When passengers stepped off a Delta flight from San Francisco to New York City on February 23, border patrol agents met them at the plane and asked them to show identification before they could leave.
When some of the passengers tweeted about what had happened, people asked the obvious question: Is something like this constitutional?
The short answer is yes–law enforcement can ask you to show ID when you’re getting off a domestic flight, or even when you’re walking down the street. But if they don’t have reasonable suspicion that you’ve broken the law, you’re not required to hand it over.
After the Delta flight incident, the U.S. Customs and Border Patrol said that they had been searching on behalf of Immigration and Customs Enforcement for someone who received a deportation order; when they stopped every passenger, they claimed that it was consensual and voluntary. Apparently, none of the passengers tested this by trying to refuse.
“Theoretically, you’re free to say no,” says Garrett Epps, who teaches constitutional law at the University of Baltimore and wrote an article in the Atlantic about the case. “They don’t have to tell you that you’re free to say no.” But, as Epps wrote in the Atlantic, according to Supreme Court case law, even if people respond to the request by handing over their papers, the fact that they do so without being told that they can say no doesn’t make it “consensual.”
While the experience may have been a first for many passengers, something similar happens more often than most people realize.
“I think that, on one level, the only thing that was surprising about that action was that it was happening at an airport to people who have enough money to ride an airplane, as opposed to happening in the south side of Los Angeles,” says Bill Stock, an immigration lawyer at Klasko Immigration Law Partners and president of the American Immigration Lawyers Association.
In the Southwest U.S., immigration checkpoints are common, often far from the actual border, stopping traffic as people try to go about their everyday lives.
Search YouTube for “how to get through an immigration checkpoint,” and you’ll see what happens when people try to assert their right to drive down the road (though note that some of these seem to be not just Americans interested in the Bill of Rights, but members of the sovereign citizen movement). Border patrol agents “routinely ignore or misunderstand the limits of their legal authority in the course of individual stops,” according to the ACLU.
As the new administration ramps up immigration enforcement, those stops are likely to become more common. “The administration’s stated law enforcement policy preferences are for as little restriction on law enforcement as possible, in the name of keeping us safe from ‘bad guys,'” says Stock.
Since 1953, the border patrol has asserted authority to operate checkpoints within 100 miles of the border, not just at the border itself.
Though courts have upheld the use of these interior checkpoints, the ACLU believes that “these checkpoints amount to dragnet, suspicionless stops that cannot be reconciled with Fourth Amendment protections.”
As the video above shows, some refuse to participate at immigration checkpoints. Epps says that he would do the same thing if he were asked to show identification when leaving a plane, though he insists he is not giving advice to anyone (and neither are we, just apprising you of your options).
“If I were in the circumstance of that flight, I would say to the officer, ‘Am I free to go? Are you telling me I can’t exit the plane without showing my ID?'” he says. “And if he says, ‘No, you can’t,’ I would tell him, ‘I would prefer not to show my documents. I don’t want to answer questions. If I’m free to go I’d like to go. If not, I’d like a lawyer.'”
Of course, there are some situations where showing ID is required. State laws require drivers to carry a license, and many states also have laws requiring you to show ID if an officer has reasonable suspicion that you’ve broken the law. In other situations, if you refuse to show an ID, “that obviously will make for a more uncomfortable interaction with that police officer than it otherwise might be,” says Stock. An officer or border agent might detain you. But some are willing to take the risk of being held, or even arrested, on principle.
As the Trump administration expands its plans to hire 10,000 more immigration agents and to continue a new regime of removal of law-abiding undocumented immigrants like a woman being treated for a brain tumor or a woman seeking protection from domestic abuse, one way of showing solidarity is to follow Epps’s lead and resist immigration officials. Obviously, you may have very valid reasons to not want to deal with the repercussions–from an annoying wait to potential detention. But if you have the wherewithal and the resources to do so, as Epps says, you’re under no obligation to help them with their dragnets.
“I’m saying this as someone who has a lot of social status–a born citizen,” says Epps. “I’m pretty sure [my lawyers] would eventually get me out. Not everybody has that option.”