Gandara v. Bennett

Decision Date22 May 2008
Docket NumberNo. 06-16088.,06-16088.
Citation528 F.3d 823
PartiesHector GANDARA, a.k.a. Hector Gandarasegredo, Plaintiff-Appellant, v. Sheriff Wayne BENNETT, Glynn County, Doe, unknown investigator, Glynn County Sheriff Office, Gary Moore, Glynn County District Attorney, Defendants-Appellees.
CourtU.S. Court of Appeals — Eleventh Circuit

Terry Lee Readdick, Steven G. Blackerby, Brown, Readdick, Bumgartner, Carter, Strickland & Watkins, LLP, Aaron W. Mumford, Brunswick, GA, for Defendants-Appellees.

Sharon Swingle, Robert M. Loeb, Douglas N. Letter, U.S. Dept. of Justice, Civ. Div., App. Section, Washington, DC, for Amicus Curiae, Dept. of Justice.

Appeal from the United States District Court for the Southern District of Georgia.

Before BIRCH and FAY, Circuit Judges, and RODGERS,* District Judge.

FAY, Circuit Judge:

The question presented in this matter is whether a foreigner who has been arrested and detained in this country and alleges a violation of the consular notification provisions of the Vienna Convention on Consular Relations (the "Treaty") can maintain an action under 42 U.S.C. § 1983. The answer to this question hinges on whether or not individual rights are bestowed by the Treaty. Although we find the issue a close one with strong arguments on both sides, we ultimately conclude the answer is "no."

Appellant, Hector Gandara ("Gandara") is a foreign national who was arrested and sentenced in state court for false imprisonment. He claims that while he was a detained foreign national, the Glynn County Detention Center officers ("Appellees") neither informed him of, nor provided him with, the right to consular notification under the Treaty. On appeal, Gandara argues that the district court erroneously dismissed his complaint contending that the Treaty grants him an individual right to seek civil damages in a United States federal court under 42 U.S.C. § 1983.

Factual Background

Gandara, an immigrant from Uruguay, entered the United States on a 90-day temporary visa. After his visa expired on June 22, 2002, he illegally remained in the country. On September 11, 2004, Gandara was arrested in Glynn County, Georgia and charged with false imprisonment. He pled guilty and was sentenced to five years in prison and five years of probation. Gandara claims that following his arrest and during the pendency of his criminal proceedings, the Appellees did not inform him of his right to contact the Uruguayan consulate and receive legal representation pursuant to Article 36 of the Treaty. Gandara also claims that Appellees subsequently denied his specific request that he be allowed to contact his consulate. As a result, Gandara asserts that these violations prevented him from obtaining needed consular assistance in order to notify family members in Uruguay of his arrest and solicit funds to obtain improved legal representation, facilitate his deportation to Uruguay instead of prosecution, and/or arrange for his sentence to be served in Uruguay rather than Georgia. Gandara sought a declaratory judgment, compensatory damages, and punitive damages for these alleged violations.

After an independent review of the record, the district court adopted the Report and Recommendation of the U.S. Magistrate Judge, which recommended that Gandara's complaint be dismissed on the grounds that it failed to state a cognizable claim under § 1983 and analogized the relief sought by Gandara to that in a habeas corpus petition. Gandara filed an objection to the Report and Recommendation and argued, among other things, that the district court improperly relied on Heck v. Humphrey, 512 U.S. 477, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994). He pointed out that he was not challenging his criminal conviction or his sentence, but was seeking civil damages and relief to remedy the violation of his Vienna Convention rights. We affirm the district court's judgment albeit for different reasons.

Standard of Review

We review a grant of a motion to dismiss for failure to state a claim de novo, "accepting the allegations in the complaint as true and construing them in the light most favorable to the plaintiff." Spain v. Brown & Williamson Tobacco Corp., 363 F.3d 1183, 1187 (11th Cir.2004).


We begin by noting that the district court improperly dismissed Gandara's complaint by relying on Heck v. Humphrey to decide that Gandara's civil complaint on alleged violations of the Treaty was barred because his criminal conviction had not been set aside and a judgment in a § 1983 case could affect the validity of his conviction or sentence.1 Under the Supreme Court's ruling in Sanchez-Llamas v. Oregon, 548 U.S. 331, 126 S.Ct. 2669, 165 L.Ed.2d 557 (2006), a violation of the Vienna Convention's Article 36 does not necessarily require reversal of a criminal conviction or sentence. Thus, in our opinion, Heck does not bar the claim being made here. Gandara is not attacking the validity of his criminal conviction or sentence, but rather pursuing a civil claim for money damages and other civil remedies. There is no legal inconsistency.

This Circuit has not expressly addressed the issue of whether the Vienna Convention contains private rights and remedies enforceable in our courts through § 1983 by individual foreign nationals who are arrested or detained in this country. We have previously commented, however, on the issue of private rights in the context of criminal cases and indicated that we would follow the lead of the First and Ninth Circuits. See United States v. Cordoba-Mosquera, 212 F.3d 1194, 1196 (11th Cir.2000) (the First and Ninth Circuits have indicated that Article 36 does not create privately enforceable rights). Today, for practical and judicial economy reasons, we are going to decide the specific issue presented.2

A reading of the text of the Treaty suggests that the scenario established would include several steps: (1) Upon arrest and detention, the foreign national would be advised of the notification procedures established and available, (2) The individual would be asked whether or not he/she desires notification to be given to the consular post of his/her state, and (3) Depending upon the decision made by the individual, notice would be given or no action taken.

All who have dealt with this issue recognize the language of the Treaty's preamble, which states that "the purpose of such privileges and immunities [created by the Treaty] is not to benefit individuals . . . ." Vienna Convention on Consular Relations, pmbl. In spite of this provision, those who find that there are individual rights turn to Article 36, which reads:

[I]f he so requests, the competent authorities of the receiving State shall, without delay, inform the consular post of the sending State if, within its consular district, a national of that State is arrested or committed to prison or to custody pending trial or is detained in any other manner. Any communication addressed to the consular post by the person arrested, in prison, custody or detention shall also be forwarded by the said authorities without delay. The said authorities shall inform the person concerned without delay of his rights under this subparagraph.

Vienna Convention on Consular Relations, Apr. 24, 1963, 21 U.S.T. 77, 596 U.N.T.S. 261, art. 36(1)(b) (emphasis added). The Seventh Circuit in Jogi v. Voges, 480 F.3d 822 (7th Cir.2007), concluded that Article 36 is worded in a way to guarantee that the right conferred by Article 36 belongs to the individual and not the respective governments. That court reasoned that "[i]t is a mistake to allow general language of a preamble to create an ambiguity in specific statutory or treaty text where none exists. Courts should look to materials like preambles and titles only if the text of the instrument is ambiguous." Id. at 834. That court concluded that once a plaintiff has demonstrated that a treaty confers an individual right, then the right is presumptively enforceable by § 1983. See id. at 835; Gonzaga University v. Doe, 536 U.S. 273, 284, 122 S.Ct. 2268, 153 L.Ed.2d 309 (2002).

The dissenting opinion in Cornejo v. County of San Diego, 504 F.3d 853, 872 (9th Cir.2007) also follows this reasoning, by stating that:

[I]t is clear that Article 36(1)(b) confers an individual right. Insofar as it is relevant, the language in the preamble of the Vienna Convention, the congressional intent of the ratifying Senate, the contemporaneous position of the United States Department of State and the travaux préparatoires do not undermine this interpretation. In fact, the contemporaneous position of the United States Department of State and the discussion of Article 36(1)(b) in the travaux préparatoires supports my conclusion that Article 36(1)(b) confers an individual right.

This dissent, like Jogi, urges that these individual rights are presumptively enforceable under § 1983.

While the above arguments in favor of individual rights under the Treaty are impressive, we do not follow them for the following reasons.

First, the "context" of a treaty includes its preamble, Vienna Convention on the Law of Treaties art. 31(2), May 23, 1969, 1155 U.N.T.S. 331, and we rely on it to provide context for the terms of Article 36(1)(b) because "a treaty must be interpreted as a whole in light of its object and purpose, including the preamble." Cornejo, 504 F.3d at 861 n. 13 (citing Vienna Convention on the Law of Treaties art. 31(2); Restatement (Third) of Foreign Relations Law § 325(1) (1987)). The preamble to the Vienna Convention is clear that the drafters did not intend to create individual rights. It states that the signatories "[r]ealiz[ed] that the purpose of such privileges and immunities [created by the Treaty] is not to benefit individuals but to ensure the efficient performance of functions by consular posts on behalf of their respective States." Vienna Convention on Consular Relations, pmbl....

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