Remember that it is always easier for people who are white and cis to exercise these rights. Thus, allies and members of the majority can and should use this privilege to stand up to law enforcement. To support both themselves and minority groups.
In a country with an abundance of accessible, clearly defined rights, it would be ill-advised not to familiarize oneself with the legal tools at one’s disposal, or take advantage of their power. Listed below are the various rights American citizens and undocumented immigrants have access to in different situations that they can use to stand up to law enforcement if they or someone else is in danger of being constitutionally violated.
Rights to use with the police:
During 2018, police killed 1,165 people, which is seven times greater than the amount of police who were killed in the line of duty. 28% of those killed who were unarmed were black, despite black people comprising only 12.6% of the entire U.S. population. Today many people, particularly minorities, live in fear of routine traffic stops and police encounters due to a sullied history of interactions that have led to brutality, mistreatment and death. In instances where tensions are high and the atmosphere is hostile, a person being aware of their fundamental rights can keep people out of prison and save lives.
Situation #1: You’re pulled over by the police.
First and foremost, remain calm. While it is your first amendment right to swear at the police without punishment, becoming defensive and announcing loudly that you know your rights will increase the situational likelihood of violence, malice and arrest.
By the law of the fourth amendment, you have the right to verbally refuse search requests of your person, vehicle and passengers. However, the police may order you to step out of the car so they can search you or the vehicle. In this case, you should obey (never physically resist an officer), while repeating out loud that you “do not consent to this search”. This way it is more likely that nothing they find can be used against you since it was an unlawful seizure. Remember that search request refusal is not an admission of guilt; it is your right.
After you receive a ticket, refuse a search, or an officer carries out a search, you are free to terminate the encounter. You can do this by asking, “Officer, am I free to go?” They may try to ask you more questions, but keep repeating this phrase until they give you an answer. Unless officers have probable cause or reasonable suspicion, they can’t legally arrest you.
If for some reason you’re arrested, make sure you understand your “Miranda Rights”, which allow you to remain silent and ask for a lawyer under the fifth amendment. If you aren’t read the Miranda warnings by a police officer, nothing you say can be used against you in court. Just know that there is some information you may have to disclose when arrested, such as your name, date of birth and address. Read up on the things police can say to trick and manipulate you into incriminating yourself and helping them get what they want.
Additionally, most states allow people to film on-duty police officers so long as the recording isn’t secretive and doesn’t interfere with police work. Be sure to maintain a non-threatening demeanour, and be aware that you may be unlawfully arrested or harassed by cops for what you are doing.
Situation #2: Police are at your door.
You are allowed to determine why the officer is there. By talking with them outside, through a screen, or behind a chain-locked door, find out whether they’re there about a noise complaint, or a missing child, or a runaway dog, or something else. You have the right not to let an officer inside your house without a proper warrant. In most cases, a warrant is needed to override a lack of consent, but there are some instances in which an officer can legally bypass this requirement.
If you live in an apartment, you must be present to assert your refusal to a search. Just one person is needed to overturn a search request for a residence. Otherwise, landlords, roommates, people with a key or with their name on the lease can let officers in. The good news is, your room, personal living space and belongings would be considered off-limits to officers by courts if you weren’t present to consent to a search.
Situation #3: You encounter law enforcement at a checkpoint.
For sobriety/DUI checkpoints, police officers can’t do anything more than peek inside your vehicle, check your license, and smell your breath. The rights that you have once you’re pulled over still apply here. If drug-sniffing dogs aren’t brought to the scene in the time your interaction takes, you don’t have to wait for them to get there. However, if you are arrested due to their findings, your legal recourse is limited.
According to a Supreme Court decision, random checkpoints made to find illegal drugs are unconstitutional. Yet this doesn’t stop police departments from tricking people into exposing themselves with fake signs that read “Drug Checkpoint Ahead”. If you see these signs, you can keep on driving, and shouldn’t pull into any nearby rest or gas stations where there might be drug-sniffing dogs. The point of these “checkpoints” is to scare drivers and catch them discarding illegal items in preparation for a search, speeding, or making illegal U-turns. You can’t be arrested for not stopping.
Note: Some of these same rights are applicable at schools (where students of color are more likely to be arrested) and in public spaces as well.
Rights to use with ICE:
Even though deportation rates haven’t surpassed those of the Obama era under Trump’s harsh rhetoric against undocumented immigrants and asylum seekers, there is still cause for fear. A growing xenophobic sentiment and ICE’s disregard for human decency means it is necessary for immigrants and allies to be able to defend against unwelcoming and antagonistic forces.
Situation #1: ICE comes to your place of residence.
You have the right to keep agents out of your house, without even opening the door, unless they have a warrant signed by a judge, with your correct name and address on it. Ask them to slide it under the door or put it against a window to verify its authenticity. For reference, this is what a judicial warrant looks like (don’t let anyone try to arrest you or come through your door without this). This is what an administrative warrant looks like (don’t be fooled, this holds no power over you).
You have the right to say you wish to remain silent and refuse to answer any questions. It isn’t within your rights to show any false documents or lie to officers, as this can be used as evidence against you. Be wary of ICE officers posing as police and pretending they are in the middle of an urgent criminal investigation in order to enter your home.
Note: In this situation, a Red Card is useful for people to be able to assert their rights without having to use English. You can simply slide the Red Card under the door for agents to read.
Situation #2: You’re confronted by ICE in public/ while in transit.
If you are asked for your immigration papers, you should hand them over. If you don’t have immigration papers, you have the right to remain silent.
You don’t have the right to flee, but passengers of the car may ask if they are free to leave.
At U.S. Border checkpoints, Customs and Border Protection agents are allowed to search your body and belongings without probable cause or a warrant. With reasonable suspicion, they can pretty much get away with any search. However, a prolonged stop or arrest do require a probable cause.
At checkpoints near the border (up to 100 miles inside U.S. territory), you are not required to answer any Department of Homeland Security questions or consent to any searches.
Situation #3: ICE or other law enforcement entities try to arrest you.
As always, you have the right to remain silent.
You can tell ICE officers if you have medical issues or if you need to arrange for childcare. You can always tell agents about children or vulnerable residents if they enter your home. You can say that you don’t consent to them being in your home or searching it. You have the right to due process. You have the right not to show them or tell them anything regarding your immigration status, no matter what it may be. You can refuse to speak or sign paperwork until you talk with a lawyer.
If you have a lawyer, you should carry a signed G-28 form to give notice of your legal representation. If you don’t have a lawyer, you can ask to speak to one anyways or ask for a list of pro bono lawyers.
Note: While undocumented immigrants don’t have access to all constitutional rights, there are some rights that they are able to take advantage of.
As for white allies, there are other ways to use your privilege to help people. Ultimately it is critical that everyone, despite their ethnicity or immigration status, is aware of their rights and how to best exercise them when a situation arises. They were put in place to protect civilians, and many go to waste in a nation where the rights of its First Amendment are unknown by a third of the population.
Disclaimer: Reading this article doesn’t take the place of legal advice that an attorney or a legal organization can provide, or learning all available rights. Visit the American Civil Liberties Union site for more information.
Photo credit: Randy Colas via Unsplash
