Thanks to YouTube, there's one thing that both Tea Partiers and Latino civil rights advocates are getting behind.
In the endless repository that is this video hub, there are hundreds of clips, which together have garnered millions of views, of Americans of all ethnicities refusing to comply with inland immigration checks. These checks are conducted by border patrol agents, but it turns out plenty of people think the suspicionless stops are in violation of their constitutional rights.
Technically speaking, immigration checkpoints are allowed to exist up to 100 "air" miles from the border, based on a 1976 Supreme Court decision. However, drivers who are part of this YouTube movement say if they are not crossing a border, they should be able to freely travel within their own country without being questioned by federal agents. Still, others say the random stops encourage racial profiling and disproportionately target individuals who are Latino. Both the constitutional defenders and Latino activists hope that by posting videos to YouTube they will help raise awareness of the alleged injustice.
Much of their frustration also stems from the rapid growth of the U.S. Border Patrol and the proliferation of inland checkpoints. The agency has quintupled in size since the mid-80's, from 4,000 agents to 20,000 agents. Growing pains include a recent spike in corruption and abuse charges.
Each video pretty much goes like this: A car pulls up to an inland border checkpoint, then, a border patrol agent approaches the vehicle and asks whether the driver is an American citizen.
Then things really get heated, as both driver and agent descend into the type of intellectual arguments usually reserved for law school seminars. Drivers often begin by citing constitutional amendments which protect against compelled speech and against unreasonable search and seizure. In turn, agents often reiterate that the driver must state their citizenship at risk of being "taken into secondary" (which means they must pull their car into another parking station to be further questioned and/or detained.)
Drivers aren't compelled to answer the Border Patrol's line of questioning in these situations, according to the legal director of the San Diego ACLU, David Loy.
"Citizens and non-citizens have the right to remain silent. While the border patrol has a right to ask them, they don't have a right to compel them to answer. If they have a probable cause to justify an arrest, then they can make an arrest," Loy said. "But I'm not aware of any law that compels anyone to answer any questions at a border patrol checkpoint."
Immigration attorney Ben Winograd says there's a large "constitutional gray area" as to exactly how U.S. citizens can exercise their rights in these instances. He therefore urges citizens to refrain from challenging border patrol agents at checkpoints, and do so instead in the courtroom.
" It's wiser to assert your rights in an actual court than at a checkpoint. If you get into a fight with a border patrol agent, you're going to lose," Winograd said.
Well, not always. In some instances, after a few minutes of heated discussion, a senior agent simply waves the driver through, seemingly fed up with the lengthy constitutional debate. But in other YouTube videos, agents threaten to detain drivers based on probable cause -- and in some cases they actually do. A controversial pastor named Steven Anderson, says that he was brutalized and tased by border patrol agents after invoking his constitutional rights in 2009 and refusing to answer their questions regarding his citizenship. Anderson, who required 11 stitches after the incident, says that border patrol agents falsely claimed their dogs alerted them that the car was suspicious in order to find "probable cause." (Read more about his case here.)