Protesting U.S. Immigration and Customs Enforcement (ICE) is generally protected by the First Amendment, but that protection does not extend to every action taken during a protest. In Michigan, protesters can be arrested if police believe they have violated state law, entered restricted property, obstructed an officer, or committed another offense.
Your rights also include the ability to criticize government officials and, in many circumstances, record law enforcement officers performing their duties in public. However, protests near federal facilities may face additional restrictions, and an arrest by ICE agents may lead to federal criminal charges. Noncitizens may also face immigration consequences.
Understanding your rights before attending a protest can help you avoid unnecessary legal problems. If you have already been arrested, an experienced Detroit criminal defense attorney can review the circumstances and determine whether the charges are supported by the evidence.
What Rights Do You Have When Protesting ICE in Michigan?
The First Amendment protects freedom of speech and peaceful assembly. This generally means you can criticize ICE, immigration policies, and government officials and gather with others to express those views.
Public sidewalks, parks, and other traditional public forums generally provide strong First Amendment protections. However, the government can impose reasonable restrictions on when, where, and how demonstrations occur. For example, protesters may be required to follow traffic regulations or stay out of areas that have been lawfully closed to the public.
The location of a protest can therefore be important. A protest on a public sidewalk may be treated differently from a gathering that blocks an entrance to a federal facility or takes place on restricted property.
A protest does not become unlawful simply because police disagree with the message being expressed. At the same time, First Amendment protections do not give protesters the right to commit crimes while demonstrating.
Can You Record ICE Agents in Michigan?
Generally, yes. You have a First Amendment right to record law enforcement officers performing their duties in public, including ICE agents, as long as you are lawfully present and do not interfere with their work.
For example, you can generally use your phone to record an ICE arrest from a public sidewalk. You should maintain a reasonable distance and avoid physically interfering with officers or attempting to prevent them from making an arrest.
Additional restrictions may apply on federal property. Federal regulations can limit access to certain areas or prohibit conduct that interferes with government operations. Being allowed to record from a public area does not mean you can cross a security barrier or enter a restricted building.
If you are recording a protest or an arrest, preserve the original recording. Do not alter or delete footage that could be relevant to a later criminal case.
Can You Be Arrested for Protesting ICE?
Yes. The First Amendment protects peaceful protest, but police can arrest a protester when they have probable cause to believe that person committed a crime.
Some situations that could result in an arrest include:
- Blocking traffic or a building entrance
- Entering restricted or private property
- Refusing a lawful order to leave
- Resisting or obstructing an officer
- Assaulting an officer
- Damaging government property
Whether an arrest was justified depends on what actually happened. Video footage may show whether a protester blocked an entrance, whether officers issued a warning, or whether someone actually resisted an officer.
The circumstances surrounding a dispersal order can also matter. If police order a crowd to disperse, protesters should avoid physical resistance. If you believe the order was unlawful, that issue can be addressed through the legal process rather than through a physical confrontation with officers.
What Charges Can You Face for an ICE Protest in Michigan?
The charges resulting from a protest depend on the conduct police believe occurred. Some cases involve relatively minor misdemeanor allegations, while others can result in felony charges.
Disorderly Conduct
Michigan’s disorderly-person statute, MCL 750.167, covers several types of conduct, including unnecessary jostling or rough crowding in a public place. An ordinary disorderly conduct conviction can result in up to 90 days in jail, a fine of up to $500, or both.
A protester’s presence in a crowded demonstration does not automatically establish disorderly conduct. Evidence showing what the person actually did can be important, particularly when police reports and video footage tell different stories.
Unlawful Assembly
Michigan law also addresses conduct involving a riot or unlawful assembly. Under MCL 750.523, certain refusals to follow specified commands during a riot or unlawful assembly can result in criminal charges.
The exact circumstances and language of the charge matter. An attorney can review the police report and charging documents to determine what prosecutors are alleging and whether the evidence supports those allegations.
Trespassing
MCL 750.552 prohibits entering another person’s property without lawful authority after being forbidden from entering. It can also apply when someone refuses to leave the property after receiving proper notice.
A trespassing conviction can result in up to 30 days in jail, a fine of up to $250, or both.
Property boundaries can sometimes be unclear during a protest, particularly when a demonstration takes place near a government facility. Whether the area was open to the public and whether officers or property owners properly instructed someone to leave may become important issues in the case.
Resisting and Obstructing
Michigan’s resisting and obstructing statute, MCL 750.81d, makes it a crime to assault, resist, or obstruct certain officers while they are performing their duties. Obstruction can include knowingly disobeying a lawful command.
The basic offense is a felony punishable by up to two years in prison, a fine of up to $2,000, or both. More serious penalties can apply when the alleged conduct causes bodily injury, serious impairment, or death.
These cases can depend heavily on what happened during an interaction between a protester and an officer. Video footage, photographs, witness statements, and other evidence may help establish whether the person actually resisted or obstructed an officer.
Can an ICE Protest Lead to Federal Charges?
An ICE protest can potentially lead to federal criminal charges, particularly when the allegations involve federal officers or federal property. A protest need not take place inside a federal building for federal law to become an issue.
Assaulting or Impeding a Federal Officer
Under 18 U.S.C. § 111, certain forcible conduct against federal officers performing their official duties can result in federal charges. The potential penalties depend on the alleged conduct. Prosecutors may consider physical contact, threats, bodily injury, or other conduct when determining what charges to pursue.
If someone is accused of assaulting or impeding an ICE officer, evidence showing exactly what occurred can be critical. A video may provide a different account of an encounter than an officer’s report.
Destruction of Federal Property
Federal law also prohibits the willful destruction or attempted destruction of federal property under 18 U.S.C. § 1361. The potential penalties depend in part on the amount of damage involved. Damage exceeding $1,000 can result in substantially greater penalties than damage of $1,000 or less.
Evidence establishing the amount of damage, whether the property was federally owned, and who actually caused the damage can become important in a federal case.
Federal Facility Rules
Federal regulations establish additional rules concerning conduct and access at certain federal facilities. These rules can address restricted areas, obstruction, and compliance with lawful security directions.
If you receive a federal citation after an ICE protest, the specific regulation cited is important. Different federal rules can carry different requirements and penalties.
What Should You Do If You Are Arrested at an ICE Protest?
If you are arrested during an ICE protest, stay calm and avoid making statements about the incident until you have spoken with an attorney. What you say after an arrest can become evidence in your criminal case.
You should:
- Not physically resist. Even if you believe the arrest is unlawful, do not physically fight or pull away from officers.
- Ask for an attorney. Clearly state that you want to remain silent and speak with a lawyer.
- Not consent to a search. You can calmly tell officers that you do not consent to a search of your phone, bag, or other belongings. Do not physically interfere with a search.
- Not discuss your case with other detainees. Statements made in the presence of others may be reported to investigators.
- Preserve evidence. Keep original videos, photographs, messages, and other records related to the protest and your arrest.
- Not sign documents without understanding them. Ask to speak with an attorney before signing statements or other documents related to the case.
- Be careful about social media. Public posts, photographs, videos, and comments can potentially be reviewed by investigators.
If you are not a U.S. citizen, it is especially important to speak with an attorney before discussing your immigration status or accepting a plea agreement.
What Happens After an Arrest at an ICE Protest?
What happens after an arrest depends on the charges and whether the case is being handled in state or federal court.
Some protesters may receive a citation and be released with instructions to appear in court. Others may remain in custody until an arraignment or other court proceeding. Michigan misdemeanor cases generally begin in district court. State felony cases also have initial proceedings in district court and may later proceed to circuit court.
Federal criminal cases follow a different process. A person arrested on federal charges generally appears before a federal magistrate judge, who addresses the charges, the person’s right to counsel, and whether the person will be released or detained.
The charging document or citation should identify the court handling the case and provide information about the next court appearance.
What Are the Risks for Noncitizens Arrested at an ICE Protest?
Noncitizens can face additional consequences after a criminal arrest. ICE may issue an immigration detainer requesting notice of a person’s release and, in some circumstances, continued custody while immigration authorities take action.
A criminal conviction or guilty plea can also affect immigration status or eligibility for immigration benefits. These consequences are not always obvious from the criminal penalties associated with the charge.
For that reason, noncitizens should discuss their immigration status with their attorney before accepting a plea agreement. A criminal defense attorney and a qualified immigration attorney may need to evaluate the potential consequences together.
FAQs About ICE Protest Arrests in Michigan
Can ICE Arrest You at a Protest If You Are a U.S. Citizen?
ICE officers have federal arrest authority in certain circumstances, including when federal criminal or immigration laws provide that authority. Whether an arrest is lawful depends on the circumstances and the legal basis for the arrest.
Do You Have to Show ID to ICE at a Protest?
Simply attending a protest does not impose a blanket requirement on everyone to show identification to ICE. Different requirements can apply depending on the circumstances of the encounter. Noncitizens aged 18 and older are generally required to carry proof of registration under federal law.
Should You Post Your Account of the Arrest Online?
Think carefully before posting about an arrest or the events leading up to it. Investigators may review public social media posts, photographs, videos, and comments, and compare them with other evidence.
Preserve original recordings and other evidence, but consider speaking with an attorney before publicly discussing the details of your case.
What If I Cannot Afford a Lawyer for Federal Criminal Charges?
If you cannot afford an attorney in a federal criminal case, you may qualify for appointed counsel. The court reviews your financial circumstances to determine whether you qualify. Civil immigration proceedings are different. The government generally does not provide free legal representation in immigration proceedings.
Can I Request an Interpreter at My Federal Hearing?
Yes. If limited English proficiency or a hearing impairment affects your ability to understand the proceedings or communicate with your attorney, you can request an interpreter. Federal courts have procedures for providing interpreters to eligible individuals. Tell your attorney about your language needs as early as possible.
How Can My Family Find Me If ICE Takes Me Into Custody?
Family members can use ICE’s Online Detainee Locator System to search for someone in immigration custody. An A-number and country of birth can be used to search, or family members may be able to search using identifying information such as a name and date of birth. If someone does not appear in the system, family members may need to contact ICE directly for additional information.
What Should You Do If You Are Arrested While Protesting ICE?
A protest arrest does not automatically mean you committed a crime. Police and prosecutors still must establish the elements of the offense charged, and the circumstances surrounding the arrest can affect whether the evidence supports the charge.
If you have been arrested at an ICE protest in Michigan, Davis Law Group can review the police reports, recordings, witness statements, and other evidence related to your arrest. Contact Davis Law Group for a free consultation by calling (313) 818-3238 or using our contact form