Border Patrol agents have left Charlotte after a five-day immigration operation that resulted in more than 250 detentions and a swirl of legal questions over how agents conducted themselves.
In an interview with WFAE’s Nick de la Canal, Kristi Graunke, legal director of the ACLU of North Carolina, said Border Patrol agents appeared to have violated the state’s face mask ban, which prohibits people from concealing their identity with masks or hoods on public property.
The ACLU is also raising alarms about racial profiling, warrantless entries onto private property and potential violations of Miranda rights and access to counsel.
In an emailed statement, the Department of Homeland Security denied racially profiling anyone.
"Allegations that DHS law enforcement officers engage in 'racial profiling' are disgusting, reckless, and categorically FALSE. What makes someone a target for immigration enforcement is if they are illegally in the U.S.—NOT their skin color, race, or ethnicity," the unsigned statement said. The DHS statement did not address North Carolina's mask law, but said that law enforcement agents are wearing masks to protect themselves and their families against "thugs" who want to "reveal officers' identities."
The Border Patrol also has authority to "conduct searches and seizures without a warrant or probable cause in certain circumstances at the border or its functional equivalent," the DHS statement said.
Below is WFAE's full conversation with Graunke.
Nick de la Canal: OK, so there is a lot to get into, and I want to bring up a video taken by a Charlotte resident, Rheba Hamilton. She filmed agents approaching landscapers in her front yard on Saturday as they were hanging Christmas lights.
This seems to have raised two main concerns among people on my Instagram. One has to do with racial profiling. So let's address that first. Is it legal for Border Patrol agents to stop and question someone based solely on their appearance or their accent or the language they speak?
Kristi Graunke: No. Unfortunately, a recent Supreme Court decision — one of these brief orders — has cast some concern that the Supreme Court in the future may overrule precedent.
But what precedent says now is that you cannot stop people for immigration enforcement purposes and detain them solely based on the color of their skin or the language that they're speaking, (or) solely based on their racial or ethnic appearance.
So that is extremely concerning. We've been hearing reports of widespread racial profiling, and that certainly, under the current law, seems to me quite clearly illegal.
De la Canal: I think the other concern here involves private property. So in that video, agents walked onto a homeowner's yard. And then there was another case where agents entered the Myers Park Country Club without a warrant or permission and detained an employee who was later released because he had valid documents. What rights do agents have to access private property?
Graunke: Yeah, that's a great question. And something I want to emphasize is that for the purposes of your Fourth Amendment rights — not to have your property searched — your home is really accorded extreme protection under the law.
So, for officers to just be entering your property without your permission and, after being told to leave, remaining, that is a clear violation of the Fourth Amendment and in state trespassing laws. And unfortunately, we're just seeing incredibly lawless tactics here.
De la Canal: OK, let's talk about another case. On Saturday, agents were filmed breaking the car window of a Hispanic man, Willy Aceituno, after he said he did not consent to a search. This man (who is a U.S. citizen) was pulled out of his car, handcuffed, and detained before agents later released him with no charges. Just hearing these details, do you have concerns?
Graunke: I do, because under the Fourth Amendment, law enforcement are not supposed to arrest people without probable cause or a warrant. It is completely unclear to me why they could have thought that they had probable cause to arrest Mr. Aceituno. And certainly, not consenting to a search does not give them grounds to arrest him.
This is really an ongoing concern about the deployment of federal officers into situations where they perhaps have not been properly educated on the Fourth Amendment rights of people going about their business. And unfortunately, we're seeing the effects of that.
De la Canal: OK, well, let's talk about another case. This one involves a resident named Joshua Long. He was reportedly filming agents on Tuesday when they arrested him, saying he skimmed their car. Long says that agents didn't read him his rights, and his attorney says the FBI did not allow him to speak to his client while he was being questioned. Do you see some areas of concern here?
Graunke: Absolutely. First of all, if you're being arrested, you have the right under the Miranda precedent to be read your rights — your Miranda rights. They absolutely need to do that. They can't just arrest people and haul them off without advising them of their rights.
Also, access to counsel is a critical cornerstone of our legal system. And it is extremely disturbing to hear that lawyers are not being allowed to see their clients, that clients are not being able to access counsel. That is — especially when they're facing criminal charges or potential criminal charges — that is absolutely illegal.
De la Canal: OK, well, I have another question here that I think is even more fundamental. A lot of people have pointed out that Charlotte is nowhere near the border or even the coast. How is it that Border Patrol can conduct immigration enforcement this far from the border?
Graunke: Yeah, and there's a lot of confusion about this, and in particular this 100-mile rule ... about where a border patrol can operate and what they can do. I have very serious questions about whether Charlotte is within that 100-mile area where Border Patrol is allowed to engage in certain activities. But even if it were, it's incredibly important for people to know that 100-mile area or no, you still have rights.
You still have constitutional rights. The Constitution applies, the Fourth Amendment, the First Amendment, all the other rights that protect you. When you're having encounters with law enforcement or you're being potentially accused of a crime, or they're seeking to deport you.
De la Canal: OK, finally, North Carolina has this new law that bans face masks in public, and it says very clearly, no person shall wear a mask or hood on public property "so as to conceal the identity of the wearer." Now, I believe the thinking among lawmakers was that this would be applied toward protesters. But again, a lot of people on social media are asking why this law also isn't being applied to Border Patrol agents. Do you have a read on that?
Graunke: Yeah, well, my read of that law is that Border Patrol agents, law enforcement are not exempted from this law. I should mention that there is an exception — a safety and health exception — that people may wear surgical, medical-grade masks for the purposes of protecting themselves and others from the transmission of disease. So, it's not that it's a complete ban on mask wearing, but it does limit the kinds of masks that people can wear.
What we're seeing, however, is that these Border Patrol agents are masking to conceal their identity. They're not wearing surgical and medical-grade masks in the pictures that I've seen. And it really is about just concealing their identity, which gives rise not only to a violation of state law, but frankly, transparency and accountability concerns for everyone.
Unfortunately, I think this really shows that they know what they're doing is illegal. They know what they're doing is wrong, and they don't want to be held accountable for it. And that is absolutely antithetical to the way that law enforcement should work in a democracy.
The ACLU of NC is encouraging anyone who has seen or been the victim of a possible civil rights violation to get in touch by filing a complaint through their website.
