When we posted our latest know-your-rights guide, we noted that it describes the rights of U.S. citizens if you are stopped and/or asked to identify yourself or show ID documents in certain circumstances: as a pedestrian, as a passenger in a car (not the driver), at home, or at the airport for a domestic flight.

Why these exceptions and limitations? What about drivers of motor vehicles, passengers on international flights, and people who aren’t U.S. citizens? Don’t they have rights too?

Yes, everyone has rights. But we limited our guide to circumstances in which we think the law is clearly established. In other situations, U.S. courts have been less clear, and in some cases these issues are the subject of ongoing litigation.

Here are some notes on these exceptions and limitations:

• Non-U.S. citizens: All people have rights, regardless of their citizenship. The Bill of Rights refers to the rights of “persons”, not citizens. The U.S. is a party to international treaties, including the International Covenant on Civil and Political Rights (ICCPR), which according to the U.S. Constitution are the “supreme law of the land” just as much as the Constitution itself. Human rights, by definition, don’t depend on citizenship. But U.S. courts have often (wrongly, we think) interpreted some of the references to “persons” in the Bill of Rights and other U.S. laws as applying only to U.S. citizens and sometimes to permanent U.S. residents, not to all people. And U.S. courts have made it difficult or impossible to enforce rights recognized by the ICCPR, other international treaties, or customary international law through U.S. courts. In practice, non-U.S. citizens have fewer rights likely to be recognized by U.S. courts. U.S. law requires each non-U.S. citizen 18 or older in the U.S. for more than 30 days to register with the U.S. government and “at all times carry with him and have in his personal possession” their registration certificate. That law is of dubious validity, and hasn’t generally been enforced. It says non-U.S. citizens must “carry” their papers, but is silent on whether or when they are required to show those papers. Recent renewed enforcement of this law has prompted ongoing litigation in which these issues have been raised but not yet resolved. See  this know-your-rights brochure and these other resources from the American Immigration Lawyers Association for more on the rights of non-U.S. citizens.
• Drivers of motor vehicles: Unlike a mere passenger, the operator of a motor vehicle on a public road must have a license and must show their license to police if they are lawfully stopped. Case law on what constitutes a lawful traffic stop is complex and voluminous, with variations from state to state.  A key unresolved question is whether or in what circumstances ICE agents or other Federal law enforcement officers have the authority to make traffic stops or demand drivers licenses to investigate possible violations of state motor vehicle or traffic laws. In one recent ruling in an ongoing lawsuit in Minnesota, for example, the District Court Judge wrote that, “the Court declines to wade into whether federal immigration enforcement officers have any authority to enforce Minnesota’s traffic laws.”
• Passengers on international flights to and from the U.S.: Here again the case law is voluminous, complex, and silent on some key issues.  Federal agents have been allowed broad authority to stop and search anyone entering or leaving (or seeking to enter or leave) the U.S., whether at a land border or at an international airport or seaport.  Non-U.S. citizens can, in many cases, be denied entry to the U.S. if they decline to answer questions. But we can find no case law on the limits of the right of a U.S. citizen to remain silent in response to questions at the U.S. border or an international port of entry or exit, once they have declared their U.S. citizenship. (See more here about your rights at the airport for a domestic flight.)

We also noted in our guide that in some states, but not others, you might have to identify yourself verbally, if you have been legally stopped based on reasonable suspicion, but you don’t have to say anything else or show any papers. We think state “stop and ID” laws are unconstitutional. But whether “stop and ID” laws conflict with the 5th Amendment right to remain silent has not, so far as we can tell, been resolved by the courts.

Having the legal “right” to do something doesn’t mean that, in practice, you can do it without the police stopping you or retaliating against you for trying to exercise your rights. Retaliatory policing and retaliatory prosecutions are illegal but common.

Whether you are arrested, prosecuted, tortured, or shot by police, jailers, or prison guards may depend on the color of your skin,  your accent, what neighborhood you are in, whether you are wearing a hijab or other indicia of faith or ethnicity, or other aspects of your appearance and the situation, rather than on whether you are breaking the law.

Different people face different risks in trying to exercise their rights. Many of these risks are not ones individuals can choose whether to take. You are unavoidably “at risk”, to a greater or lesser degree, whether or not you chose to take additional risks. The law won’t always protect you. But neither will complying with the law always protect you.

One thing is certain: Your legal rights don’t matter if you never try to use them.