City argues Constitution doesn't protect undocumented immigrant killed by police

MEMPHIS – In a civil lawsuit over the fatal shooting of Ismael Lopez by police, an attorney for the city of Southaven argued Lopez lacked constitutional rights because of his criminal record and undocumented immigration status – an argument lawyers for the Lopez family rejected as "insane."

"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," wrote the attorney for the city, Katherine Kerby of Columbus, Mississippi. Kerby represents former Southaven police officer Zachary Durden, who investigators concluded fired the fatal shot.

Lopez was shot and killed by Southaven police in July 2017 at his home.

Courts have concluded that people living in the country illegally do have various rights and protections. In 1982, the U.S. Supreme Court ruled in the case Plyler v. Doe that children have the right to a basic education, regardless of immigration status.

An attorney for the Lopez family, Aaron Neglia, called the city's argument "the most insane thing I've ever heard."

He claimed the city's position is "because he's an undocumented immigrant who has no constitutional protections, it's OK for the city of Southaven to kill him."

In a news conference, lawyers appeared alongside Claudia Linares, Lopez's widow. "No hay palabras," she began in Spanish, which means "There are no words."

Kerby said she believes the controlling law is a U.S. Supreme Court case from 1990, United States v. Verdugo-Urquidez.

That case had to do with a suspected drug smuggler who lived in Mexico. According to a synopsis of the case, he was apprehended in Mexico by Mexican authorities, then handed over to U.S. officials, who searched his home in Mexico and found evidence.

The defendant argued that the items seized should not be admitted as evidence because authorities violated his Fourth Amendment rights against unreasonable search and seizure. The Supreme Court ruled that the Fourth Amendment does not apply to foreigners in foreign territory or to international waters.

Kerby said she also relied on a case in 2011 from the 5th Circuit Court of Appeals, United States v. Portillo-Munoz. That case had to do with a Mexican man who entered the USA illegally and possessed a firearm, according to a synopsis. The Mexican argued he had a Second Amendment right to bear arms, but people in the country illegally are barred from owning guns. The appeals court ruled against him.

In a response to the court filings, Lopez's lawyers said Verdugo-Urquidez doesn't apply because it had to do with an arrest and search on foreign soil, not in the USA.

The attorneys pointed to a paragraph from the Portillo-Munoz decision, in which judges ruled that the decision did not impact Fourth Amendment protections against government abuse.

More broadly, the lawyers argued constitutional protections apply to "all persons" in the USA, not just citizens.

The lawyers attacked arguments from the city attorney that Linares wasn't really married to Lopez.

Lawyers filed a marriage certificate showing the couple were wed in Crittenden County, Arkansas.

The city argued that Linares lacks standing because she is also an undocumented immigrant.

Attorney Murray Wells said Linares' immigration status is irrelevant, because attorney Ed Autry is acting on behalf of the estate.

The family's attorneys said the arguments against Linares are so offensive that they should be sanctioned by the court.

Lopez was an auto mechanic in his neighborhood, and his shooting sparked complaints and protests.

A report from the Mississippi Bureau of Investigation includes witness statements that during a search for a domestic violence suspect, police officers went to the wrong home. A dog ran out of the home, and one of the Southaven officers allegedly shot at it. The other officer fired into the house, according to the investigation.

A lawyer for the police officers alleged that Lopez pointed a .22-caliber rifle at them, and an MBI report reached the same conclusion. Lawyers for the family dispute this.

Lopez had a criminal record dating from the late 1990s in Washington state on charges of domestic violence and driving under the influence, according to the MBI. The report says he had been deported more than once to Mexico and returned without permission.

The report says three police bullets passed through the home's front door, and one hit Lopez in the back of the head, killing him.

Follow Daniel Connolly on Twitter at @danielconnolly.

This article originally appeared on Memphis Commercial Appeal: Constitution doesn't protect immigrant killed by police, city says