ICE Director Says Officers Are Now Allowed To Make Arrests Without Warrants

Legal Issues

from the constitution-apparently-just-left-wing-virtue-signalling dept

The administration’s racist goon squads have absolutely been steamrolling the Constitution since Trump’s return to office. When ICE et al started roving throughout the nation looking for anyone non-white enough to be foreign, all rights were considered expendable.

The DHS made swift work of the Fifth, Sixth, and 14th Amendments by denying arrestees due process and access to legal representation. Officers grabbed people, sent them far from their home states, and shoved them into planes headed to foreign hellhole prisons as quickly as possible in hopes of nullifying the inevitable legal challenges.

The 14th Amendment got kicked while it was still down when the administration decided birthright citizenship was no longer a thing. And the entire administration simply pretends the First Amendment doesn’t apply to anyone who says things or does stuff it doesn’t like.

The Fourth Amendment got turned into a doormat last May when the DHS Office of Legal Counsel (usurping the role usually held by the DOJ Office of Legal Counsel) told federal officers they no longer needed judicial warrants to enter homes so long as they could semi-credibly claim the person they were seeking was subject to immigration court order of removal.

Now, ICE is coming for what’s left of the Fourth Amendment, as the New York Times reports:

Amid tensions over President Trump’s immigration crackdown in Minnesota and beyond, federal agents were told this week that they have broader power to arrest people without a warrant, according to an internal Immigration and Customs Enforcement memo reviewed by The New York Times.

The change expands the ability of lower-level ICE agents to carry out sweeps rounding up people they encounter and suspect are undocumented immigrants, rather than targeted enforcement operations in which they set out, warrant in hand, to arrest a specific person.

“Amid tensions,” Polish journalists wrote in late 1939. That bit of coyness aside, there’s additional coyness in the memo issued by ICE’s acting director Todd Lyons. There’s very little in the way of legal citations. But there’s definitely a permission slip ICE agents can write for themselves when they head out to terrorize US residents.

Lyons thinks he can redefine legal terms on the fly to allow immigration officers to arrest people without warrants. The memo says “flight risk” (which allows for a warrantless arrest) is not the correct term since it can only be applied after an arrest:

Without explanation, and without any formal policy, ICE previously applied the phrase “likely to escape” as being the equivalent of “flight risk. ” This unreasoned position was incorrect. In fact, there are significant differences between the two standards in the immigration regulatory context and immigration officers should avoid conflating them. A flight risk analysis looks at whether an alien is likely to attend future immigration court hearings, appear before ERO as directed, surrender for removal, and comply with other immigration obligations. Flight risk determinations are made after an alien’s arrest, where the alien has already been identified, fingerprinted, interviewed, and may have had DNA collected.

That’s simply no good for this administration — especially when immigration forces are expected to come up with 3,000 arrests per day. Lyons says (again, without supporting legal citations) that “likely to escape” should be the standard for warrantless arrests, which is a determination agents should be able to make on their own without having to seek an arrest warrant. After all, if they go get a warrant, there’s a good chance the person they want to arrest might be a bit more difficult to find.

While the flight-risk analysis assesses whether an already identified and detained alien is likely to comply with future immigration obligations such as court appearances and appearances before ERO , the likelihood-of-escape analysis is narrowly focused on determining whether the person is likely to escape before the officer can practically obtain an administrative arrest warrant, while in the field. This on-the-spot determination as to the likelihood of escape is often made with limited information about the subject’s identity, background, or place of residence and no corroboration of any self-serving statements made by the subject.

The goalposts are moved. If an officer thinks a person they just happened to come across while performing an arrest with an actual warrant might not stick around to be arrested later, the officer can just arrest them as well, citing the lowered standard of “likely to escape.”

And what makes one “likely to escape” under this arbitrary, completely made the fuck up “legal” standard? Well, it’s a fine blend of “anything” and “everything.”

The subject’s behavior before or during the “encounter,” which covers anything from “suspicious behavior” to simply refusing officers’ commands to let them in a house (without a warrant) or yank them from a car (without a warrant). For that matter, being in a car is all that’s needed to be considered “likely to escape.” (“The subject’s ability and means to promptly depart the scene.”)

Or maybe the “subject” looks like they just may be healthy enough to leave on foot:

The subject’s age and health…

Also on the list: documents an officer “suspects” might be fraudulent (with no demand made that officers attempt to verify documents before engaging in a warrantless arrest). The list also says officers can make warrantless arrests if they suspect the person has violated any immigration law, even though they are not required to do anything at all to seek information that might corroborate their suspicions.

The end result is exactly what this administration wants it to be: a blank check for warrantless arrests that can then be justified after the fact by the officers who performed the arrest. And if they happen to be wrong, they’ll just cut the person loose, secure in the knowledge they’ll never be punished by their superiors, much less held accountable in court now that the Supreme Court has made it impossible to sue federal officers for rights violations.

Given this further erasure of civil rights, one can only assume the coming weeks will bring us DHS/ICE memos declaring the use of private homes as federal operation centers to be well within the confines of the Third Amendment. Perhaps we’ll even see some women jailed for attempting to vote during the upcoming midterms. ALL RIGHTS MUST GO!, says the administration proudly hosting this dumpster fire of a civil liberties fire sale. And once again, the party claiming to make America great continues to eliminate all the stuff that makes America America.

Filed Under: 4th amendment, bigotry, cbp, ice, mass deportation, todd lyons, trump administration, warrants