I am making this post with my students in mind — especially those who are moving to Washington, DC, for the first time in the coming days or who are now returning to the city after a summer away and are wondering what to expect and how to contextualize the Trump Administration's moves against DC Home Rule, increased police presence, and the images of police activity they may be seeing. Below are links to some existing "know your rights" (KYR) materials I would recommend, followed by some thoughts and legal principles that I hope might be helpful.
First, there are excellent resources available that I will simply commend to you:
- iAmerica offers an array of Know Your Rights resources and the ability to translate them into many languages. Some resources are for undocumented people, along with others of value to citizens and authorized immigrants and visitors as well. You can even download an app or printable cards.
- The Center for Protest Law and Litigation offers another set or KYR materials, including DC-specific information and other resources directed at people seeking to assert their First Amendment rights.
- For any university student who wishes to use their voice on campus, there are resources from Amnesty International and the ACLU.
- For my GW students specifically, here is something from a recent University email:
- GW’s International Services Office provides immigration and safety information for the university’s international community. Tips include using caution and consulting with ISO prior to international travel; carrying proof of immigration registration at all times; learning about the government’s collection of digital information; reviewing guidance on your rights from the American Immigration Lawyers Association and ACLU; and consulting with qualified external immigration counsel on any legal questions or concerns. The university continues to provide guidance for GW staff in the event of an unannounced visit by immigration enforcement officials.
But I thought a post noting what I have been seeing around DC and some things I think students might want to keep in mind might be a helpful complement to the above resources.
Social media and journalists have reported arrests of individuals who apparently were perceived to be consuming alcohol or using drugs in public spaces (parks including small parks in traffic circles, as well as immediately outside private homes). It is not clear how many, if any, also had outstanding warrants or immigration status issues. But it seems to me (as a mere observer) that there has been more focus on food delivery drivers; there is a perception that many of them have uncertain immigration statuses. So for example, agents appear near where scooter drivers gather to await delivery orders, and sometimes make moves that create tense interactions and, possibly, a basis for search and arrest.
I have seen some but really very little of this personally, despite doing a lot of walking throughout NW DC. To me, the city still feels safe and beautiful, just as it did before Trump maligned my home. I mention this because both Administration propaganda and social media posts in opposition would give the impression that police activity is everywhere. It obviously is far more common —there are thousands of additional officers on the streets — but, for what it's worth and as a counterbalance to that impression, it's not something I personally have seen very often. But also, I say this as a US citizen who nevertheless has taken to carrying his passport card in his wallet despite appearing white and living in a higher income neighborhood.
So below are some legal concepts you may want to keep in mind should you see or be asked to interact with any of those shows of force. But first an important disclaimer: I am a lawyer but I am not your lawyer and nothing in this post is legal advice. If you are concerned about your legal rights or status, you should contact an attorney, perhaps through one of the organizations linked above or through your state bar association's referral service.
There was a lot of outrage over a certain official's statement that ICE does not need probable cause, and I have also seen a lot of social media comments asking if there was probable cause to begin an interaction. But only an "arrest" requires probable cause. Police may initiate a "mere encounter" essentially at whim. Without probable cause or even reasonable suspicion, they can ask questions. Critically, you are not legally obligated to answer questions under these circumstances. You can just go about your day.
More critically, your response to a mere encounter (or anything seen by police while in public) can create "reasonable suspicion," or add enough to tip the scales along with other things the police can point to as suspicious. The police could then hold you for an "investigatory stop" (or "Terry stop"), in which case you would not be free to go about your day while the police detain you in order to confirm or dispel their suspicions — even though you're still not under arrest, and even though they don't have "probable case." Exactly what sort of behaviors or statements can contribute to reasonable suspicion has to be assessed under the totality of the circumstances and it's folly to suggest hard-and-fast rules. Most defense advocates suggest saying as little as possible. Personally, I would not want to answer any questions because I don't like talking to people with guns, which is certainly an innocent reason. (And on a related note, is the same reason I would not consent to a search of my home; I don't allow guns in my home.)
"Probable cause" is the requirement for an arrest, and is more than suspicion. It is only at this point that you are entitled to a Miranda warning, but at no point (during an arrest, stop, or encounter) are you required to answer questions unless a judge orders you to. It is also notable that Miranda warnings are only required if the police want to use something you later say against you. The usual advice is to not say anything even during a stop unless you are very certain that an innocent explanation will end the interaction. Once arrested, there is virtually no chance that you can say anything that will change the officer's mind; they are trained not to make an arrest unless they are quite confident that you have committed a crime. Specifying that you want an attorney is more durable than stating only that you are invoking your right to remain silent. (In general: If you say only that you'll remain silent but then start speaking, the police can use those statements. But if you invoke your right to an attorney, nothing you say before you get that lawyer can be used against you.)
Awareness of your legal rights is especially critical for people who are or might be stereotyped as non-citizens, as well as friends and family members of such people and anyone exercising their First Amendment rights. Still, I want to emphasize that this is a wonderful city and I hope students will not be unduly reluctant to enjoy all it has to offer. If you would like to show solidarity with those who may feel more under siege, see the events and other resources from Free DC.