Episode 63: Why Knowing Your Rights Isn’t Enough
Episode 63
Host: Jill Mastroianni
Why Knowing Your Rights Isn’t Enough
Where you live can cost, or save, your estate hundreds of thousands of dollars. In this Tuesday Triage episode, Jill Mastroianni breaks down a listener question about estate taxes, domicile, and owning property in multiple states. Using a real-world scenario involving Washington, D.C., Maine, Georgia, and Kentucky, Jill explains how state estate and inheritance taxes actually work, why domicile is more than just a mailing address, and where people get tripped up when geography and estate planning collide. This episode helps separate fear from facts so you can make informed decisions about where, and how, you live.
Key Takeaways
Understanding ICE and local cooperation
Immigration and Customs Enforcement (ICE) is a federal agency within the Department of Homeland Security responsible for immigration enforcement.
State and local governments cannot be forced to enforce federal immigration law.
However, they can voluntarily cooperate through agreements under Section 287(g) of the Immigration and Nationality Act.
The Supreme Court’s decision in Printz v. United States confirms the federal government cannot commandeer state officials to enforce federal programs.
Sensitive locations and changing enforcement policy
For decades, federal guidance discouraged immigration enforcement in “sensitive locations,” including: schools, hospitals, places of worship, social-service locations, demonstrations and community gatherings
That guidance was revoked in January 2025.
Agency policies can change but constitutional protections remain constant.
The Fourth Amendment protects everyone, citizens and non-citizens, from unreasonable searches and seizures.
Key distinctions:
Public spaces: ICE generally may enter without a warrant.
Private spaces: ICE typically needs consent, or a judicial warrant signed by a judge.
Important differences:
Judicial warrant → issued by a judicial court; can authorize entry/search.
Administrative warrant → issued by DHS; does not authorize entry into private space.
Reasonable suspicion vs. probable cause
Reasonable suspicion allows officers to briefly stop and question someone.
Probable cause allows officers to arrest someone or obtain a warrant.
Warrantless arrests and the 2026 ICE memo
Federal law allows warrantless arrests if a person is believed to be undocumented and “likely to escape.”
A January 2026 ICE memorandum broadened the interpretation of “likely to escape.”
This change may lead to more frequent warrantless arrests.
The Fourth Amendment also regulates how arrests are carried out, including use of force.
Courts evaluate the severity of the suspected crime, the immediate threat to officers or others, and whether the person is resisting or fleeing.
Force is unconstitutional when it is objectively unreasonable under the circumstances.
This episode also explores:
The Second Amendment right to possess firearms
The Fifth Amendment guarantee of due process
The Sixth Amendment right to a jury trial and legal counsel
The role of grand juries and jury nullification
These protections apply broadly, including to undocumented immigrants, because the Constitution protects persons, not just citizens.
Constitutional safeguards shape what happens after legal encounters begin — but they do not eliminate risk. Preparation can reduce chaos in difficult situations.
Practical steps include organizing identification and legal documents, sharing document access with a trusted person, memorizing an attorney’s phone number, and creating a care plan for children if detention or deportation occurs.
Resources & Links
National Immigration Law Center: Judicial Warrants v. Immigration Warrants
Immigrant Safety Plan (Legal Counsel for Youth and Children):
https://lcycwa.org/isp
Connect with Jill:
Website: DeathReadiness.com
Email: jill@deathreadiness.com
Learn more about Jill’s solutions
Subscribe to the Death Readiness Dispatch!
Submit a question for Tuesday Triage
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After my daughter attended an ICE protest at her school, I found myself doing what I always do when things feel uncertain, going back to the law. Today, I walk through what immigration enforcement agents can legally do, how constitutional protections still apply, and how families and communities can prepare. Because knowing your rights is important, but sometimes it isn’t enough.
Welcome to the Death Readiness Podcast. This is not your dad’s estate planning podcast. I’m Jill Mastroianni, former estate attorney, current realist, and your guide to wills, trusts, probate and the conversations no one wants to have. If your Google search history includes, “Do I need a trust?” “What exactly is probate?” and “Am I supposed to do something with mom’s Will?” you’re in the right place.
After dinner last Friday night, my husband and I each received an automated call from our daughter’s school saying she had missed second period.
So I asked April which class she had second period. Then I asked if she had gone to class that day.
She hadn’t.
Instead, she told us she had attended an ICE protest organized by students at her school.
I asked what exactly she was protesting. She said she and the other students wanted to make sure the students in her school were protected from ICE.
Earlier that week, we had received an email from the superintendent explaining new district protocols for responding to federal immigration enforcement agents, including keeping agents outside school buildings while identification and purpose were verified and directing Immigration and Customs Enforcement, ICE, or Customs and Border Protection agents to the district’s central office to meet with legal counsel and local law enforcement. If federal agents do not comply with these steps, the school will go into lockdown mode as if an intruder were trying to enter the building.
My husband and I had been following the national conversation about immigration enforcement closely. But in that moment, I realized we hadn’t actually talked with April about it in a meaningful way.
So we sat down together as a family.
My husband explained that she had engaged in an act of civil disobedience — intentionally and nonviolently breaking a rule to protest something she believed was unjust and to call attention to the need for change.
The rule she broke was missing class.
The change she wanted was to keep ICE out of her school.
Later that night, we watched a zoom presentation from a local organization about how community members can respond to increased federal enforcement activity in our area.
I left that presentation realizing something about myself: when issues feel emotionally charged and uncertain, I need to slow things down and understand the legal framework underneath them.
Not because the moment isn’t urgent, but because informed action requires understanding.
That’s what today’s episode is about.
I want to walk through the law carefully and methodically so you can understand what rights, like the right to protest or protect community members, actually exist, where the uncertainty lies, and how to think about your own next steps based on your circumstances.
I encourage you to seek more information beyond this podcast. My hope is that this episode gives you a grounded place to begin.
I’m starting today’s episode with the concern that led to April’s act of civil disobedience. She wanted to keep ICE out of her school.
That brings us to a basic question that turns out isn’t so basic.
Who is ICE?
U.S. Immigration and Customs Enforcement — ICE — is a federal law enforcement agency within the Department of Homeland Security. It is responsible for enforcing federal laws related to immigration, customs, trade, and border security. ICE was created as part of the Homeland Security Act of 2002, in the aftermath of the September 11 attacks.
Customs and Border Protection existed in many forms throughout US history but was reorganized as part of the Department of Homeland Security after the September 11th attacks.
When I use the term ICE today, you can assume that that I’m referring to both ICE and Customs and Border Protection.
But here’s where things get confusing.
ICE enforcement actions are not always carried out by federal agents alone.
Which brings me to another question:
Can state and local governments be conscripted into service to enforce federal immigration law?
No. They cannot.
But they can choose to cooperate.
That cooperation happens through Section 287(g) of the Immigration and Nationality Act, which allows state and local law enforcement agencies to enter into agreements with ICE and perform certain immigration-enforcement functions under federal supervision.
The first 287(g) agreement was signed in 2002 with the Florida Department of Law Enforcement. The number of agreements grew during the Bush administration, continued during the Obama administration, expanded under the first Trump administration, and remained in place during the Biden administration, although no new agreements were created.
Then, on January 20, 2025, the first day of the second Trump administration, Trump signed an executive order that called for expanding 287(g) agreements nationwide.
Since then, the federal government has made participation easier — creating templates for agreements and a public map of participating jurisdictions. Federal funding is also expected to reimburse local agencies for costs associated with detaining undocumented individuals.
So while the federal government cannot force local officers to enforce immigration law, it can make cooperation easier and more attractive.
This idea — that the federal government cannot commandeer state officials — is rooted in constitutional federalism. In Printz v. United States, the Supreme Court held that the federal government cannot compel state officers to enforce federal law.
In Printz, law enforcement officers in Montana and Arizona filed actions challenging a provision of the Brady Handgun Violence Prevention Act that required the Attorney General to command law enforcement officers of each local jurisdiction to conduct background checks and perform related tasks on an interim basis until the national system became operative. The Court held that this interim provision requiring local law enforcement officers to conduct background checks was unconstitutional because it violated the principle of state sovereignty by compelling state officers to administer a federal regulatory program.
But what does that mean in practice?
It means that even if federal authorities want to carry out enforcement actions related to protests or immigration, they cannot require state or local officers to participate. This rule limits federal enforcement capacity and serves as one form of protection for protesters and communities.
Now that we understand who ICE is, and who might be acting on ICE’s behalf, let’s get back to April’s concern about ICE agents at her school.
To understand that concern, we need to rewind a bit.
For decades, the Department of Homeland Security maintained guidance instructing ICE to avoid conducting enforcement actions in certain places. These were often called quote “sensitive locations.”
In 2021, the Biden administration expanded that guidance. The list of sensitive locations included schools, hospitals, places of worship, playgrounds, social service organizations, disaster-response sites, funerals, weddings, and even demonstrations and rallies. The guidance also discouraged enforcement actions near those protected places like sidewalks, entrances, and parking lots. The policy was designed to prevent immigration enforcement from creating barriers to basic services and community participation.
In other words, there was a long-standing policy — not a law, but a policy — designed to keep immigration enforcement away from places where people gather for education, care, worship, and community life.
Then, on January 20, 2025, that policy changed.
On that day, the second Trump administration revoked what had become known as the “sensitive locations” guidance. That meant ICE was no longer restricted by internal policy from conducting immigration enforcement in places like schools.
The replacement directive was brief. It said officers should use quote “discretion” and quote “a healthy dose of common sense.”
Later that year, in a September 9, 2025 press release, the Department of Homeland Security said it was quote “setting the record straight,” stating that quote “ICE does not raid or target schools” while also emphasizing that the new directive allows officers to enter those spaces if necessary to do their jobs.
So where does that leave us?
If agency guidance can change from one administration to the next, what legal protections actually remain?
To answer that question, we have to go back much further than agency memos or presidential administrations. We have to go back to the Constitution, specifically, the Bill of Rights.
Today, we’re going to walk through several amendments: the Fourth Amendment, the Fifth Amendment, the Sixth Amendment, and the Second Amendment.
Normally, reading constitutional text aloud on a podcast would feel a bit too dense. But today, I want us to start from the same foundation.
So here’s the Fourth Amendment:
The Fourth Amendment is “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”
So how does the Fourth Amendment apply to schools?
The Fourth Amendment protects everyone from unreasonable searches and seizures. That protection doesn’t disappear just because immigration enforcement is involved.
ICE still needs legal authority to enter private spaces.
The Fourth Amendment protects areas where people have a quote “reasonable expectation of privacy.”
In a school setting, areas open to the public — like parking lots, front offices, or waiting areas — are generally considered public spaces. But classrooms, administrative offices, and areas marked “private” are different. Those are private spaces.
To enter a private space, ICE typically needs consent or a valid judicial warrant signed by a judge.
And that brings us to an important distinction.
There are two different kinds of warrants you may hear about: judicial warrants and administrative warrants.
A judicial warrant is issued by a judicial court and signed by a judge or magistrate judge. Courts that issue judicial warrants include both state and federal courts, such as a “Superior Court of California” or a “U.S. District Court.” It can authorize a search, a seizure, or an arrest.
An administrative warrant, by contrast, is issued by a federal agency, usually the Department of Homeland Security, and is signed by an immigration officer or immigration judge. Immigration judges are actually part of the executive branch, not the judicial branch.
And here’s the crucial difference:
An administrative warrant does not authorize a search or entry into private space.
Let me say that again because it matters.
An administrative warrant does not allow ICE to enter your home, a classroom, or any private area without consent.
It may allow an arrest in public but it does not allow entry into private space.
If you want to know how to tell the difference, I’ll link examples in the show notes from the National Immigration Law Center. But here are a few things to look for.
A judicial warrant:
Is issued by a judicial court
Is signed by a state or federal judge or a magistrate judge
Lists a specific address or location and
Includes a timeframe for execution
If any those elements are missing, or, if, for example, the address is incorrect or the timeframe for execution has passed, the warrant is likely not valid.
An administrative immigration warrant:
Is issued by DHS or another federal agency
Is signed by an immigration officer or immigration judge
References immigration law, such as the Immigration and Nationality Act, rather than a court order
If a document has those characteristics, it likely does not authorize entry into private space.
Without a valid judicial warrant, you may refuse consent and ask agents to leave.
So what does this mean in simple terms?
It means that ICE generally needs a judicial warrant or consent to enter your home or other private spaces.
And what are ICE’s powers?
ICE can enter public spaces, like school parking lots, without a warrant. But to enter private spaces, like classrooms or offices, they need consent or a judicial warrant.
So what can public schools do?
Honestly, schools can do exactly what April’s school is doing.
They can:
Understand the difference between public and private areas
Train staff on how to respond if ICE agents arrive
Designate one person, ideally legal counsel, to review any warrants
Those steps don’t prevent enforcement. But they ensure the school understands the law and responds appropriately.
Now let’s talk about something else that matters if ICE is present in a public space.
Can agents stop anyone they choose?
Not exactly.
ICE, like other law enforcement, must have reasonable suspicion to stop someone.
So what is reasonable suspicion?
The Fourth Amendment allows officers to briefly stop and question someone if they have specific, articulable facts suggesting the person is involved in illegal activity. It’s more than a hunch but less than probable cause.
For example, if someone is pacing outside a closed store late at night and repeatedly looking into the windows, an officer might reasonably suspect a planned break-in and stop the person to ask questions.
But reasonable suspicion alone does not allow a full search, unless there is a safety concern, like reasonable suspicion that the person is armed.
This principle comes from the Supreme Court’s 1968 decision in Terry v. Ohio, which allows a limited “stop and frisk” when an officer reasonably believes someone may be armed and dangerous.
But the meaning of “reasonable suspicion” is being actively debated right now.
A recent case involving the Department of Homeland Security, Noem v. Perdomo, illustrates that tension.
In July, a federal district court in California issued a temporary restraining order preventing federal officials from stopping people based on factors like apparent race or ethnicity, speaking Spanish or speaking English with an accent, being in certain locations, or working certain jobs.
The Justice Department appealed. The case reached the United States Supreme Court, which issued a stay, meaning the restrictions on the Justice Department are paused while the case moves forward in the Ninth Circuit.
That dispute raises a deeper constitutional question: what counts as “reasonable suspicion” in immigration enforcement?
Justice Kavanaugh’s concurrence in this case referenced a 1975 decision allowing Border Patrol agents near the southwest border to consider quote “Mexican appearance” as one factor among many when determining reasonable suspicion. He said that officers may consider things like location, type of work, language ability, and apparent ethnicity when evaluating immigration violations. Justice Kavanaugh’s concurrence did not explain how agents would assess language ability or determine ethnicity during an encounter.
Justice Sotomayor, joined by Justices Kagan and Jackson, strongly disagreed. Justice Sotomayor’s dissent warned that the Court’s order permits officials to target people who quote “look a certain way, speak a certain way, and appear to work a certain type of legitimate job that pays very little.”
That disagreement shows how complicated reasonable suspicion can be in practice. But stops are only part of the story. Arrests require something more: probable cause.
ICE may arrest someone with probable cause or with an administrative warrant.
So what is probable cause?
Probable cause exists when the facts and circumstances would lead a reasonable person to believe that unlawful activity has occurred, is occurring, or is about to occur.
It’s a higher standard than reasonable suspicion. Reasonable suspicion allows a stop. Probable cause allows an arrest, a warrant, or sometimes a search.
Here’s a simple example.
If an officer pulls someone over for running a red light and smells alcohol coming from the car and sees an open beer bottle in the passenger seat, that officer likely has probable cause to conduct sobriety testing and potentially make an arrest.
Probable cause requires evidence — observations, physical proof, or reliable information — not just suspicion.
And that raises an important question.
Why does it sometimes look like people are being arrested without warrants or probable cause?
On January 28, 2026, Todd Lyons, the acting director of ICE, issued a memorandum to ICE personnel addressing warrantless arrests under federal immigration law.
That law allows agents to make arrests without a warrant if they believe someone is undocumented and quote “likely to escape” before a warrant can be obtained.
Historically, ICE interpreted “likely to escape” to mean someone who might not appear for immigration proceedings, essentially, someone considered a flight risk, such as failing to appear for court hearings.
But that understanding has been under strain. In recent months, ICE has arrested individuals at or near their own immigration hearings — moments when they are, by definition, showing up to comply with the legal process.
The January 2026 memo significantly broadened the interpretation of “likely to escape.” Under the new guidance, a person may be considered “likely to escape” if an officer believes the person may not remain at the scene of the encounter long enough for an administrative warrant to be obtained.
But the Fourth Amendment doesn’t just regulate when someone can be arrested; it also regulates how arrests are carried out.
That includes the use of force.
The Fourth Amendment protects against unreasonable searches and seizures, and courts treat physical force during an arrest as a type of seizure.
So when does force become unreasonable or excessive?
Force is considered excessive when it is objectively unreasonable under the circumstances, judged from the perspective of a reasonable officer at the scene, not with hindsight.
Courts typically look at these three factors:
The severity of the suspected crime
Whether the person poses an immediate threat to officers or others and
Whether the person is resisting or attempting to flee
This analysis is objective. It focuses on what a reasonable officer would do in the same situation, not what a specific officer intended.
And this isn’t theoretical.
On January 7, 2026, Renée Good, age 37, was fatally shot in Minneapolis by an ICE agent.
An independent autopsy commissioned by her family found that she had been shot three times — in the head, the right side of her chest, and her forearm.
Just over two weeks later, on January 24, Alex Pretti, also age 37, was shot and killed in Minneapolis after federal agents fired ten times while he was on the ground and overpowered.
His death was ruled a homicide by the county medical examiner.
That’s two fatal encounters with federal agents in the same city, in the same month.
Is this new? The frequency and location is new, but not the actions.
A 1997 report from regional advisory committees to the U.S. Commission on Civil Rights documented a 1992 incident in Arizona in which a Border Patrol agent fired twelve shots at an unarmed man fleeing toward Mexico, striking him twice in the back. The man later died.
Last spring, the Inter-American Commission on Human Rights concluded that the 2010 death of Anastasio Hernandez Rojas, who was beaten, kicked, and repeatedly tased by Border Patrol agents, violated his human rights.
But years earlier, in a November 2015 press release, the Justice Department announced that federal prosecutors had determined there was insufficient evidence to bring criminal civil-rights charges.
So why did two fatal incidents happen so close together in Minneapolis?
Daniel Altman, who led investigations for Customs and Border Protection’s Office of Professional Responsibility between 2019 and 2025, has said that some of the most violent incidents occur when agents are placed in unfamiliar, chaotic situations.
As he put it, situations can quote “spin out of control and lead to bad outcomes.”
Concerns about accountability are not new either. A Government Accountability Office report from the early 1990s found that understaffing and management problems within the Immigration and Naturalization Service, which then included Border Patrol, made it difficult to investigate complaints against agents.
Those accountability questions become even more complicated when force escalates and constitutional rights intersect.
That brings me back to Alex Pretti, and to another constitutional issue: the Second Amendment
One of the more striking responses to Pretti’s killing was the suggestion that the shooting was justified, or at least understandable, because he had a firearm on his person.
But multiple analyses concluded that Pretti had been disarmed and never brandished the weapon or threatened officers with it.
Further, the Supreme Court has repeatedly recognized an individual’s right to possess firearms under the Second Amendment, subject to certain limits that are not at issue here. That right does not disappear simply because a person is present at a protest.
Mr. Pretti had a permit. He was lawfully carrying the firearm.
And if the Second Amendment protects the right to carry a firearm, the federal government cannot claim the power to use lethal force simply because someone has a firearm on their person.
The Fifth Amendment is also relevant here.
It provides that no person shall “be deprived of life, liberty, or property, without due process of law.”
That principle complements the Fourth Amendment. Together, they reflect a core constitutional principle: the government cannot take away someone’s life or liberty without lawful process.
If the government believes someone has committed a crime, the Constitution provides a path — investigation, arrest, charges, and trial.
I have seen efforts to justify Mr. Pretti’s killing based on an earlier encounter with ICE officers 11 days before his death. Both 11 days prior to Mr. Pretti’s death, and on the date of his death, the officers had the same legal tools available to them –arrest, charge and prosecute.
The Fifth Amendment exists precisely to prevent federal agents from acting as judge, jury, and executioner.
So what can you do?
Most of us think of the Fifth Amendment as the right to remain silent — the right not to incriminate ourselves.
But another part of the Fifth Amendment matters here too. It says no person can be held to answer for a serious federal crime unless a grand jury issues an indictment.
That safeguard still matters.
In one recent case, federal prosecutors tried three separate times to obtain an indictment against Sidney Lori Reid, a woman accused of assaulting an FBI agent during a protest against immigration officials in Washington, DC. Each time, the grand jury refused to indict her for felony assault on a law enforcement officer.
And you might remember Sean Dunn, the former Justice Department paralegal charged after throwing a wrapped Subway sandwich at a federal officer in Washington, D.C.
A federal grand jury rejected the felony assault on law enforcement charge, and when the case went to trial on a misdemeanor charge, the jury refused to convict.
In something called jury nullification, jurors decline to convict even if they believe a law may technically have been broken, often because they believe the prosecution itself is unjust or disproportionate.
And who serves on juries?
We do.
The Sixth Amendment guarantees the right to a public trial before an impartial jury, along with the right to legal counsel. If the federal government charges a protester with a crime, it must persuade a jury of ordinary citizens.
That’s another constitutional safeguard, one that places the community directly into the justice process.
But constitutional safeguards don’t eliminate risk. They shape what happens after an encounter with the legal system begins.
And those safeguards apply more broadly than many people realize. Constitutional protections like due process and equal protection apply to all persons, not just U.S. citizens. That includes both documented and undocumented immigrants.
If you are at risk of deportation, detention, or arrest, preparation matters.
I’m going to include a link in the show notes to an Immigrant Safety Plan created by Legal Counsel for Youth and Children [https://lcycwa.org/isp]. It’s a community resource designed to help parents plan for the care of their children if they are detained or deported.
Make sure your important documents are organized and accessible — IDs, passports, birth certificates, marriage documents, medical records, immigration documents, including your A-number (the letter A followed by 8 or 9 numbers), and powers of attorney.
Make sure a trusted person knows where these documents are and can access them if necessary.
Have a plan with that person in case of arrest, detention, or deportation. And if you have an attorney, memorize their phone number and make sure your trusted person has that contact information too.
Preparation doesn’t prevent difficult situations but it can reduce chaos when they happen.
And moments like this often force people to ask a deeper question about what finally pushes a community to act.
I want to circle back to Alex Pretti’s murder. Many of you might feel that Mr. Pretti’s killing was the last straw.
Kahlil Greene, known as the Gen Z Historian, wrote recently that there is no single “last straw.” He pointed to a long list of names — Rodney King, Amadou Diallo, Sean Bell, Oscar Grant, Trayvon Martin, Eric Garner, Michael Brown, Tamir Rice, Walter Scott, Freddie Gray, Philando Castile, Breonna Taylor, George Floyd, Tyre Nichols, Sonya Massey — moments that were each supposed to be turning points.
Greene writes, quote, that, “the fight for accountability, dignity, and the right to exist without fear of state violence is not a sprint. It’s a marathon that may never have a finish line.”
I’ve given you a lot of information today.
Being arrested or charged can carry enormous personal costs, even when the legal system ultimately clears someone’s name. And the harms that occur during confrontations with law enforcement can linger long after the headlines fade.
But the Constitution still places limits on government power.
And those limits are not enforced by courts alone — they are enforced by citizens, communities, and collective action.
The government may not always follow the law, but the law still gives people a way to push back.
Last Friday night, my daughter missed second period to protest something she believed was unjust. As her parent, I want her to be safe. As someone who believes in the Constitution, I also want her to understand it.
Because knowing your rights doesn’t eliminate risk.
But understanding them helps you decide how to act, and why.
And sometimes, that understanding is the difference between reacting in fear and acting with purpose.
This is Death Readiness, real, messy and yours to own. I’m Jill Mastroianni and I’m here to help you sort through it, especially when you don’t know where to start.
Hi, I'm April, Jill's daughter. Thanks for listening to The Death Readiness Podcast. While my mom is an attorney, she’s not your attorney. The Death Readiness Podcast is for educational and entertainment purposes only. It does not provide legal advice. For legal guidance tailored to your unique situation, consult with a licensed attorney in your state. To learn more about the services my mom offers, visit DeathReadiness.com.
