In a different America, with robust constitutional protections, a new report from ProPublica would have been front-page news for a week. The report documents “more than 170” cases of American citizens detained by immigration agents during immigration sweeps. But the implications of the report extend far beyond the accounts of the mistreatment of some dozens of Americans. They point to an agency that has slipped the leash of the Fourth Amendment and a government willing to tolerate, even defend, lawless force against its own people.
The report is a grim tour through ICE’s daily operations. It puts the lie to the administration’s oft-repeated line—most recently from the DHS spokesperson—that “we don’t arrest U.S. citizens for immigration enforcement.” The facts on the ground tell another story. Among the incidents ProPublica chronicles: masked agents pointing a gun at, pepper-spraying, and punching a young man whose only offense was filming them during a raid; a 79-year-old car wash owner, still recovering from heart surgery, tackled and pinned with knees to his neck until his ribs broke; and a woman grabbed on her way to work, held for more than two days without contact with the outside world.
The report shows that many citizens were detained for days without access to a lawyer. It documents cases of citizens who clearly asserted their status, including displaying official ID, yet were ignored by the agents. It also notes that the Administration doesn’t even track arrests of citizens in immigration enforcement actions, and it lacks both method and concern in straightening out its rogue forces.
Even people who instinctively think of immigrants as “other” can appreciate the nightmare of being detained by your own government for no reason at all. These are not edge cases. They reveal the modus operandi of an agency that has ceased to care about constitutional barriers governing stops, arrests, and the degree of force. And when members of Congress call for an investigation into the abusive treatment of citizens, the administration hasn’t even deigned to respond.
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. Moreover, 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, as in the case of the man who was pepper sprayed for the “crime” of videoing agents. There have been a series of reports of such arrests, basically to show rowdy protesters who’s boss. 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 non-citizens alleges exactly that. As an attorney for citizen plaintiffs put it, “Any one of us could be next.”
The report lends a poignant coda to the recent decision of the Supreme Court, which gave this same agency the benefit of the doubt. In a decision allowing ICE to stop people based on skin color, language, and type of work sought, Justice Brett Kavanaugh, presumably parroting the line supplied by the Administration, assured the country that the system is self-correcting: “If the officers learn that the individual they stopped is a U.S. citizen or otherwise lawfully in the United States, they promptly let the individual go.”
Except they don’t. In fact, the report strongly suggests that they typically don’t even try to find out before jumping in and treating innocent persons like dangerous criminals.
Every week brings new videos of federal agents ignoring, detaining, tackling, and pepper-spraying their prey—deploying force in situations where even local police, bound by stricter accountability, would hesitate. The pattern isn’t a string of mistakes; it’s a culture of impunity. Watching Gregory Bovino, ICE’s Chicago field chief, swagger into Judge Sara Ellis’s courtroom last week like Jack Nicholson in A Few Good Men only confirmed the point.
When agents encounter strangers, the Fourth Amendment imposes three core limitations:
- 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 Tom Homan and others in the administration say is all the agents are doing in nearly every case.
- 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. Many of the arrests in the ProPublica report were on charges of assault, though a large subset of those were later dropped.
- 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. ICE agents are methodically mowing down those guardrails.
The police-state stories above—and especially the 50-plus other arrests for supposed immigration violations—suggest multiple constitutional violations by ICE. Lacking particularized suspicion of an immigration offense, ICE agents were prohibited from even a brief detention. Their actions plainly constitute arrests without probable cause, and in many cases they proceeded to apply patently unreasonable force. We’ve seen similar arrests and unreasonable force wherever ICE has operated.
Once, ICE agents operated in a low-key manner, dressing in street clothes to make calm arrests of previously identified immigration violators. The Administration has now transformed that model into a police-state operation, complete with masked agents in military fatigues ransacking communities that want nothing to do with them and see them as an occupying force.
The abuses in the ProPublica report appear to be widespread and systematic. It’s been a core reason that a series of courts—from Chicago to Portland to Los Angeles—have come down hard on the agency. Judge Sara Ellis in Chicago found that ICE agents repeatedly violated reporters’ and activists’ Fourth Amendment rights. She refused the government’s request to limit relief to one immigration facility, concluding that the violations were widespread. “If I felt secure that this was only happening in Broadview,” Ellis said, “I’d be happy to limit it, but I don’t believe that is the case.”
Similar rulings have emerged from Portland and Los Angeles. But the Supreme Court’s indulgence has given ICE the moral cover to continue. And as often happens with bureaucratic impunity, violence has trickled down from the executive branch’s rhetoric.
What the ProPublica investigation reveals is not simply a rogue agency but a government willing to tolerate—and at times encourage—lawlessness in its name. In community after community, ICE has created zones of fear where both citizens and non-citizens tread carefully, knowing that a routine errand or encounter could end in detention.
The same authoritarian reflex that animates the president’s contempt for judges, journalists, and military personnel has now taken hold of street-level enforcement, where ordinary Americans are discovering that their citizenship is no shield against state violence.
The lesson of abusive, unconstitutional treatment of American citizens is thus not limited to immigration. It is a broader warning about the corrosion of constitutional culture. A government that flouts the Fourth Amendment and then lies about it to courts and the people has already crossed a moral and legal frontier. It likely falls, once again, to the American people to fight back before the distinction between lawful enforcement and lawless brute force is blurred beyond recognition.
Harry Litman is a former United States Attorney and the executive producer and host of the Talking Feds podcast. He has taught law at UCLA, Berkeley, and Georgetown and served as a deputy assistant attorney general in the Clinton Administration. Please consider subscribing to Talking Feds on Substack.
Reprinted with permission from Talking Feds.
