Shawn Vestal: Bus searches by Border Patrol an example of why we must insist on protecting our rights

Imagine: A comedian, the mayor of Spokane and a Border Patrol agent without a search warrant walk into a bus station.

How does this setup end? As an uplifting victory of constitutional rights over government overreach? Or a sobering lesson on the frailty of those rights – in this case, the Fourth Amendment prohibition against unreasonable search and seizure?

As with so much, it’s kind of both. Following years of controversy, Greyhound’s recent announcement that it would no longer allow random, warrantless Border Patrol searches on its buses is a good step. The searches are textbook racial profiling, and they flout the Fourth Amendment rights of every passenger.

But what a strange route it took to get here, a meandering journey during which it became clear this right is so weakly defended, so merely theoretical in the minds of many, that it would take years of protest and complaints, legal challenges from the state attorney general, an attempt by the City Council to challenge the searches and a highly publicized incident of apparent racial profiling of the aforementioned comedian to finally arrive at a resolution in tune with a fundamental principle of American freedom: The government needs a warrant or probable cause to detain or search us.

No matter what our skin color.

This is bedrock. Ground zero. The rights of individuals – and not just citizens – preserved against the authority of the state. If this right doesn’t exist, in full potency, then we are not the country we think we are. It is a standard by which you may judge a free society against an authoritarian state – a country where police are constrained from interfering with your liberty for no reason versus one in which police can interfere with your liberty for any reason, because they are the police. The kind of country where certain skin colors do not come with lesser rights versus one that treats certain skin colors as probable cause.

For too long, the story of immigration checks at the downtown Spokane bus station has stood on the wrong side of that line. As part of an aggressive Trump administration dragnet seeking undocumented immigrants by applying the legal framework of border crossings to the interior of the country, the Border Patrol has regularly and randomly boarded buses and questioned passengers about their immigration status.

The Spokane office was bolstered with additional officers last year, and has made more than 70 arrests at the station, according to reporting in the Intercept in December. None was for smuggling either people or drugs, the website reported.

Meanwhile, people of color have complained of harassment by border agents on buses not just in Spokane, but all around the country. A Gonzaga student whose family immigrated to the U.S. when she was 8 described being interrogated in a harassing, threatening manner while waiting for a bus home to Seattle, saying she was surrounded by agents and accused of faking her green card before being released.

The most prominent example of this kind of harassment came in the case of Mohanad Elshieky, the aforementioned comedian. Elshieky is a Libyan asylee; in January 2019, he was traveling by bus from a show in Pullman to his then-home of Portland. Elshieky said he was pulled from the bus and questioned for 20 minutes. The legitimacy of his documents was questioned by an officer who reportedly said, “Illegals fake these things all the time.”

Elshieky tweeted about his experience, and it attracted headlines around the country. He sued the Border Patrol earlier this month, claiming false arrest and imprisonment.

These “show-us-your-papers” dragnets clearly traduce the Fourth Amendment to catch undocumented immigrants. The City Council passed a law limiting the searches, since the station is on city property, but it was imperiously ignored by then-Mayor David Condon, who protested he had no authority to limit such searches on city property.

The Fourth Amendment protection against unreasonable search and seizure has always had a caveat at the border, where warrantless checks of immigration status have been permitted for understandable reasons.

The Border Patrol has pressed hard on the limits of what defines a border, claiming the authority to perform the searches in a border zone reaching 100 miles into the country’s interior. Spokane’s bus station is 3 miles inside this zone, and in many cases, the buses involved did not travel to or from a border.

The application of these expanded searches has been most pronounced on bus and train lines, and it has put the onus on the companies that own the lines to take a principled stand. Greyhound, the country’s biggest bus line, has been weirdly mealy-mouthed on the matter.

For a long time, Greyhound simply asserted it had no right to deny these bus searches, though it claimed it did not support nor agree with the practice.

But in January, an internal document from Border Patrol leaked, revealing that even inside the agency, there was agreement that the Fourth Amendment prevented agents from boarding a bus to perform random immigration checks, without a warrant or permission from Greyhound.

Greyhound promptly changed its tune. Now let’s see what happens at the bus station.

Plenty of people, and especially those in full immigrant panic, support these searches. They don’t view the rights in question as pertaining to them, somehow. But the rights under assault at the downtown bus station were everybody’s. They were not the rights of “illegals.” They were not the rights of some brown-skinned other, with no claim on the Fourth Amendment.

They’re your rights. My rights. The rights of all of us, even if we’ve never been detained or questioned for no reason on a bus in the middle of the night.

They only really exist when people – and companies – work to protect them.