On October 30, U.S. federal district court Judge Alia Moses issued a temporary restraining order (TRO) preventing the Biden administration from “removing” or “disassembling, degrading, tampering with, or transforming” a concertina wire fence along the Rio Grande near Eagle Pass, Texas, with a limited exception for medical emergencies. Just when you think things can’t get any more bizarre at the Southwest border, they do, and just when you think the border battles between the state of Texas and the Biden administration can’t get more heated, they have.
The Wire Barrier. As both my colleague Todd Bensman and I reported in early May, the state of Texas began installing concertina wire barriers along the banks of the Rio Grande in anticipation of a massive migrant surge CDC orders mandating the expulsion of illegal migrants, issued under Title 42 of the U.S. Code, which expired on May 11.
From my vantage point along the river in El Paso, the wire stretched as far as the eye could see, backed by vehicles from the state’s Department of Public Safety (DPS) and Military Department (TMD), all there as part of the state’s “Operation Lone Star”.
Lone Star was launched by Gov. Greg Abbott (R) in March 2021 partly in response to waves of illegal migrants who began crossing the border illegally after President Biden took office, and partly due to the administration’s failure to respond to that migrant incursion. As Abbott explained at the time:
The crisis at our southern border continues to escalate because of Biden Administration policies that refuse to secure the border and invite illegal immigration. ... Texas supports legal immigration but will not be an accomplice to the open border policies that cause, rather than prevent, a humanitarian crisis in our state and endanger the lives of Texans. We will surge the resources and law enforcement personnel needed to confront this crisis.
Under the initial phase of the operation, the state sent 1,000 DPS troopers to the border, while in May of that year the governor issued a disaster declaration that covered a number of border counties (including Maverick, where Eagle Pass is located) that authorized the use of National Guard resources, as well.
The concertina wire is there to prevent smugglers and illegal entrants from crossing into populated areas where they could disappear before arrest, and to prevent migrants from attempting to ford the wildly unpredictable river.
Texas’ October 24 Complaint. In September, Abbott complained that DHS was cutting that wire to allow aliens to cross the river illegally:
Texas installed razor wire in Eagle Pass to stop illegal crossings.
Today the Biden Admin CUT that wire, opening the floodgates to illegal immigrants.
I immediately deployed more Texas National Guard to repel illegal crossings & install more razor wire. pic.twitter.com/eMtLS8Z6WI
— Greg Abbott (@GregAbbott_TX) September 20, 2023
Relations between the state and the administration apparently didn’t get any better thereafter, as on October 24, the state filed a complaint in the U.S. District Court for the Western District of Texas, in which it contended:
Since September 20, 2023, federal agents have developed and implemented a policy, pattern, or practice of destroying Texas’s concertina wire to encourage and assist thousands of aliens to illegally cross the Rio Grande and enter Texas. Federal agents not only cut Texas’s concertina wire, but also attach ropes or cables from the back of pickup trucks to ease aliens’ ability to illegally climb up the riverbank into Texas. And they regularly cut new openings in the wire fence, sometimes immediately after Texas officers have placed new wire to plug up gaps in fencing barriers.
Border Patrol apprehensions in its Del Rio sector — which includes Eagle Pass — surged from fewer than 25,000 in July to more than 45,000 in September. The state asserted that even as illegal entries were on the rise there, CBP’s fence-cutting efforts ramped as well, going from approximately 20 such incidents reported by Texas in the first half of 2023 to 20 separate incidents between September 20 and the filing of its complaint.
“On each of these occasions,” the complaint alleged, “CBP has entered onto state, municipal, or private land to destroy state property”, as Texas had “not placed concertina wire on any federal land near Eagle Pass.” Accordingly, the state argued, it was bringing suit “to end this ongoing, unlawful practice which undermines its border security efforts”.
There are six separate bases on which the state asks the court to “enjoin the federal defendants from continuing to destroy and damage private property that is not theirs — without statutory authority and in violation of both state and federal law”, two of which are premised, respectively, on the common law torts of conversion and trespass to chattels.
As the Court of Appeals for Texas explained in 2012:
Conversion is the unauthorized and wrongful assumption and exercise of dominion and control over the personal property of another to the exclusion of, or inconsistent with, the owner's rights . ... To establish a claim for conversion of personal property, a plaintiff must prove (1) he owned or had legal possession of the property or entitlement to possession; (2) the defendant unlawfully and without authorization assumed and exercised control over the property to the exclusion of, or inconsistent with, the plaintiff's rights as an owner; (3) he demanded return of the property; and (4) the defendant refused to return the property.
Trespass to chattels is defined at common law as “an intentional act by a defendant that interferes with the chattel”, chattel being any personal property that can be moved (as opposed to real property, which can’t).
In a 1981 opinion, the Supreme Court of Texas held that liability will not necessarily attach to such a trespass “unless the wrongful detention is accompanied by actual damage to the property or deprives the owner of its use for a substantial period of time”.
It continued: “If the wrongful detention seriously interferes with the owner's right to control the” personal property, “there is not only a trespass but a conversion which justifies an action to require the actor to pay the full value of” such property. Thus, the state’s two tort claims are linked.
Here, according to Texas’ complaint, DHS’s “policy, pattern, or practice of intermeddling with [its] concertina wire has caused actual damage, diminishing the wire’s utility as a barrier fence and depriving” Texas “of its use for a substantial time”.
While the state is seeking costs, reimbursement for the loss of its chattels is not really the focus of its suit; it just wants the administration to stop destroying its concertina wire barriers.
Texas’ Emergency Motion for a Temporary Restraining Order. Things between the state and the feds quickly devolved from there, according to an Emergency Motion for a Temporary Restraining Order of Stay of Agency Action filed by the state on October 27.
The state alleged therein that “just two days after Texas notified them of this lawsuit, federal agents escalated matters, trading bolt cutters for an industrial-strength telehandler forklift to dismantle Texas’s border fence”.
It continued: “Federal agents used hydraulic-powered pallet forks to rip Texas’s fence — concertina wire, fencing posts, clamps, and all — out of the ground, holding it suspended in the air in order to wave more than 300 migrants illegally into Texas”. (This is illustrated by the above photos from Texas's motion.)
I haven’t practiced tort law in over three decades, but here’s something I do remember: When you are being sued for damaging someone’s personal property, it’s best not to ramp up the means you’re using to inflict such damage, at least not before the court can sort it all out.
What rationale did the administration offer for destroying Texas’ property? According to the motion, the fence was destroyed “simply ‘to allow [illegal] aliens to enter & be processed’” (brackets in original). That appears to contravene section 103(a)(5) of the Immigration and Nationality Act, which states that the secretary of Homeland Security “shall have the ... duty to control and guard the boundaries and borders of the United States against the illegal entry of aliens”.
Judge Moses’ Order. Judge Moses granted Texas’ request for a TRO, finding that the state was likely to succeed on its trespass to chattels claims given that “ the concertina wire is state property;  [DHS has] exercised dominion over that property absent any kind of exigency; and  [DHS has] continued to do so even after being put on notice of [the state’s] interest in the property.”
The state had argued that the issuance of an injunction in this case was in the public interest on two grounds: first, that the state’s “use of concertina wire deters illegal entries and activities, including human trafficking, drug smuggling, and terrorist infiltration”; and second that DHS’s actions are “unlawful”, but that even if there were a lawful basis for its acts, the department should have sought redress “through legal proceedings, not self-help actions.”
Judge Moses concluded that “the balance of interests favors” the issuance of an injunction, “but just barely”, and he was quick to recognize “a countervailing public interest” in allowing Border Patrol agents to move or cut through the concertina wire to save migrants in distress.
Note that this is just the beginning of the case, and the judge himself recognized that any resolution will require him to balance three separate interests: those of the owners of the land on which that fence sits; the state’s rights in protecting those owners and in limiting its costs due to additional illegal immigration; and the federal government’s “responsibilities over national security and border security, and its powers to effectuate its duties, up to and including the destruction of private or state property”.
Two of those interests are explicable. The owners of the land on which that fencing sits are likely acting, at least in part, out of self interest in protecting their property from trespassing migrants and smugglers. The state plainly wants to limit the expenses that hundreds of thousands of new illegal migrants will impose on it, but it’s also erecting those barriers to protect its border-adjacent citizens and its state sovereignty (and the nation as a whole).
Why the administration wants to continue this flood of illegal migration across the Rio Grande by removing Texas’s concertina wire barriers is anybody’s guess. Perhaps next time, though, President Biden can explain it to Gov. Abbott before sending in the forklifts to rip those barriers out of the ground.