An encounter with federal law enforcement like immigration officers or National Guard personnel can cause fear and confusion, especially for immigrants who may not know their rights or are not fluent in English.
Do you have to answer when an officer asks where you were born? Can you record an ICE operation? What happens if an officer asks to search your vehicle? And what can someone do if they do not understand the instructions they receive or questions they’re asked?
“Everyone in the United States has certain constitutional rights, regardless of immigration status,” Nichad Davis, an attorney with the law firm James Scott Farrin, told Enlace Latino NC.
Davis added that people have the same Fourth Amendment protections regardless of whether they are stopped by a federal law enforcement officer or a local law enforcement officer.
However, he cautioned that there are unique risks associated with interactions with federal law enforcement, particularly for immigrants, Black and Brown people, and unhoused communities. Negative interactions with federal law enforcement officers can result in federal charges and carry more severe penalties than encounters with state or local law enforcement.
For purposes of the information provided by Davis, the term federal law enforcement officer includes officers of federal agencies such as ICE as well as National Guard personnel.
The Right to Remain Silent: Questions You Don’t Have to Answer
During an encounter with police, immigration, or federal law enforcement officers, one of Davis’ first recommendations is to remain calm and not run, resist, or provide false information.
Generally, a person has the right to remain silent and can clearly state: “I am exercising my right to remain silent.”
If someone is stopped by a federal law enforcement officer, Davis said they do not have to answer questions or provide information about their immigration status.
There is, however, an important distinction: While there is no federal law requiring a person to identify themselves, some states require people to provide their name to law enforcement officers when stopped. If a local or state law enforcement officer is involved in the stop, state laws requiring identification may apply.
For that reason, the specific requirements can depend on where the encounter occurs and which law enforcement agency is involved.
Davis also cautioned that if a person chooses to speak with a federal law enforcement officer, it is very important not to provide false information, including a false name. Lying to a federal law enforcement officer can result in a separate criminal charge carrying harsh penalties.
A person can also ask whether they are free to leave. If the officer says yes, they can calmly walk away. If the answer is no, Davis recommends not resisting.
Contact Information
Law Offices of James Scott Farrin
Website: www.farrin.com
Phone: 800-222-7700
What to Do if You Are Arrested by Federal Law Enforcement
If a person is arrested by a federal law enforcement officer, they do not have to answer questions.
Davis recommends affirmatively and unambiguously stating that you wish to assert your right to remain silent and asking for a lawyer right away.
After doing so, he advises not answering additional questions.
If another officer attempts to speak with or question the person, they should repeat that they wish to remain silent and want to speak with a lawyer.
Again, if a person chooses to speak, Davis cautions against providing false information to a federal law enforcement officer.
Can You Refuse a Search?
Davis explained that a person can also refuse to consent to a search.
You can clearly say: “I do not consent to a search.”
That does not necessarily mean the officer will stop the search. Davis cautioned that, under some circumstances, an officer may still conduct one.
Clearly stating that you do not consent, however, can help preserve your rights.
If officers proceed with the search, the recommendation is not to physically interfere.
Do You Have to Open the Door for ICE?
The rules are also important when officers come to your home.
Davis explained that, generally, a person does not have to open the door unless officers present a valid judicial warrant signed by a judge.
An immigration warrant issued by ICE or another Department of Homeland Security official is not the same as a judicial warrant and, according to Davis, generally does not authorize officers to enter a private home without consent.
Automatically opening the door may be treated as permission to enter.
For that reason, Davis said a person can keep the door closed and ask officers to show the warrant or slide it under the door.
Is It Legal to Record Police or ICE?
Generally, yes.
“Yes, it is generally legal to record on-duty law enforcement officers. In fact, the First Amendment protects your right to do this,” Davis explained.
But that right has limits.
The attorney said courts have recognized certain situations in which recording law enforcement may be limited or prohibited. These include cases in which recording requires trespassing onto private property, violates reasonable public safety conditions set by law enforcement, violates certain privacy rights, incites criminal activity, or interferes with an officer’s official duties.
There are also cases in which courts have found that someone acted illegally when recording a law enforcement officer bordered on stalking or intimidation. Davis gave the example of regularly filming a police officer leaving home to go to work.
What should you do if an officer says you are interfering with law enforcement activities?
“If law enforcement says you are obstructing justice or interfering with its duties, you can step back, maintain a reasonable distance, and continue recording,” Davis said.
What to Do if Police Pull You Over and You Don’t Speak English Well
Language barriers can create even more uncertainty during a traffic stop.
If someone who does not speak English well is stopped by police, Davis recommends pulling over safely, remaining calm, keeping their hands visible, and avoiding sudden movements.
The driver should also provide the documents legally required during a traffic stop, typically a driver’s license, vehicle registration, and proof of insurance.
But according to Davis, the person does not have to answer unrelated questions about their birthplace, citizenship, or immigration status.
The person should clearly state: “I do not speak English well, and I need an interpreter.”
Davis explained that people may request language assistance, and police departments that receive federal funding generally must take reasonable steps to provide meaningful access to people with limited English proficiency.
That does not necessarily guarantee that a certified interpreter will immediately be available at the roadside.
The attorney recommends that drivers not pretend to understand an officer or guess at answers.
If asked to consent to a vehicle search, the driver can say they do not consent. If questioned about a suspected crime, the person may exercise the right to remain silent and ask for a lawyer.
Before signing a document, they should also request an explanation in a language they understand, while continuing to follow lawful instructions and never physically resisting.
Davis also suggested carrying a language-identification card stating the person’s preferred language. If the card is in a wallet or glove compartment, he recommends telling the officer before reaching for it.
Mistakes That Can Make the Situation Worse
Many mistakes during an encounter with police, ICE, or other federal law enforcement officers happen because people are frightened, confused, or trying to explain themselves.
One of the main mistakes, according to Davis, is running, resisting, or arguing with officers.
Even if someone believes a stop or arrest is unfair, physically resisting, threatening officers, or interfering can increase the danger and potentially lead to additional charges.
Another mistake is voluntarily providing information that did not need to be disclosed, such as where the person was born, their immigration status, or how they entered the country.
Lying or presenting false documents can also have serious consequences.
Davis specifically warned that providing false information or documents, or falsely claiming to be a U.S. citizen, can create serious criminal and immigration consequences.
Another common mistake is consenting to a search without understanding what the officer is asking. Some people may agree because they feel they have no choice.
Davis also recommends being especially careful before signing immigration documents.
“Immigration documents may waive the right to a hearing or other important protections,” Davis explained.
For that reason, he advises asking for an interpreter and speaking with a qualified attorney before signing something you do not understand.
What to Do if You Believe an Officer Violated Your Rights
If someone believes a police officer, immigration officer, or another law enforcement officer violated their rights, Davis recommends making safety the first priority.
He advises against arguing with or threatening the officer or physically resisting, even if the person believes the officer’s actions are unlawful.
If someone is injured, Davis recommends requesting medical attention and telling the medical provider exactly how the injury occurred.
Once it is safe to do so, documentation can be critical.
Davis advises writing down everything the person remembers: the date, time and location of the incident; the sequence of events; what each person said; whether any searches occurred; and whether force was used.
He also recommends identifying the officers and agencies involved whenever possible. This includes names, badge numbers, patrol-car numbers, vehicle descriptions, and the agencies represented.
If there were witnesses, the person should obtain their names and contact information and ask them to preserve any photographs or recordings.
Davis also recommends saving photographs, videos, text messages, citations, arrest documents, damaged clothing, and any other relevant items related to the incident.
“Keep the original files and make backup copies without editing them,” Davis advised.
If there were injuries or property damage, Davis recommends photographing them and keeping medical bills, treatment records, repair estimates, and receipts.
It may also be important to act quickly to preserve official evidence, such as body-camera recordings, dashboard-camera footage, dispatch audio, and surveillance video.
An attorney, Davis explained, can help send preservation notices and determine how to request those records.
Other Options for Reporting Potential Civil Rights Violations
In addition to evaluating a possible civil lawsuit, Davis identified other avenues for reporting alleged civil rights violations.
A person can file a complaint with the U.S. Department of Justice’s Civil Rights Division whether or not they decide to file a civil suit.
This type of DOJ investigation is primarily aimed at determining whether a law enforcement agency has a pattern or practice of constitutional violations. For that reason, an isolated incident generally is not enough on its own to establish such a pattern.
Davis also mentioned contacting a local chapter of the American Civil Liberties Union (ACLU) for information and to help assess whether an experience may be part of a broader pattern or practice.
Working with the ACLU can be beneficial in advocating for long term policy changes since they have no prior working relationship with police departments.
Avoid Immediately Posting About the Incident on Social Media
After a difficult encounter with law enforcement, there may be a temptation to immediately share what happened on Facebook, Instagram, or other platforms.
Davis recommends avoiding that.
If criminal or immigration issues are involved, he advises speaking with an attorney before giving a detailed statement or filing a complaint.
He also recommends promptly consulting a civil rights attorney because deadlines for civil rights claims, government notices, and administrative complaints vary.
Waiting too long, he cautioned, could affect a person’s legal options.
Prepare Before an Encounter With Law Enforcement
Davis’ main advice for Hispanic and Latino families is not about what to do when an officer appears, but rather what they can do before an encounter ever happens.
“My most important advice is to create and practice a family ‘know your rights’ plan before an encounter happens,” he said.
That plan should include whom to call in an emergency, where important documents are kept, and who will care for children if a parent is detained.
Davis also recommends making sure every family member knows how to calmly say: “I am exercising my right to remain silent, and I want to speak with a lawyer.”
Carrying a bilingual rights card and rehearsing these steps can help replace some of the fear and uncertainty with a clear plan.
“Preparation cannot prevent every difficult encounter, but it can help family members remain calm, protect their rights, and make informed decisions,” Davis concluded.
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