petitions for the P-3 visas were "supported by a letter from Keil, who purported to be an Associate Minister of the Government of Samoa."

In late November 2007, ICE agents took fourteen of the performers into custody for working outside the scope of their visas, the ruling notes.

The following month, a meeting with Keil and an ICE agent occurred, which based on statements Keil made to the agent, led to "an analysis of Keil's citizenship status from the United States Citizenship and Immigration Services ("CIS"). CIS reviewed Keil's immigration records and determined that he was not a United States citizen."

On September 9, 2008, ICE agents arrested Keil pursuant to an administrative immigration warrant.

A week later, the State Department determined that Keil was not entitled to United States citizenship through his mother, and revoked his passport, the decision states.

However, a month after his arrest, Keil discovered that he was entitled to United States citizenship, but through his father. "Keil's father was a United States citizen at birth because his father, Keil's grandfather, became a naturalized citizen in 1896. As a result, the United States Attorney moved to dismiss all charges against Keil," according to the decision.

The appeals court says that Keil then "brought this action pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), against the four federal agents involved in his investigation and arrest, alleging that his arrest and detention violated the Fourth and Fifth Amendments."

The district court granted summary judgment for the agents on all counts, holding that they were entitled to qualified immunity because the arrest was supported by probable cause.

Keil appealed.

However, the appeals court found that "the agents had at least arguable probable cause to arrest Keil for one or more violations of federal law," and the judgment of the district court was affirmed."

In their reasons, the court said "qualified immunity shields public officials from civil lawsuits when their conduct does not violate ‘clearly established statutory or constitutional rights of which a reasonable person would have known'."

"Officers may also be entitled to qualified immunity if they arrest a suspect under the mistaken belief that they have probable cause to do so, provided that the mistake is objectively reasonable." The issue, therefore, is whether the agents had ‘arguable probable cause' to arrest and detain Keil."

The court states "the arrest was lawful, moreover, if the agents had probable cause to believe Keil had violated any applicable statute, even one not contemplated by the agents at the moment of arrest."

It points out that "although the criminal complaint did not charge Keil with offenses relating to visa fraud, the agents contend that they had arguable probable cause to arrest Keil for such offenses, and we agree."

"We also conclude that the agents had arguable probable cause to arrest Keil for violating... the two offenses for which he was charged in the criminal complaint," falsely stating he was a citizen of the U.S. and falsely representing himself to be a U.S. citizen (through the use of U.S. national passport).

"The facts available in September 2008... gave the agents arguable probable cause to arrest Keil," the ruling states.



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