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 4^th 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 4^th 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.