An incomplete explanation, 128th draft, Unfinished
or
Nobody is being "Disappeared" off the street
I.
Junior High School Civics: For those who have forgotten, or who never
learned, the three branches of the U.S. Government have an order of precedence
with regard to all actions the government engages in.
a.
The Legislative Branch creates laws.
Those laws tell the Executive Branch what it can and will do. The Legislative
Branch was intended to be the most powerful of the three, though FDR somewhat
changed that with some restructuring under The New Deal, and our modern
Congress has chosen to abdicate their responsibility to the President, while
still having the same authorities. All the power, none of the accountability. Why
do the voters allow this?
b.
The Executive Branch has specific
authorities, as provided for in The U.S. Constitution, but also is given it’s
mandates by Congress. Without statutory authorities provided by Congress, the
Executive Branch is very limited in what it can do. It is disingenuous for a
member of Congress to say the Executive Branch can’t execute, administer, or
enforce laws when Congress is the body that told the Executive Branch
specifically to do those very things. To say “(insert president here) can’t do
that, it’s illegal” had better be backed up by some serious evidence based in
law and the Constitution, or they’re talking out their asses, pandering to an
ignorant constituency.
i.
Federal Law Enforcement agencies almost all fall
under the Executive Branch, though a small handful fall under the other two
branches.
c.
The Judicial Branch interprets law and
establishes if an action is congruent with the Constitution and laws, and if a
law is in accordance with the Constitution. If a law is unconstitutional, the
Supreme Court has the authority to strike that law down, voiding it. If the
Executive Branch does something illegal, it is up to the Judicial Branch to
determine that based on their interpretation of The Constitution, the
constitutional authorities granted the office of The President, and the
specific laws governing the actions engaged in.
II.
For the purposes of federal law enforcement,
“Law Enforcement Officer” is defined in 5 USC 8331(20) as an
employee, the duties of whose position are primarily the
investigation, apprehension, or detention of individuals suspected or convicted
of offenses against the criminal laws of the United States, including an
employee engaged in this activity who is transferred to a supervisory or
administrative position.
a.
While there are members of the American
population who wish to deny it, ICE, the U.S. Border Patrol, and the related
agencies do fall under the Title 5 definition of Law Enforcement. They receive
their credentials as a result of training at the Federal Law Enforcement
Training Center, which is the agency tasked with setting the standards for law
enforcement in the U.S. federal government.
b.
Immigration enforcement officials derive their
authority from specific laws:
i.
Immigration and Nationality Act 1952 (INA)
1.
Revised/updated in 1965, 1986, 1990
2.
Sections 274(a)
3.
287(a)(1), (a)(2), (a)(3)
4.
287(b)
ii.
19 USC
1589a(3) Arrest for Federal misdemeanors committed in their presence and for
ANY federal felonies
1.
While the agency’s
name is the “Border Patrol”, their authority extends throughout the entire
United States and its territories.
2.
Their primary focus is on America’s international
borders and coastal waters and is enhanced within 100 miles of the U.S.’s
international borders.
iii.
19 USC 1959a(a) Seize anything used for
smuggling merchandise
iv.
U.S. Border Patrol checkpoints are operated
under the authority of INA 287 (a)(1) and (a)(3), and were deemed a reasonable
intrusion against the 4th Amendment by the Supreme Court in U.S. vs
Martinez-Fuerte – 428 U.S. 543 (1976)
c.
Each alphabet agency has a specific focus, but
they also have the authority to arrest for ANY federal crime. Certain
qualifications have to be met for different types of crime, but yes, the U.S.
Border Patrol, despite its name, can arrest ANYONE for a violation of ANY
federal law ANYWHERE in the United States and its territories. The
misunderstanding of the Border Patrol only being able to operate within a specific
distance of the nation’s international boundaries is derived from an incorrect
understanding of laws allowing for ENHANCED authority within specific “air
miles” of the border, in graduated increments. These are violations of the 4th
Amendment but have been determined to be reasonable exceptions by the Supreme Court.
d.
100-mile Border Zone authority
i.
The 100-mile zone: This area is defined as
within 100 air miles of any external U.S. boundary, encompassing the homes of
over 200 million people and including major cities.
ii.
Vehicle stops: Agents can make "roving
stops" of vehicles if they have "reasonable suspicion" of
illegal activity, referred to as “RSIA”.
Despite propaganda to the contrary, Immigration officials do NOT stop
vehicles just because of the occupants’ ethnic appearance, nor do they need
Probable Cause in order to engage in a vehicle stop.
iii.
Private property: Agents can enter private land and
curtilage (but not dwellings) to search for noncitizens within 25 miles of the
border.
iv.
Limitations
1.
Warrant requirement: To enter a private
dwelling, Border Patrol agents must have a warrant or the consent of the
occupants, or probable cause to believe there is a threat to life.
2.
Constitutional rights: The Fourth Amendment's
protections against unreasonable searches and seizures apply throughout
the United States, including within the 100-mile border zone.
v.
Ports of entry: At ports of entry (air, land,
and sea), immigration official have statutorily-derived authority to search and
inspect individuals, vehicles, and cargo, and can search electronic devices
with strict guidelines.
III.
Criminal vs Administrative violations
a.
There is significant misunderstanding of where
immigration laws fall in the spectrum of severity. Some people incorrectly
equate “administrative violation” as equating to “misdemeanor”. While an
administrative violation is not addressed as severely as a criminal one, it is
still a criminal act.
i.
Criminal law addresses acts against society and
can result in punishments like imprisonment.
ii.
Criminal law
1.
Purpose: To maintain order in society by
criminalizing and punishing harmful actions against the collective.
2.
Parties: The state (prosecutor) versus the
defendant.
3.
Penalties: Can include imprisonment, fines,
probation, loss of rights, and capital punishment.
4.
Standard of proof: "Beyond a reasonable
doubt".
5.
Examples: Theft, assault, murder.
iii.
Administrative laws govern how individuals and
businesses interact with government agencies. These are addressed with
sanctions like fines.
1.
Purpose: To regulate the conduct of individuals
and businesses in relation to government agencies and enforce agency rules and
regulations.
2.
Parties: The government agency versus an
individual or business.
3.
Penalties: Typically includes fines, remedies
like injunctions, or suspension/revocation of licenses. Imprisonment is not a
penalty in administrative law.
4.
Standard of proof: "Preponderance of the
evidence," or more likely than not.
5.
Examples: Violations of environmental
regulations, professional misconduct, or safety standards enforced by a
specific agency.
b.
Key differences include the standard of proof,
with criminal cases requiring proof "beyond a reasonable doubt" and
administrative cases often using "a preponderance of the evidence,"
and the penalties imposed, as administrative law does not include jail or
prison time.
c.
Immigration
violations are addressed by BOTH criminal AND administrative laws, allowing for
minor violators to be addressed with administrative penalties, and serious
violators to be addressed with criminal prosecution. Enforcement officials
coordinate this decision with the regional U.S. Attorney’s office on a
case-by-case basis.
d.
A violation of administrative regulations can
sometimes also be a criminal offense, especially if the administrative rule has
been incorporated into criminal law.
e.
Administrative agencies can investigate, but if
they uncover criminal behavior, they often refer the matter to prosecutors to
initiate a criminal case.
f.
Administrative penalties can sometimes be an
alternative to criminal prosecution for a violation.
g.
Immigration
violations are NOT a civil matter and are not “only” a misdemeanor. They are a violation of both criminal AND
administrative statutes. How a particular case is pursued depends on the
individual violator’s criminal history (if any), how they ended up in custody,
the court district the apprehension occurs in, how swamped the U.S. Attorney is
in that jurisdiction, and other factors that are specific to each case.
IV.
What
are civil matters?
a.
Then we get into “civil” matters. There is
another misunderstanding that somehow Immigration Laws are only “civil” issues.
i.
A civil matter is a violation of law that is a
private dispute between two or more parties. A criminal matter is seen as a
violation against society. Civil matters are usually addressed in civil
court. The punishment is usually
monetary, requiring the responsible party to pay damages or fulfill an
obligation, though other punishments are possible.
ii.
Examples civil matters would be breach of
contract, property disputes, and negligent harm.
b.
An immigration case might be tried IN a civil
court, but only because the criminal and administrative courts are overwhelmed
at the time and case volumes have to be addressed sooner than later. They’re
still addressed as criminal or administrative violations, not AS civil matters.
V.
There
are different “levels” of suspicion, for legal purposes. Law enforcement
activities are conducted in response to, and require, those different levels of
suspicion. A vehicle stop does not require Probable Cause; an arrest does. A
warrant requires Probable Cause, but an arrest does NOT require a warrant at
the time it is conducted.
a.
Mere suspicion is a hunch, a
“feeling”. Something is odd, and the official is going to investigate, but they
have to do so with a light touch.
i.
A hunch or feeling without concrete evidence.
ii.
Does not provide a legal basis for a stop or
arrest.
iii.
Example: A police officer feeling that someone
"looks suspicious" without other specific, articulable facts.
b.
Reasonable suspicion is the next
legal standard, requiring specific “articulable facts” for a brief detention.
i.
A legal standard that requires specific,
articulable facts to suspect that criminal activity is occurring or has
occurred.
ii.
It is more than a hunch, but less than probable
cause.
iii.
Allows for a brief stop and detention to
investigate.
iv.
Example: A person is seen stumbling out of a bar
and swerving while driving, which leads to a traffic stop.
c.
probable cause is a higher
standard requiring the reasonable belief of a crime having occurred for
an arrest or search warrant.
i.
A higher legal standard than reasonable
suspicion.
ii.
Requires a reasonable belief, based on specific
facts, that a crime has been committed, is being committed, or is about to be
committed.
iii.
Is required for an arrest or to obtain a search
warrant.
iv.
Example: After a traffic stop for swerving, a
breathalyzer test confirms a driver is over the legal alcohol limit.
d.
Reasonable suspicion allows police to detain
and question someone, while probable cause allows them to arrest or
search.
e.
“Articulable facts” are based on the
official’s training and experience. A civilian unfamiliar with criminal
activities from the perspective of a law enforcement official won’t necessarily
understand why they were detained, or why someone was arrested. The law
enforcement official has been trained to look for certain behaviors and characteristics
and has expanded their perceptions with experience from observing criminal
activity. An example is an immigration official watching people in downtown El
Paso, Texas. Two people of the same apparent ethnic background, dressed
identically, may exhibit different behavior while walking across a parking lot,
or in reaction to seeing a law enforcement official. They might display
different body language because of different cultural experiences. Immigration
officials with sufficient experience can use those characteristics to determine
who MIGHT be present in the U.S. illegally and develop RSIA to detain the
person for investigation. If the person is an “alien” (as defined in the INA),
they might be present legally, and subsequently released, or they could be a recently
naturalized citizen, or there might be other circumstances leading to the
observations the official made.
f.
Immigration officials do NOT need Probable
Cause in order to conduct vehicle stops. They have to be able to articulate
Reasonable Suspicion of Illegal Activity in order to pull someone over.
Probable Cause is needed for the ARREST. If a Border Patrol Agent conducts a
vehicle stop, they are doing so in furtherance of an INVESTIGATION of possible
illegal activity. The driver and passengers ARE being detained. Simply being
detained doesn’t mean you’re under arrest. It is an Investigative Detention.
VI.
Investigative detention, also known as
a Terry
stop, is a brief, temporary seizure of a person by law
enforcement based on reasonable suspicion that criminal activity is
occurring. It falls between a consensual encounter and a full arrest,
allowing police to conduct preliminary questioning and potentially a limited
pat-down for weapons. The detention must be no longer than reasonably
necessary to confirm or dispel the suspicion.
a.
Reasonable suspicion: This is
the threshold required for a detention. It means the officer or agent has
to have specific Articulable Facts that lead them to believe that the occupants
of the vehicle are involved in an illegal activity of some sort.
b.
Temporary seizure: During a
detention, a person is not free to leave. This occurs when a reasonable
person would not feel free to terminate the encounter.
c.
Limited scope: Officers can ask
questions, check for warrants, and conduct a pat-down for weapons if they have
a reasonable belief the person is armed and dangerous. However, they
cannot conduct a full search unless probable cause for an arrest is established
or they are given permission to do so.
d.
Reasonable duration: An
investigatory detention must be temporary and last only as long as is necessary
to complete the investigation, which is often determined by the "totality
of the circumstances". A detention of 90 minutes or more may be
considered unreasonable.
e.
When it escalates: If probable
cause for an arrest develops during the detention, the individual can be
formally arrested and the procedures for a search incident to arrest can then
be followed.
VII.
Under the current administration,
immigration officials are engaged in Targeted Enforcement around the
country. The primary Areas of Operations (AORs) are large cities, almost all of
which consider themselves to be so-called “sanctuary cities”. Targeted enforcement is a strategy that
focuses law enforcement resources on specific violations or individuals to
maximize efficiency and impact.
a.
Focusing on individuals with criminal
records, such as those convicted of violent felonies or sex offenses.
b.
These operations are not “kidnapping people
off the street” and they are NOT random. Critics of ICE and Border Patrol don’t
see the investigations that go on ahead of the arrests. Everyone involved in
the arrest is working exceptionally hard to minimize risk to the public and
themselves.
c.
The intent is to isolate the criminal
violators in ways that reduce the risk of them getting away. These people are sex offenders, murderers,
violent gang members, they all have criminal records that make them high
priorities for arrest. If they get away, they are very likely to hurt other
people in the future. There is also a significant risk of violent criminals
using violence to avoid arrest. This puts the public at risk.
d.
Immigration enforcement agencies such as ICE
and the Border Patrol are trying to apprehend specific criminals in ways that
minimize risk to EVERYONE involved, even indirectly. That means conducting the
arrest hard and fast, with overwhelming displays of force to show the offender
that resisting will not do them any good. Wearing helmets, body armor, and
shoving a rifle in someone’s face is not “unreasonable”. It IS deliberate
intimidation in an attempt to prevent the situation from escalating to an
ACTUAL use of force. Think of it as a behavioral demonstration of “We know that
you have a history of criminal violence, and we are prepared to reciprocate
that level of violence if you don’t cooperate. What happens next is up to you.”
i.
Every time a demonstrator, guided by toxic
levels of what they think is “compassion” or “empathy”, gets in the way of
these enforcement operations, they’re putting themselves at significant risk of
being hurt by criminals attempting to resist arrest, or by immigration
officials trying to subdue the violent criminal when the protestor gets in the
way.
ii.
Protestors are also potentially allowing
rapists, child molesters, murderers, and violent gang members to escape back
into society. Is that REALLY in the best
interests of ANYONE? Even non-violent illegal aliens are put at risk by the
people being arrested.
VIII.
The Militarization of Law Enforcement
Modern Law Enforcement personnel have a lot of protective
equipment at their disposal. Much of that equipment is exactly the same as what
the military uses. There are some vocal
detractors who criticize what they perceive to be the “militarization of law
enforcement”.
Is it REALLY a “militarization” or is it simply a variation
of “convergent evolution”?
Criminals use any weapons they can get their hands on, and
they want the most effective weapons available. In order to protect themselves
from those weapons, law enforcement officials are looking for body armor that
will stop the widest variety of calibers possible without being excessively
encumbering. Since body armor fitting those needs has already been developed
for the miliary, why not just adopt the same thing? It does NOT make law
enforcement “miliary”, it makes them prudent. It gives them the same level of
protection. One stage comedian, who claims to be a military veteran, was
recorded as accusing ICE personnel of acting like they’re on a combat
deployment, and made a joke of comparing them to soldiers in combat. He
deliberately fails to look at the actual similarities in some operations. Do
specialty military units engage in operations to target High Value Targets
(HVTs) to detain them? Isn’t that what ICE is doing? Do both entities not face
being shot at, run over, blown up, assaulted? Yes, immigration enforcement can
resemble specific military operations. That’s not an attempt to feel like G.I.
Joe, it’s “convergent evolution”. Instead of some biological evolution tending
toward the crab form in certain environments, or efficient transportation
evolving into trains, targeted law enforcement operations and specialized
military operations with the intent of detaining HVTs have evolved along
similar lines, and now resemble each other in many ways.
Yes, that IS reasonable, if you look at what’s being done,
and why. Given some critical thinking and analysis, it is a logical conclusion
for these similar types of operations to require similar tactics and equipment.
The military uses what works best, or it fails. Very often
their equipment works for a LOT of different purposes and in different
environments. It is simply an overlap of applicability.
I’m making a light-hearted connection with this, but is it
bad for me to have a pickup truck because the military uses them? Yes, that’s a
silly example, but it really does scale up to body armor and weapons.
Arguments that law enforcement is being “militarized” don’t
hold water until AC-130 gunships are launching ordnance on neighborhoods in
Chicago, and LAPD is using 777 batteries to address convenience store
robberies.
Give it a break.
a.
Back to basic civics and how the United
States Government functions.
CBP,
ICE, FBI, IRS, CNN, BVD, GMC…all of the alphabet agencies are part of the
Executive Branch.
