A group of armed federal agents wearing face-covers and bullet-proof vests approaches you while you’re going about your business in L.A.
“Can I talk to you for a second?” one agent asks. “Where were you born?”
Stay calm. You might be the target of what’s called a “consensual encounter.”
That is what happened to customers at the Santa Fe Springs Swap Meet on June 14, when Immigration and Customs Enforcement (ICE) and Border Patrol reportedly arrested dozens during their shocking raid of the venue. It’s unclear how each arrest was carried out, but videos posted on social media indicate that agents had attempted to use consensual encounters to detain more people.
Essentially, a consensual encounter is a tactic in which law enforcement officers can approach you and begin asking questions, hoping you will engage them and provide information that gives them reason to detain you.
"...If they come up and talk to you, you are in control.”
“What does consent mean?” said Mohammad Tajsar, an attorney with the American Civil Liberties Union of Southern California. “It means you can consent to talk to anybody you want, or you can consent not to talk to anybody.”
Tajsar is one of the ACLU attorneys representing the plaintiffs who are suing the Department of Homeland Security DHS), which ICE and Border Patrol are a part of, over how agents are carrying out raids in the L.A. area.
L.A. TACO spoke to Tasjar and two other legal experts about how to recognize and react to consensual encounters. Understanding these situations is important because federal agents have relied heavily on them during their “roving patrols” in L.A., according to a recent Fox11 interview with David Kim, assistant chief of Border Patrol’s El Centro Sector.
Their operations took a major legal blow Friday, when the federal judge in the case against DHS ordered a halt to patrols that led to no-warrant, race-based immigration stops in the area. Technically, though, truly consensual encounters are still fair game for ICE and Border Patrol agents looking to make arrests in L.A.
“They don't have to suspect anything if they just want to come up to you and talk to you,” Tajsar said. “However, if they come up and talk to you, you are in control.”
How to Identify Consensual Encounters
Though Kim told Fox11 Border Patrol’s roving patrols consisted mostly of consensual encounters, Tajsar said that’s not exactly true. He said armed agents in L.A. have been physically stopping people and then asking questions.
In a truly consensual encounter, the person being approached by law enforcement has a choice, said César Cuauhtémoc García Hernández, a law professor at Ohio State University.
He added that agents often engage in “deceptive practices” during questioning meant to persuade someone to talk: “For example, ‘If you have nothing to hide, why don’t you tell me what happened?’”
“There has to be an opportunity for the person whom a law enforcement officer is approaching to decline the invitation to engage in the dialogue and to leave freely and of their own free will,” he said.
In theory, consensual encounters are the same in any law enforcement context, García Hernández added. But he noted there are obvious differences between standard consensual encounters and the way federal immigration agents have been carrying them out.
“Most of the time, local police are not walking around the streets of the community they're responsible for protecting with semi-automatic weapons,” he said. “On top of that, local police tend to identify themselves.”
How to React to Consensual Encounters
The added layer of intimidation makes staying calm in these situations easier said than done, said Christian Contreras, an L.A.-area civil rights attorney.
He added that agents often engage in “deceptive practices” during questioning meant to persuade someone to talk: “For example, ‘If you have nothing to hide, why don’t you tell me what happened?’”
“Don't volunteer information unless you have a lawyer present,” he said. “Don’t sign anything if you don’t understand the paperwork without first consulting a lawyer.”
“But if you’re asked, ‘Can I talk to you?’ and you start talking, then that is implied consent that you're voluntarily stopping there,” Contreras said.
All three experts who spoke to L.A. TACO agreed: Don’t answer officers’ or agents’ questions and ask them, ‘Whether you are free to go.’
“If they say you're free to go, simply say ‘thank you’ and walk away,” Contreras said. “If they say you're being detained, then you have to stay detained. If you run, they might try to say you're obstructing federal agents.”
Tajsar, the ACLU attorney, advised asking for a lawyer if you are detained and having the phone number of someone you would like to call.
“Don't volunteer information unless you have a lawyer present,” he said. “Don’t sign anything if you don’t understand the paperwork without first consulting a lawyer.”
Federal Judge Orders Halt to Race-Based Immigration Stops in L.A.
A coalition of organizations, including the ACLU, filed a lawsuit against DHS on July 2, accusing the federal agency of employing racist practices in its Southern California raids.
The accusations in what aims to become a class-action lawsuit seem to describe what countless L.A. residents have recorded on their cell phones and posted to social media in the past month.
“They're targeting places where there are lots of low-wage workers, who happened to be predominantly Latino men, and engaging in their roving patrols with a practice of actually just rounding people up,” Tajsar said. “That practice we have challenged as illegal and a violation of the U.S. Constitution.”
On Friday, Judge Maame Ewusi-Mensah Frimpong issued two temporary restraining orders against DHS activity in the Central District of California. One requires agents to allow detained people to speak with lawyers. The other bars agents from making detentions without reasonable suspicion that the person has violated U.S. immigration law.
That means they can’t rely solely on someone’s race, native language, or type of workplace to form a suspicion. The orders cover San Luis Obispo, Santa Barbara, Ventura, L.A., Orange, Riverside, and San Bernardino counties.
In a Friday statement to the media, DHS spokesperson Tricia McLaughlin accused Judge Frimpong of “undermining the will of the American people.”
But Tajsar said the orders don’t stop “traditional immigration enforcement.” Agents can still legally detain people they know have deportation orders, and they can still employ the use of truly consensual encounters.
“What we asked for is a ruling that says (to DHS), ‘You have to follow the law,” he said.
