Walter Olson
It can be hard to get some Americans interested in the well-documented problem of ICE and Border Patrol abuse, perhaps because they assume that the rights being trampled are “only” those of non-citizens rather than people like them (although every modern justice on the Supreme Court, including Samuel Alito, Clarence Thomas, and Antonin Scalia, has taken the view that non-citizens on American soil do have important constitutional rights that are vital to protect).
It is crucial to grasp, though, that ICE and Border Patrol also routinely violate the rights of US citizens, both the naturalized kind and those born right here. With the Minnesota campaign of recent weeks, these assaults on citizens’ rights appear to be multiplying rapidly.
Until lately, the citizens most visibly targeted for abuse have often been reporters and protesters. Members of those groups have been repeatedly attacked while taking pictures of ICE actions in a nonobstructive way or protesting nonviolently, in what looks very much like a practice that is being tolerated by policy.
In an October survey, ProPublica found 170 citizens who had been detained, more than 20 of whom “have reported being held for over a day without being able to call their loved ones or a lawyer. In some cases, their families couldn’t find them.” A January ProPublica survey of more than 40 uses of chokeholds and other dangerous holds banned by federal rules found that citizens were among the targets.
In fact, US citizens who never realized they were at the scene of any confrontation have also faced long, humiliating, and uncomfortable detention simply for living in the wrong apartment building or working for the wrong employer. In recent weeks, with the masked federal paramilitary occupation of Minneapolis/St. Paul, the apparent Fourth Amendment violations have multiplied rapidly, both in street stops of US citizens who have done nothing to arouse reasonable suspicion and in forced entry to homes, absent any warrant signed by a judge.
Cato alum and police abuse expert Radley Balko, in a powerful and wide-ranging piece for the New York Times, links to what he finds persuasive evidence of racial profiling in the 3,000-agent federal push. ICE’s use of traffic stops blew up this Tuesday after a group of Minnesota law enforcement executives gave a press conference at which Brooklyn Park chief Mark Bruley, who directs police in the state’s sixth-largest city, said that in the past two weeks departments like his have been deluged with reports from residents who’ve been stopped by ICE with no cause and had their paperwork demanded.
What’s more, the same thing was happening to their own off-duty police officers, though only those who were members of racial minorities; these officers knew police practice and understood the constitutional implications of a no-cause vehicle stop. Agents boxed in the car of one of his officers while she was driving, demanded her citizenship ID, drew guns, and knocked her phone out of her hand when she picked it up to record. When told she was a police officer herself, they left without explanation.
The other Fourth Amendment issue that blew up this week followed widely reported incidents in which agents smashed down the doors of US citizen and St. Paul resident Scott Thao (leading him out half-clad into 10-degree weather) and Garrison Gibson of Minneapolis, in both cases without a judicial warrant. Thanks to a whistleblower, it has now emerged that ICE has based raids like this on its very own interpretation of the Fourth Amendment, privately promulgated to some members of its staff, under which it can force its way into houses with only an in-house administrative warrant, rather than a warrant signed by a federal judge. That breaks with longstanding practice and is very likely inconsistent with modern Supreme Court rulings on warrantless entry.
It admitted the existence of the policy this week, but the whistleblower says the memo was handled in a hush-hush manner, being given to a subordinate to read, for example, on condition that it be handed back to a supervisor waiting there on the spot, with no copy kept. Cato alum and privacy expert Julian Sanchez writes that “there would be no conceivable reason to handle the policy this way if they really believed it were legally defensible.”
Many advocates of constitutional liberty have begun pushing back against ICE and Border Patrol’s incursions on the Bill of Rights. More should join them.