Harry Litman writes:

A recent report from ProPublica documents the detentions of some 170 American citizens by Immigration and Customs Enforcement during its anti-immigration operations. But the implications of the report go considerably further, suggesting an agency completely out of control and flouting the Fourth Amendment at every turn.

The report is a harrowing demonstration of ICE overreach. It puts the lie to the declaration of the Department of Homeland Security spokesperson that “we don’t arrest U.S. citizens for immigration enforcement.” The facts on the ground tell a very different tale.

ProPublica’s report chronicled a series of ICE arrests that would be hard to believe if they weren’t backed by official complaints and eyewitnesses. In one, masked agents pointed a gun at, pepper-sprayed, and punched a young man whose only offense was filming them as they searched for his relative. In another, they tackled a 79-year-old car-wash owner, pressing their knees into his neck and back. The man, who had just undergone heart surgery, was left with broken ribs and was denied medical attention for 12 hours. In a third case, agents handcuffed a woman on her way to work and held her for more than two days—without any contact with the outside world.

All Americans, even those for whom immigrants are instinctively “other,” should be disgusted by these abominations, which make clear that there is no foolproof protection for anyone, Americans included, from ICE’s rabid tactics.

The report documents two categories of concern. As ProPublica notes, about 130 of the total number were arrested for allegedly assaulting officers. Many of these allegedly were overblown: ProPublica notes that they produced a “handful” of guilty pleas to misdemeanors. At least 50 of those cases were tossed, or charges were never filed.

So they give rise to questions about whether ICE is abusing its power to arrest law-abiding protesters, like the man who was pepper-sprayed for the “crime” of videoing agents. Protesters can be raucous, but raucousness is not a crime.

It is the other category of detained Americans, at least 50, that presents a graver indictment of ICE. Consider that nothing sets apart these relatively few American victims of ICE from the tens of thousands of people the agents scrutinize. Nor do the agents know their nationality when they confront them. So what we’re seeing in the ProPublica report is very likely ICE’s general M.O. And a series of lawsuits on behalf of noncitizens alleges exactly that.

When agents encounter strangers, the Fourth Amendment imposes three core limitations:

1. If, and only if, agents have particularized suspicion that a person may be guilty of a crime, they can stop the person (make a “Terry stop”) and pose a brief series of questions to dispel or confirm their suspicions. This is the basic dividing line that border czar Tom Homan and others in the administration say the agents are following in nearly every case.

2. If, and only if, agents have developed probable cause that a person is guilty of a crime, they can arrest them—restrain their physical movements. That includes, of course, Americans or anyone else who assaults law enforcement.

3. At all times, including during arrests, agents may not employ force that is unreasonable under the circumstances.

These three guideposts mark the difference between a democracy and a police state. And yet, in case after case, ICE agents are blowing through those guardrails. [Continue reading…]