What new reasons will lawyers come up with next to sue?

Court: Foreign inmates cannot sue over lack of consulate contact

By: TERI FIGUEROA - Staff Writer

A federal court of appeals found Monday that foreign inmates cannot sue if police violate an international treaty by failing to tell the inmate he can contact his country's embassy after his arrest.

The case involves a Mexican national who lived in Fallbrook.

The Ninth Circuit Court of Appeals found that the Vienna Convention, an international treaty to which the United States is a signatory, applies to nations, not individuals. The treaty confers no private rights to individual detainees, and thus does not give individual people the right to sue for damages in such cases.

The lawsuit, filed in 2005, alleged that San Diego Sheriff's deputies violated the constitutional rights of then-Fallbrook resident Ezequiel Nunez Cornejo, 39, when they did not tell Cornejo at the time of his arrest for drug and gun possession about his right to contact the Mexican consulate.

Genaro Lara, the San Diego attorney representing Cornejo, said Monday that he plans to continue to pursue the case.

"We are going to take this case up to the Supreme Court," Lara said, adding that federal courts in districts like New York have ruled in favor of allowing individuals to sue over violations of the Vienna Convention.

The attorney representing San Diego County in the case did not immediately return a call for comment.

In agreeing with the trial judge's decision to dismiss the Cornejo's case, Circuit Justice Pamela Ann Rymer wrote that the treaty "does not unambiguously give Cornejo" an individual right to be told he can speak to consulate officials, even though, "for sure, he should have been notified" that he could do so.

In her dissenting opinion, Circuit Judge D.W. Nelson wrote that not only does the treaty does confer rights to individuals, those rights are enforceable by courts.

Superior Court criminal case records showed Cornejo pleaded guilty March 1, 2005 to marijuana transportation, possessing a firearm while possessing methamphetamine, and driving under the influence of drugs. He was sentenced to one year in jail and three years on probation, court records showed.

Lara said his client is not seeking to have his conviction overturned, but wants to sue local governments on his claims that police violated provisions of the treaty.

At the time he filed his federal civil suit, Cornejo also asked the court to make the case into a class action encompassing foreign nationals arrested locally between May 1, 2003, and April 1, 2005. Cornejo's claim argued that had he and others like him been told they were allowed to have consular assistance, their cases may have had different outcomes.

The district court tossed the case before addressing the issue of making it into a class action.

-- Contact staff writer Teri Figueroa at (760) 631-6624 or tfigueroa@nctimes.com.

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