Federal Judge Says ICE’s ‘Knock And Talk’ Variant Violates The Constitution

ICE (Immigration and Customs Enforcement) tends to treat the Constitution as some ticky-tack policy its officers can safely ignore.

That’s not to say ICE believes the Constitution does not exist. It probably at least realizes it exists. After all, it’s a US federal agency. What it firmly believes is that the Constitution provides no protection for the people it targets. As far as it seems to be concerned, immigrants (undocumented or otherwise) aren’t beneficiaries of these enshrined rights.

That’s where it’s wrong. While the Constitution provides almost no protection to foreigners residing abroad, these rights are extended to foreigners residing in the United States, whether they’re doing it legally or not.

ICE believes otherwise, even though it’s wrong to do so. But it seems comfortable doing this — something that is likely the result of multiple presidents declaring some sort of “war” on illegal immigration, often as a force multiplier for the ongoing failures of the War on Terror and the War on Drugs.

Fortunately for people residing in the US (perhaps not legally) who aren’t causing any trouble otherwise (fact: immigrants commit far fewer crimes than natural-born US residents), our nation’s courts aren’t quite as convinced everyone ICE targets has no access to constitutional rights.

This ruling [PDF] — handed down by George W. Bush appointee Otis Wright II — affirms the rights of immigrants and firmly reminds ICE it must abide by the Constitution no matter who its purported targets are. (h/t Courthouse News)

This long-running class action lawsuit has already secured the plaintiffs a (partial) win against ICE. A settlement over “ruse” tactics deployed by ICE agents resulted in the agency agreeing to revamp this part of its enforcement efforts. The latest ruling knocks down ICE’s bizarre (and unconstitutional) interpretation of “knock and talk” efforts.

“Knock and talk” is a well-recognized tactic of law enforcement. It involves officers knocking on the doors of suspected criminals or witnesses of suspected crimes and attempting to engage citizens in voluntary conversations about this criminal activity.

But that’s not how ICE handles “knock and talk.” It feels this is just the foreplay it has to endure before sealing the deal.

From the decision:

While “knock and talks”—as defined by the United States Supreme Court—are considered constitutional, “knock and talks”—as defined and executed by U.S. Immigration and Customs Enforcement (“ICE”)—are not. Considering the policies and practices governing how ICE conducts its “knock and talks,” the more accurate title for certain law enforcement operations would be “knock and arrests.”

It appears we’re immediately back in “ruse” territory. ICE officers perform knock-and-talks for the sole purpose of arresting undocumented immigrants. While knock-and-talks may help law enforcement officers locate criminals, they cannot effect an arrest without witnessing criminal activity or being in possession of an arrest warrant.

ICE thinks these stipulations don’t apply to it. It approaches residences, trampling all over the curtilage, while armed with nothing more than “administrative warrants,” which are not nearly the same thing as criminal warrants.

That’s not how this works, says the court. ICE may feel it’s only screwing with non-Americans, but these people are still beneficiaries of constitutional rights, even if they might be a bit more limited. “Limited” does not mean “nonexistent.” Just ask any cop who’s been bench slapped by a court for assuming the same thing about US born minors attending public schools.

But this casual abuse of the Constitution has worked out well for ICE. According to data provided to the court, “knock and talk” tactics contributed to more than a quarter of ICE’s “residential” arrests. And while the rest of US law enforcement seems to comprehend the innate constitutional restraints on knock-and-talk interactions, ICE actually instructs agents to disregard these long-held restrictions.

The Handbook defines a “knock and talk” as the “[a]rrest [of] an individual by knocking on the door of the residence and either making an entry or calling the subject outside.”

Left unsaid in this training document is the fact that US law enforcement officers need a valid criminal arrest warrant to effect an arrest. It also appears to gloss over the fact that officers need either permission or exigent circumstances to enter a residence without a valid search warrant.

And even these ample permissions were expanded by ICE’s interlopers. The court details multiple incidents where officers entered backyards, let themselves into fenced yards, or otherwise treated wholly private areas as comparable to doors and areas accessible by other government employees (like post office workers). It also notes cases where people were immediately arrested for doing nothing more than agreeing to step out of their homes to answer a few questions from ICE agents.

As the court points out, these obvious violations of Fourth Amendment rights were “consistent with the training policies and procedures of ICE,” which means the agency was actively encouraging rights violations by its officers.

Judge Wright, however, isn’t willing to issue an injunction blocking ICE from engaging in these tactics in the future. Fortunately, his ruling doesn’t allow ICE to continue with “knock and talk” business as usual either.

[T]he Court deems it appropriate to vacate Defendants’ unlawful policies. Vacatur, as compared to an injunction, is a “less drastic remedy” that does not “compel[] nor restrain[] further agency decision-making.” Unlike an injunction, “a vacatur does not restrain the enjoined defendants from pursuing other courses of action to reach the same or a similar result as the vacated agency action.”

Here, either vacatur or an injunction would suffice to strike down ICE’s “knock and talk” policy, but only an injunction would restrain Defendants from, in the future, attempting to institute a modified or amended version of the “knock and talk” policy that complies with constitutional limitations […] and the Court finds the less drastic remedy of vacatur to be sufficient to redress the “Knock and Talk” Class’s injury. By opting for vacatur, Defendants have the opportunity to develop a policy and practice that reaches the same or similar result as the vacated agency action, but in a constitutional manner.

So, it’s a partial win. ICE can still use knock-and-talk tactics like any other US law enforcement agency. But now it will have to do it like everyone else does (or is supposed to do): by securing actual criminal arrest warrants before arresting people and respecting curtilage limitations set down in numerous court rulings. ICE can still try to dupe someone into stepping outside just so they can be arrested. But it will have to have the proper paperwork in hand and without cutting through people’s backyards to get to the door most likely to dump an immigrant in its lap.