Federal appellate judges have refused to overturn the civil verdict against a Cochise County rancher found guilty of illegally imprisoning 16 border crossers.
In a brief and unsigned opinion, the three-judge panel of the 9th Circuit Court of Appeals rejected arguments by Roger Barnett that the Tucson jury which found him liable should have been told by the trial judge that they could consider his claim of self defense.
The judges said Arizona law allows someone to use or threaten to use physical force against another when a reasonable person would believe that is necessary to protect against the other party's use or attempted use of physical force.
"(Barnett) himself conceded on the stand, however, that none of the plaintiffs were armed or threatened him in any other way," the appellate judges wrote. That, they said, makes any claim of self-defense unwarranted.
Attorney David Hardy said that conclusion ignored the evidence presented at trial.
"The testimony showed Roger had been told by federal agents his life was in danger from the drug cartels," Hardy said. "He's outnumbered 20-to-1 in the desert, he doesn't know if they're smugglers or not."
Hardy said while Barnett had drawn his weapon, that was before he found out the immigrants were unarmed and not threatening.
"And according to his testimony, then he holsters his pistol once he knows that," the attorney said.
Hardy acknowledged that the immigrants testified to the contrary about Barnett having his weapon. But he said that made it a question of fact which the jury should have been allowed to decide.
In the new ruling, the appellate judges also said there was sufficient evidence to support the jury's findings that the plaintiffs suffered "severe emotional distress."
They said nothing in Arizona law requires someone to incur a physical injury to make that claim. And they noted each of the plaintiffs testified about ongoing anxiety, depression and insomnia.
The case stems from a 2004 incident where the plaintiffs said they were captured, assaulted and unlawfully detained at gunpoint by Barnett as part of a conspiracy based on his feelings toward Latinos, and illegal entrants in particular. Barnett has said he identified 10,000 illegal border crossers in the last decade.
Hardy had argued to trial Judge John Roll there was no evidence of a conspiracy, but simply that Roger and Barbara were checking for damage on their 22,000-acre ranch, and responding to barking by their dog. He also said there is no actual evidence of race-based animus - which is covered by the law - but only that the plaintiffs entered the country illegally.
And Hardy said border crossers are not a protected class to claim civil rights violations, particularly because their status "results from their own conscious choice to break the law."
Two years ago a jury found Barnett liable on claims of assault and infliction of emotional distress, ordering him to pay $77,804 in damages.
The jurors, however, concluded Barnett did not violate the civil rights of the illegal immigrants. They also found in his favor on the claims of the immigrants on charges of battery and false imprisonment.