Militias, Migrants, And The Law: Who's Breaking What?

Militia groups operating along the US-Mexico border have a history of detaining migrants, often in conjunction with US law enforcement. While militias are not illegal, their activities – including detaining migrants – often fall into a legal grey area.

The US Constitution affords the right to freely associate and bear arms, and belonging to a militia group is not against the law. However, when militias detain individuals at or near the border, their actions can be considered kidnapping under state and federal laws.

In recent years, there has been increased scrutiny and prosecution of militia groups for their criminal activities, with US federal authorities taking action against border vigilantes. Despite this, militia groups continue to operate and offer their services to support deportation plans and border control.

Vigilantes impersonating law enforcement

In recent years, there have been numerous reports of vigilantes detaining migrants, brandishing firearms, and even impersonating law enforcement officers. For example, members of the United Constitutional Patriots in New Mexico were filmed detaining migrant families and asylum seekers at gunpoint, with some members wearing police-style badges and yelling "Policia, alto!" ("Police, stop!" in Spanish). Similar incidents have been reported in Arizona and Texas, where armed groups have collaborated with and received support from local law enforcement agencies. This collaboration has led to concerns about the potential for violence and the selective enforcement of laws.

The legal status of these vigilante groups is murky, and they exist in a grey area of the law. While the US Constitution protects the right to bear arms and assemble peacefully, the actions of these groups may cross the line into kidnapping or impersonating law enforcement. Experts argue that the behaviour of these groups, such as wearing police-style badges and issuing commands, may constitute impersonating law enforcement officers, which is illegal.

The relationship between vigilantes and law enforcement is complex and varies depending on the location and specific groups involved. In some cases, local authorities have turned a blind eye to the activities of vigilante groups or even endorsed their presence. For example, Sheriff Mark Lamb of Pinal County, Arizona, has publicly supported the actions of vigilante groups and refused to condemn their activities. On the other hand, other law enforcement agencies, such as the Customs and Border Protection (CBP), have distanced themselves from these groups, stating that they "do not endorse or condone private groups or organizations taking enforcement matters into their own hands."

The issue of vigilantes impersonating law enforcement is a complex and controversial one, and it has sparked debates about the role of civilian groups in law enforcement, the boundaries of civilian authority, and the potential for abuse and violence. As the political rhetoric around immigration and border security intensifies, the activities of these vigilante groups are likely to remain a topic of concern and discussion.

Militia groups' authority

Militia groups are private organizations that include paramilitary elements. They are often referred to as militias, unorganized militias, or constitutional militias. These groups are illegal private paramilitary organizations that require official sanctioning by a state government to be constitutional. Despite this, most militia organizations view themselves as legally legitimate.

The American militia movement is closely associated with the American right-wing. The movement's ideology has led some adherents to commit criminal acts, including stockpiling illegal weapons and plotting to destroy buildings or assassinate public officials. Militia groups have a long history of supporting enforcement efforts and see themselves as acting in concert with military and federal agents. They have also been known to take migrants into custody and hand them over to federal authorities.

The line between civilian and official becomes blurred when militia groups position themselves as authorities and hunt down asylum seekers. They have also been known to take groups of migrants "into custody" and decide which migrants are "good" or "bad", turning over the latter to federal agents.

The Southern Poverty Law Center identified 334 militia groups at their peak in 2011, with the Oath Keepers and the 3 Percenters being the two largest militias. Militia groups are typically built around preparation for an existential violent threat, and members often view themselves as heroes protecting their families and communities.

The legality of citizen's arrest

The legality of citizens' arrests varies by jurisdiction. In some places, citizens' arrests are not explicitly provided for in law, but are permitted by long-standing common law. In other jurisdictions, citizens' arrests are provided for in law, but with certain restrictions.

In the United States, a private person may arrest another without a warrant for a crime occurring in their presence. However, the crimes for which this is permitted vary by state. Most states have codified the common law rule that a warrantless arrest may be made by a private person for a felony, misdemeanor, or "breach of peace". In Connecticut, for example, a statute requires that the person making the arrest reasonably believes that the subject has committed an offense and that the person being arrested has in fact committed the offense. In Georgia, citizens' arrests were repealed after the murder of Ahmaud Arbery by his neighbours, who thought he had committed a burglary.

In the United Kingdom, citizens' arrests are permitted by common law, which holds that anyone committing an offence can be arrested using minimum force if necessary, with consideration to what is reasonable in the relevant circumstances. The offence must be a serious one, and not merely a breach of the peace. The person exercising the power must have witnessed the offence occurring and cannot act upon information from another person.

In Australia, the power to arrest is granted by both federal and state legislation, but the exact power granted differs depending on the jurisdiction. In the state of New South Wales, for example, a person may, without a warrant, arrest another person if the person is in the act of committing an offence, has just committed any such offence, or has committed a serious indictable offence for which the person has not been tried.

In Brazil, a federal law allows any person to arrest a suspect criminal found in flagrante delicto or fleeing from the crime scene. The person must, at their own judgment, have the physical power to keep the suspect detained, and must verbally explain what they are doing to the arrestee and call the police.

In China, Article 82 of the Criminal Procedure Law empowers any citizen to make a citizen's arrest if:

• The person is committing a crime or is discovered immediately after committing a crime.
• The person is wanted.
• The person has escaped from incarceration.
• The person is being pursued for capture.

In some jurisdictions, citizens' arrests are not provided for in law. In Mexico, for example, Article 16 of the 1917 Constitution allows any person to arrest a criminal found in flagrante delicto. However, a non-police officer doing so must immediately bring them to the nearest civil authority. A person who fails to do so may be found guilty of illegal deprivation of liberty, a crime similar to kidnapping that can result in a prison sentence for the perpetrator.

Militias' role in deportation plans

Militias have long been inserting themselves into patrolling the US-Mexico border, and with Donald Trump's election win and his plans for mass deportations, they are preparing to assist with his immigration policies.

History of Militias on the US-Mexico Border

Militias operating along the US-Mexico border have a long history of supporting enforcement efforts, sometimes taking migrants into custody and handing them over to federal authorities. They have also been known to act with impunity, positioning themselves as authorities in borderlands in Arizona, New Mexico, and Texas, hunting down asylum seekers, and even taking groups of migrants "into custody". In 2019, the leader of the United Constitutional Patriots was arrested on gun charges after the group touted a video showing members of the group detaining 200 migrants at gunpoint on the border in New Mexico.

Plans to Assist with Deportation

Militias plan to continue their operations once Trump takes office, and some see themselves as acting in concert with military and federal agents to execute mass deportation plans. Tim Foley, head of Arizona Border Recon, a "civilian patrol group" based out of Altar Valley, has been in contact with the incoming Trump administration and expects to be a "valuable resource" to them. He says that his group has a "better lay of the land than the federal agents" and that they will be needed for "live, real-time intel".

Other paramilitary groups and civilians also hope to assist in the enforcement of Trump's hardline immigration policies. On social media, members of these groups have expressed their enthusiasm for Trump's plans and their desire to get involved.

Legal Concerns

There are concerns about the legal grey areas that allow these militias to operate. While it is legal to carry firearms openly in New Mexico, and there is no law banning the use of military-style uniforms, some behaviour could be considered impersonating a law enforcement officer, which is a crime. For example, wearing police-style badges may be considered impersonation. There are also concerns about the potential for violence, as militias have been known to use violence against politicians and other government representatives, including police.

Local Support

Some local police agencies, particularly sheriffs, have already been asking for civilian assistance in managing perceived problems with migrants and have hosted anti-immigration events with militias who patrol the border. There is also the possibility that local police may even deputize certain militias to help them deport immigrants.

The dangers of illegal border crossings

Illegal border crossings are extremely dangerous, and migrants are often placed in dangerous situations by Transnational Criminal Organizations (TCOs). TCOs have continuously demonstrated their callous nature, putting monetary gains above human life and safety.

Migrants crossing the border illegally are susceptible to a range of risks, including drowning, being locked in inhumane stash houses or refrigerated trailers, and being abandoned or lost in vast brushlands. In addition, they face the threat of robbery, assault, and sexual violence.

In the US fiscal year 2024, which ended in September, more than 1,000 Indian nationals were repatriated, marking a steady increase in deportations to India. The majority of these migrants were male, aged 18-34, and came from the states of Punjab, Haryana, and Gujarat.

The activities of these militias are not always condoned by official law enforcement agencies, and there are legal grey areas regarding the extent of their powers. However, they have been known to work alongside federal agents and have even been welcomed by local law enforcement in some cases.

The dangers posed by illegal border crossings are significant, and it is important for migrants to understand the risks they face when attempting to cross borders illegally.

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