‘Know your rights,’ but also ‘know your risks’: Experts weigh in on safety for ICE observers

The First Amendment right to observe and record law enforcement officers has proven instrumental in documenting violence by federal immigration enforcement and critical to a nationwide resistance movement.

“The right to record is fundamental to holding government accountable. People can’t protest or even evaluate what they can’t see,” said David Loy, legal director of the First Amendment Coalition based in Northern California.

Cell phone videos filmed by witnesses have provided critical details about what happened when federal agents shot and killed two U.S. citizens in Minneapolis and other uses of force against civilians.

But the fatal shootings of Renee Good and Alex Pretti have also stoked fear that people who record or otherwise monitor federal immigration operations risk arrest.

“We are in a moment that’s kind of unprecedented in terms of the use of force against people who are observing, bystanding, recording,” said Saira Hussain, an attorney at the Electronic Frontier Foundation, a nonprofit that advocates for digital privacy and free speech, during a town hall this month.

The San Diego Union-Tribune consulted local attorneys and guides published by civil liberties groups on how people seeking to document law enforcement can exercise their rights safely and lawfully.

Experts say people should know their rights but caution that exercising them can come with risks, and people need to balance First Amendment freedoms with their own safety.

“Absolutely know your rights — but we have to be clear that this is also a world where people have to know their risks, and that’s an individual determination that each person has to make,” said Frederick Carroll, legal director of ACLU of San Diego and Imperial Counties. “People need to exercise good sense and discretion to not put themselves in harm’s way.”

What are my rights to protest and record law enforcement?

The First Amendment protects the right of anyone, regardless of immigration status, to protest or record federal, state and local law enforcement conducting activities in a public place. The Trump administration has, however, revoked visas and vetted visa applicants based on their speech activities.

You don’t need a permit to protest in public, such as along sidewalks, as long as you’re not blocking traffic or access to buildings, Carroll said.

The key thing to remember is that you are not allowed to obstruct or physically interfere with a law enforcement operation. You must keep a reasonably safe distance from law enforcement when protesting or recording, although courts have not set specific guidelines to determine exactly how far is reasonably safe, Loy said.

What should I do before going out to protest or record?

Have a plan, and tell a family member or a friend where you’ll be, Carroll said.

Privacy experts also recommend taking steps to help secure your phone before putting yourself in a situation where you may encounter law enforcement. Civil liberties groups suggest that you:

• Ensure your phone is encrypted by keeping it locked. Law enforcement requires a warrant to seize or search your device. If they ask you to delete content from your phone, you have the right to refuse.
• Do not use face or fingerprint unlocking for your phone. Instead, use a passcode. Courts have been clear that law enforcement cannot force you to give your passcode without a warrant.
• Record without unlocking your phone — instead, simply open your camera app from your locked phone screen.
• Keep your phone on airplane mode to reduce the number of signals your phone emits and limit tracking.

Civil liberties advocates also recommend being mindful when recording videos that show civilians’ faces. If recording somebody being detained, for example, tell them you are filming the incident, and stop filming if they ask you to. Advocates also recommend asking for their or their families’ consent to share the video.

What if I think my First Amendment rights were violated?

Write down everything you remember as quickly as possible, Carroll said. Get details such as the officer’s badge number, name and agency and the specific address or intersection where you believe the violation occurred. Get contact information for witnesses and photos of injuries.

You can file a written complaint with the agency’s internal affairs division or civilian complaint board, the ACLU says.

Should I carry my passport or immigration documents with me?

U.S. citizens are not required to carry proof of citizenship under federal law. Documentation requirements for non-citizens vary based on immigration status.

Carroll suggested that if you wish to keep proof of citizenship on you, you can keep your passport in a safe place and carry a photocopy. Carroll recommends telling a family member or close friend where they can find your passport so they can retrieve it in case you are detained.

What if I’m stopped by officers or arrested?

If you’re stopped by law enforcement, first ask if you’re free to go. If officers say yes, leave calmly, Carroll said.

If you are arrested, you have the right to ask why. You also have the right to remain silent and ask for a lawyer. “Don’t sign, say or agree to anything without a lawyer present,” Carroll said.

Stay calm, and never physically resist a law enforcement officer, the ACLU says.

Where can I get legal help if I am detained by immigration enforcement?

For U.S. citizens who are arrested for protesting or documenting federal law enforcement, Carroll recommends contacting Office of the Federal Public Defender or the Alameda, Contra Costa San Mateo or Santa Clara County public defender office.

Non-U.S. citizens who are detained by immigration enforcement can contact Immigration Institute of the Bay Area