Monday, February 27, 2017

"We are not a 'Show me your Papers' Society. . . "

Last Thursday, Customs and Border Patrol (CBP) agents asked passengers to show their identification while deplaning in New York from a flight originating in San Francisco. They were searching for a person who had been ordered deported.

It's another example of CBP overreach. Ten days ago I wrote about an incident where CBP asked a returning U.S. citizen to hand over his cell phone for inspection, and to provide his passcode, in Houston, Texas. I concluded that, despite appellate cases to the contrary, in light of U.S. v. Riley (2014) CBP does not have a right to snoop through your phone or computer at the border without probable cause and a search warrant; at least not if you are a citizen or permanent resident of the United States.

Today, Garrett Epps, a teacher of constitutional law at the University of Baltimore, reaches the same conclusion with respect to the right of CBP agents to check your driver's license as you deplane from a domestic flight. They don't have that right. An ID check is a "search" within the meaning of the 4th Amendment to the constitution, and police or CBP needs probable cause and a warrant (or your permission) to conduct such a search.

Don't give your permission.

Here's Epps in the The Atlantic:
An ID check is a “search” under the law. Passengers on the JFK flight were not “seeking admission (to the country)”—the flight originated in the U.S. CBP officials told the public after the fact that they were looking for a specific individual believed to be on board. A search for a specific individual cannot include every person on a plane, regardless of sex, race, and age. That is a general paper check of the kind familiar to anyone who has traveled in an authoritarian country. As Segura (a 4th Am expert) told me, “We do not live in a ‘show me your papers’ society.”
Every society gets the police we deserve, they say. Police have no business checking our identification while boarding or deplaning domestic flights. By analogy, the same would hold true for spot searches on a bus, train, or sidewalk.

Resistance starts with us. Epps has taken this to heart. He writes:
I am a white, English-speaking law professor, affluent, privileged, articulate, and a native-born citizen. Such hair as I have is white and I can hardly seem like a threat to anyone. I have researched the matter, and feel reasonably confident that an agent would have to let me pass if I refused the demand for my papers. If not, I can afford counsel and my family knows excellent lawyers to call.
I am vowing here and now not to show papers in this situation. I know that it will take gumption to follow through if the situation arises. What will be the reaction of ordinary travelers, some with outstanding warrants or other legal worries? Should we expect heroism of people who just want to get off an airplane?

Artifact from a "show me your papers!" society

Follow me on Twitter @RolandNikles

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