In the wake of Renee Nicole Good’s death, Americans are asking, with heightened urgency, what authority ICE and CBP agents have when they engage with U.S. citizens. And as with many areas of the law, the answer is largely, “It depends.”
Can ICE use deadly force on U.S. citizens – or ever?
When it comes to the use of force, and specifically, the use of firearms, ICE has its own specific policy that was last updated in 2023. That policy was filed in the Chicago-area litigation over ICE and CBP’s treatment of protesters, clergy, and journalists. (Interestingly, on ICE’s website, that same policy is almost entirely redacted.) This policy does not vary depending on the subject’s immigration or citizenship status. Here’s what it says:
First, the policy authorizes the use of force “only when no reasonably effective, safe, and feasible alternative appears to exist and may use only the level of force that is objectively reasonable in light of the totality of facts and circumstances confronting the officer at the time force is applied.” But the policy is equally clear that an officer does not have to meet force with equal or lesser force, does not have to wait for an attack before using force, and does not have any duty to retreat to avoid the reasonable use of force.
Second, where feasible and without creating any greater threat to his own safety or that of others, an ICE officer must attempt to “de-escalate by the use of communication or other techniques during an encounter to stabilize, slow, or reduce the intensity of a potentially violent situation without using physical force, or with a reduction in force.”
Third, ICE policy is also clear that officers have a “duty to intervene to prevent or stop a perceived use of excessive force” so long as it is safe to do so. It further states that a failure to intervene and/or report such incidents is itself misconduct — and potential grounds for discipline.
What’s the guidance if U.S. citizens are given orders by ICE?
Short of using force or deadly force, however, can ICE give orders to U.S. citizens? For example, it appears that ICE agents directed Renee Nicole Good to get out of her car shortly before she was killed.
ICE can give orders to U.S. citizens, but again, only in limited circumstances that are directly tied to the ICE agent’s immigration-related authority. For example, ICE can give orders to U.S. citizens — or even detain them temporarily — if they are obstructing or interfering with immigration enforcement activity.
These situations are often very subjective. U.S. citizens do have significantly more freedom in their interactions with ICE than non-citizens. For example, according to guidance issued by the ACLU and the City of New York, among others, if ordered or detained by ICE, a U.S. citizen can ask, “Am I free to leave?” and they should then be allowed to leave on their own free will.
Can ICE agents search a car without a warrant?
ICE agents also have the authority to search a car without a warrant in limited scenarios. The Fourth Amendment includes the automobile exception, which allows federal agents to search a vehicle without a warrant if there’s probable cause to believe there’s evidence to a crime or contraband. Because a car can be driven away quickly, it may not be practical to secure a warrant beforehand without jeopardizing the investigation. But federal agents must have specific probable cause to search a car without a warrant. A hunch or a feeling that the car conceals evidence of illegal activity is not enough for a federal agent to search a car without a warrant. ICE does have broader authority to search vehicles within 100 miles of the U.S. border, but even so, these searches typically require probable cause. Notably, ICE cannot search a car without a warrant simply because they suspect someone may be an undocumented immigrant. However, car searches are the only major exception. ICE officers require search warrants for all other searches. Without a warrant, both U.S. citizens and non-citizens can say, “I do not consent to a search,” according to guidance issued by immigration rights organizations. What’s the guidance on U.S. citizens recording or taking photos of ICE during enforcement activities? Civil liberties groups generally advise that under the First Amendment, U.S. citizens can record or take photos of ICE performing law enforcement activities in public places so long as the recording does not interfere with ICE activity, like an arrest. Bystanders are allowed by law to collect important information, including names and badge numbers of the ICE agent executing the immigration activity. Some states, including Florida, Tennessee, and Louisiana, have enacted their own laws requiring observers — or anyone else — to move back 25 feet or more from law enforcement or other first responders upon their request. While other, similar laws passed by Arizona and Indiana have been struck down, the constitutionality of these states’ laws has not been determined. Finally, citizens and non-citizens alike share one fundamental right when it comes to encounters with ICE, or any other law enforcement agency, for that matter: the right to remain silent.
Lisa Rubin is MS NOW's senior legal reporter and a former litigator.
Fallon Gallagher is a legal affairs reporter for MS NOW. Recommended
