Posted on June 2, 2011

Limit on Illegal-Immigrant Lawsuits Faces Test of Constitutionality

Alia Beard Rau, Arizona Republic (Phoenix), May 30, 2011

As an Arizona rancher faced a court order earlier this year to pay $87,000 to illegal immigrants he caught on his land, the Legislature set out to right what many considered a wrong.

The Legislature passed a law to make retroactive to 2004 a 2006 referendum banning courts from awarding punitive damages to illegal immigrants. The rancher, Roger Barnett, had lost a civil lawsuit alleging that he held the immigrants at gunpoint in the 2004 incident, assaulted them and caused emotional distress.

But opponents of the law say it’s unconstitutional. They say the Legislature lacks authority to overturn court decisions and that lawmakers can’t pass a law to benefit only one person.


The first test of the law’s constitutionality could come as early as Tuesday. A Cochise County judge will decide how to proceed with a request from a different rancher who says a judgment against him in a similar civil lawsuit should be overturned.

Barnett case

In March 2004, Barnett apprehended a group of illegal immigrants on his ranch and turned them over to law enforcement. The immigrants alleged that Barnett held them at gunpoint and kicked one of the women. Barnett, who claimed to have apprehended thousands of illegal immigrants crossing through his ranch, disputed the allegations.

A year later, a Texas-based civil-rights organization, the Mexican American Legal Defense and Educational Fund, filed a civil lawsuit against Barnett on behalf of the immigrants and sought $32 million in damages.


The case garnered national attention and outraged many in the Legislature. Lawmakers in 2006 passed a measure asking voters to change the state Constitution to forbid Arizona courts from awarding punitive damages to illegal immigrants. Prop. 102 passed with 74 percent approval.


In 2009, a federal court jury found that Barnett didn’t violate the civil rights of the immigrants but ordered him to pay $77,000 to the victims for the claims of assault and causing emotional distress.

Barnett appealed. This February, the U.S. Court of Appeals for the 9th Circuit upheld the lower-court ruling. With interest the amount came to about $87,000.

Less than a week later, Republican lawmakers tacked an amendment onto an unrelated bill that would put the constitutional restriction created under Proposition 102 into state statute and make that state statute retroactive to Jan. 1, 2004.

It’s illegal for the Legislature to change a voter-approved measure without getting permission from voters. Creating the state statute and changing it instead of the voter-approved constitutional provision may get the Legislature around that problem. It’s not uncommon for the Legislature to repeat things in the state Constitution in state statute.


Another case

Although the debate over the law focused on the Barnett case, another Arizona rancher believes the new law will help him as well.

In 2003, Arizona rancher Casey Nethercott and several other members of a volunteer border-patrol group called Ranch Rescue stopped two illegal immigrants on a ranch they were patrolling in Texas. The immigrants alleged that Nethercott threatened them and pistol-whipped a male immigrant in the head. Nethercott was criminally charged with aggravated assault, unlawful restraint and unlawful possession of a firearm by a felon. He was ultimately convicted of the unlawful possession charge and sentenced to serve several years in a Texas prison.

A year after the incident, the Southern Poverty Law Center filed a civil lawsuit against Nethercott and several of the other men on behalf of the immigrants. The Texas state court in 2005 issued a civil judgment of $850,000 against Nethercott. A Cochise County judge later signed over Nethercott’s ranch to the immigrants to cover some of the judgment.

The ranch was divided up and sold.

Nethercott called the passage of HB 2191 an “absolute victory.”

“I hope everybody in America knows that they stole my home,” Nethercott said. “Now, nobody else can go through this.”