Oregon Federal Judge Says ICE’s Warrantless Arrests Are Illegal

ICE has been telling itself all it needs to do is write its own paperwork and it can do whatever it wants. Memos — passed around secretively and publicly acknowledged by no one but whistleblowers — told ICE agents they don’t need judicial warrants to arrest people or enter people’s homes.

All they need — according to acting director Todd Lyons, who issued the memos — is paperwork they could create and authorize without any need to seek the approval of anyone else. ICE calls them warrants but they’re just self-issued paperwork in which the officer says a person needs to be arrested and then signs it. That’s it. The review process begins and ends at the same desk. If the agent swears it to be true, he’s only swearing it to himself, which means every finger can be crossed and every “fact” can be fiction.

Courts aren’t having it. ICE’s internal memos may claim there’s no need for the Constitution to come between them and their mass deportation efforts, but that doesn’t mean the Constitution agrees to be sidelined. The courts are stepping in with increasing frequency to protect constitutional rights. A lot of activity in recent months has focused on the due process rights being denied to detainees.

More recent activity is focusing on the Fourth Amendment which, if violated, naturally lends itself to other rights violations. Via Kyle Cheney of Politico (who has been tracking these cases since Trump’s most recent election) comes another case where a federal judge refuses to play along with ICE’s unconstitutional game of charades.

The opening paragraph of this opinion [PDF] lays out the facts. And they are ugly.

ICE officers are casting dragnets over Oregon towns they believe to be home to agricultural workers, calling them “target rich.” Landing in those communities, officers surveil apartment complexes in the early morning hours, scan license plates for details about the vehicles’ owners, and wait for them to get into their vehicles. Officers then stop, arrest, detain and transport people out of the District of Oregon to the Northwest ICE Processing Center (“NWIPC”), 144 miles away in Tacoma, Washington, before ultimately deporting them. Sworn testimony and substantial evidence before this Court show that ICE officers ask few questions and allow little time before shattering windows, handcuffing people, and detaining them at an ICE facility in another state.

There’s no “worst of the worst” going on here. These are the actions of masked opportunists who know the only way to make the boss happy is to value quantity over quality. Untargeted dragnets cannot possibly rely on probable cause, even considering Justice Kavanaugh’s blessing of racial profiling. Given this — and the administration’s desire to see 3,000 arrests per day — immigration officers can’t even be bothered to issue administrative warrants, much less secure judicial warrants, before performing arrests.

The Oregon courts drives home the point in the next paragraph (emphasis in the original):

The law on this issue is clear and undisputed. An ICE officer may arrest someone if the officer obtains in advance a warrant for their arrest. If the officer does not have a warrant, they cannot arrest someone unless they have probable cause to believe that both (1) the individual is in the United States unlawfully and (2) they are “likely to escape before a warrant can be obtained.”

The government’s response to this could be generously called “implausible.” It’s more accurately “risible” and backed by absolutely nothing that can’t be immediately contradicted by literally everything everywhere, as the court points out.

Plaintiffs challenge ICE’s practice of abusing its arrest power by failing to meet those
criteria before arresting, detaining, and deporting people. Defendants do not—and could not— argue that this practice is lawful. Rather, they argue that there is no such practice, and that the
myriad cases presented to this Court are mere coincidence.

But there is “such practice.” It’s impossible to deny it, even though the government tried to. The court isn’t interested in the government’s deflections and straight-up lies. It’s here to compare the facts to the law. Here are the facts:

[T]he overwhelming evidence in this record confirms that ICE officers targeted Woodburn and other cities in Oregon because of the large number of agricultural workers living in those areas. Officer testimony regarding human smuggling serves only as an inappropriate pretextual reason for developing reasonable suspicion for a stop. That officer also testified that he believed the van was suspicious because it had tinted windows and did not have any commercial markings.

When asked what gave the officers “reasonable suspicion that there may have been a crime afoot or that the folks in the van may not have had legal status,” the officer noted that the registered owner of the van had an immigration history, and that “[p]eople are being — going into a van early in the morning.” The officers did not have the identities of anyone in the van and they were not pursuing any known targets.The officers did not have a warrant for M-J-M-A-’s arrest.

Here’s more:

The evidence also demonstrates ICE’s practice of fabricating warrants after arrests were made. Tr. 306 (if an officer “encountered a file that did not have a warrant for arrest, an I-200,” he would create one); Tr. 356 (officer affirming that “for any case” involving a warrantless arrest, he would “create a warrant for the arrest after” individuals were detained at ICE field offices). This practice of creating warrants after the fact is highly probative of ICE’s failure to make individualized determinations of one’s escape risk prior to arresting them. That is especially true where, as in M-J-M-A-’s case, the encounter narratives for arrestees were exactly “the same.” Tr. 401.

Heading towards the granting of requested restraining order, the court makes it explicitly clear that federal immigration officers are routinely violating constitutional rights:

The Court finds that ample evidence in this case demonstrates a high likelihood—if not a certainty—that Defendants are engaging in a pattern and practice of unlawful conduct in Oregon…

And if it’s unlawful in Oregon, it’s illegal everywhere in the United States. Nothing in this order relies on Oregon’s state Constitution. Everything here falls under the minimum standard set by the US Constitution and its amendments.

The order ends with a stark warning — one that makes it clear what’s happening now is not only extremely abnormal, but a threat to the Republic itself.

It is clear that there are countless more people who have been rounded up, and who either remain in detention or have “voluntarily” deported than those, like M-J-M-A-, who were fortunate enough to find counsel at the eleventh hour. Defendants benefit from this blitz approach to immigration enforcement that takes advantage of navigating outside of the boundaries of conducting lawful arrests. For the one detainee who has the audacity to challenge the legality of her detention and gains release, several more remain detained or succumb to the threat of lengthy detention, and then instead “voluntarily” deport. Defendants win the numbers game at the cost of debasing the rule of law.

Finally, this Court has previously described ICE officers’ field enforcement conduct as brutal and violent. The practices are intended to strike fear across large numbers of people throughout Oregon. The persistent intensity of regular ICE immigration enforcement operations may very well have the intended effect of normalizing this level of violence. If this normalization continues, then even greater harm will be inflicted.

This is all much larger than the individuals who have somehow managed to challenge this administration’s deportation activities. This is only where it begins. If the courts can’t get this shut down, this rot will be deliberately spread to cover anyone who isn’t sufficiently deferential to the authoritarians ensconced in the GOP.