Working While Brown is the New Driving While Black

On Monday, in Noem v. Vasquez Perdomo, the Supreme Court stayed a district court injunction that had limited the ability of ICE to engage in racial profiling in Los Angeles. As has become increasingly common in SCOTUS emergency docket decisions granting stays of injunctions against the Trump administration, the brief per curiam order gave no reasons for the decision. However, Justice Kavanaugh wrote a concurrence explaining his reasons for voting for the stay. They are so bad that the majority would have been better off if its order had gone completely unexplained.

Justice Kavanaugh thought the plaintiffs were unlikely to be able to establish standing for an injunction. He also thought that they were unlikely to be establish a Fourth Amendment violation. And he thought that the balance of the harms and equities favored the government. I'll say a few words about each, concluding with some thoughts on Justice Kavanaugh's suggestion that victims of ICE abuse can pursue damages actions.

Standing

In Los Angeles v. Lyons, the Supreme Court denied standing to a plaintiff seeking an injunction against the use of chokeholds by the LAPD. Although Lyons would have had standing to pursue a damages action against officers who had previously choked him, the Court said that to have standing for injunctive relief, he needed to be able to establish a substantial probability that he would be subjected to a subsequent chokehold. The ruling was widely and fairly criticized.

To be sure, it makes sense that parties seeking to enjoin a policy should have to show that the policy is ongoing. That's why SCOTUS was right to deny standing for injunctive relief in Missouri v. Murthy. Even if the Biden administration's jawboning of social media companies had at some point amounted to coercion sufficient to render the companies' content moderation policies a species of state action, by the time of the underlying lawsuit, the policy had ceased. But in Lyons itself, the LAPD was continuing to use chokeholds. It was simply in the nature of policing that no individual could establish that he in particular would face a chokehold. The result in Lyons was that no one had standing to enjoin what pretty clearly was a policy of using excessive force in violation of the Fourth Amendment.

The Court--including its Democratic appointees--relied on Lyons in Missouri, and so one can't fault Justice Kavanaugh for relying on it in Vasquez Perdomo. However, one can and should fault him for how he relied on Lyons. As Justice Sotomayor (joined by Justices Kagan and Jackson) pointed out in dissent, unlike Lyons, whose future encounters with the police were unpredictable, the plaintiffs in Vasquez Perdomo had every reason to believe that they would encounter ICE agents repeatedly--given the ICE policy of targeting their workplaces for immigration enforcement raids.

Thus, Justice Kavanaugh's standing analysis was weak, even accepting the validity of the (awful) Lyons precedent.

Fourth Amendment Racial Profiling

In her dissent, Justice Sotomayor described the Fourth Amendment ruling of the district judge as follows:

Based on the evidence before it, the court held that the Government was stopping individuals based solely on four factors: (1) their apparent race or ethnicity; (2) whether they spoke Spanish or English with an accent; (3) the type of location at which they were found (such as a car wash or bus stop); and (4) the type of job they appeared to work. Concluding that stops based on these four factors alone, even when taken together, could not satisfy the Fourth Amendment’s requirement of reasonable suspicion, the District Court temporarily enjoined the Government from continuing its pattern of unlawful mass arrests while it considered whether longer-term relief was appropriate.

Justice Kavanaugh didn't disagree with that description. Acknowledging the holding of United States v. Brignoni Ponce, Justice Kavanaugh accepted that the first factor--apparent race or ethnicity--could not by itself be the lawful basis for an immigration enforcement stop, but he said that, in combination with other factors, it could be. He emphasized that the "reasonable suspicion" needed for an immigration stop was "considerably short" of the preponderance of the evidence standard. He thought that, given the large undocumented population in Los Angeles, some combination of the four factors could give rise to reasonable suspicion.

Justice Kavanaugh said that roughly ten percent of the population of the Los Angeles region are undocumented. Justice Sotomayor fairly criticized him for providing no citation for that figure, but I looked at various sources and confirmed that it's about right. Given that Justice Kavanaugh is probably right that undocumented immigrants are concentrated in certain fields of work, it is also probably fair to assume that somewhat more than 10 percent of the people seemingly looking for day-labor jobs at any given site in Los Angeles are undocumented. Somewhat more than 10 percent could qualify as reasonable suspicion in purely quantitative terms.

But there are two gigantic problems with that analysis, even accepting that race or ethnicity, in combination with other factors, can give rise to reasonable suspicion in some cases. Justice Sotomayor points to both of them.

One is that case law makes clear that reasonable suspicion must be based on individualized suspicion, not population-wide statistics. The other is that nearly half of the population of the targeted enforcement area are Latino, a great many of them U.S. citizens who speak Spanish and/or speak English with an accent. Absent something non-statistical, the necessary implication of Justice Kavanaugh's analysis is that U.S. citizens can be routinely stopped by ICE agents demanding proof of citizenship. 

Balance of the Harms and Equities

Justice Kavanaugh didn't deny that. In the portion of his concurrence devoted to showing why the balance of the harms and equities favors the government, he said that an immigration stop of a U.S. citizen or non-citizen who is lawfully in the country imposes little harm because "the questioning in those circumstances is typically brief, and those individuals may promptly go free after making clear to the immigration officers that they are U.S. citizens or otherwise legally in the United States."

What?! The record in the district court (and cited at length by Justice Sotomayor) shows that the ICE stops are frequently lengthy, often beginning with masked agents seizing suspects before asking any questions. Indeed, even if the ICE agents were conducting civilized stops, one wonders why Justice Kavanaugh thinks it would be easy for someone to establish their U.S. citizenship.

In principle, a U.S. citizen's California driver's license should establish legal status, because, although California issues so-called A60 licenses to undocumented immigrants, they appear different (containing the phrase "federal limits apply"). But ICE agents might not know or care about that--and have been detaining Latino U.S. citizens for extended periods on suspicion of being undocumented immigrants.

The fundamental problem here pre-dates Vasquez Perdomo. The allowance of stops based on reasonable suspicion--a lesser standard than probable cause--originated in Terry v. Ohio. There, the Court held that a stop-and-frisk (which involves both a seizure and a search of the person) was sufficiently less intrusive than other sorts of searches and seizures that it could be justified by a lower probability of detecting wrongdoing or danger. There have been numerous critiques of Terry, but the Court was right about the duration. Within seconds, police conducting a stop and frisk can determine whether a suspect is armed or carrying contraband.

Extending the reasonable suspicion standard to the immigration stop context was problematic because immigration status will frequently take time to determine. And that's especially true for citizens, unless they choose to carry their passports (which many people don't have) at all times. Thus, even without the violence and detention in substandard conditions, the Terry framework doesn't make sense for immigration stops--which are very often more like full seizures of the person.

I'll add one more point about Justice Kavanaugh's Fourth Amendment analysis. In addition to saying that people lawfully in the U.S. don't suffer much from an immigration stop because they can end it quickly by proving their status, Justice Kavanaugh included this whopper about stopped undocumented immigrants: "The interests of individuals who are illegally in the country in avoiding being stopped by law enforcement for questioning is ultimately an interest in evading the law. That is not an especially weighty legal interest."

Again, what?! Yes, it's certainly true that an undocumented immigrant has an interest in not being stopped by ICE because that could lead to deportation, but LIKE EVERYBODY TO WHOM THE FOURTH AMENDMENT APPLIES, SUCH PERSONS ALSO HAVE AN INTEREST IN BODILY SECURITY AND THUS NOT BEING SEIZED. That's even true of conventional criminals, as one can readily see by thinking about a search rather than a seizure.

Suppose that the police have a hunch (but not probable cause to believe) that Rosencrantz is running a meth lab out of his apartment. Rosencrantz is doing naked yoga in his living room when the police burst in without a warrant or probable cause. Oops! They were wrong. Rosencrantz is completely innocent of any wrongdoing. When the police entered, they violated the Fourth Amendment and sacrificed his interest in privacy.

Now suppose that the police have a hunch (but not probable cause to believe) that Guildenstern is running a meth lab out of his apartment. Guildenstern is naked cooking meth when the police burst in without a warrant or probable cause. When the police entered, they violated the Fourth Amendment and sacrificed Guildenstern's interest in privacy. It's true that they also frustrated Guildenstern's interest in evading the law, but that doesn't change the fact that they frustrated his privacy interest (in not being seen naked), the exact same privacy interest they frustrated when they violated the Fourth Amendment rights of Rosencrantz.

In characterizing the interests of undocumented immigrants as nothing other than in evading the law, Justice Kavanaugh fundamentally misunderstood how the Fourth Amendment works.

Civil Litigation

Reading the concurrence and then the dissent in Vasquez Perdomo is a bit like living in America more generally these days: they inhabit different realities. Thus, Justice Sotomayor pushed back on Justice Kavanaugh's characterization of the ICE conduct at issue. She wrote: "Immigration agents are not conducting 'brief stops for questioning,' as the concurrence would like to believe. They are seizing people using firearms, physical violence, and warehouse detentions."

In a brief nod to that different reality, Justice Kavanaugh said that this case is not about those facts. He wrote: "To the extent that excessive force has been used, the Fourth Amendment prohibits such action, and remedies should be available in federal court."

Should be, but almost certainly won't be. For one thing, any undocumented immigrant against whom ICE uses excessive force will be extremely reluctant to sue, even if they manage to avoid deportation. Doing so would risk further immigration enforcement by a vindictive administration.

But even citizens subject to excessive force will have a difficult time suing. SCOTUS is in the midst of a years-long process of drastically narrowing the circumstances in which plaintiffs can even bring a so-called Bivens action against federal officers. Moreover, even if there is a residual cause of action under Bivens, defendant officers will frequently have qualified immunity for their unlawful conduct.

Perhaps most challenging will be finding the officers to sue. Excessive force will most likely occur at the point of initial contact--perpetrated by masked officers who have no visible badge numbers. In theory, their identities could be determined through post-filing discovery. But then, in theory, the United States is still a constitutional democracy.

--Michael C. Dorf