On September 8, the Supreme Court issued a disturbing shadow docket order in Noem v. Vasquez Perdomo, a case dealing with ICE stops in Los Angeles County. The question at issue is whether a federal agent may rely in part on a person’s race or ethnicity as part of a Fourth Amendment analysis of when they have “reasonable suspicion” to make a stop – in the case of ICE, a stop intended to identify whether someone is deportable.
Procedurally, the order overturned an appellate ruling that had denied the government a stay of a Los Angeles-area district court injunction, that had prohibited ICE from taking into account the race or ethnicity of people as a factor creating reasonable suspicion for detaining them for deportation. The six most conservative Justices favored a stay; the three most liberal Justices filed a dissent. Justice Kavanaugh filed a concurrence to explain his reasoning, which was not joined by any other Justice. Concurrences on the shadow docket are at most advisory on lower courts, but the Kavanaugh concurrence explicitly gives the green light to ICE to take race or ethnicity into account pending a Supreme Court opinion on the merits of the case. If Justice Kavanaugh’s reasoning makes it into an actual, binding Supreme Court opinion, it will cause significant further damage to the Fourth Amendment.
On a high level, the Bill of Rights generally protects individuals, not groups. Those rights constrain the ability of the government in what actions it may take relating to individual human persons, rather than assigning rights to any particularly described collectives of people. This feature has been much criticized by those interested in advancing privacy rights, because it has made it more difficult for groups of people with discrete sets of interests to challenge government surveillance as a collective. For example, plaintiffs are often unable to bring class action challenges to statutes authorizing surveillance, because the reasonableness of a search depends on a fact-dependent analysis that precludes class certification.
With respect to the Fourth Amendment, therefore, the right “of the people” to be free from unreasonable searches and seizures is addressed in cases brought by individuals, whose rights as individuals are violated. Damages in Fourth Amendment claims are meant to be available to individuals as a remedy for the violation of those rights. In that small and unexpected respect, the Kavanaugh concurrence is helpful. It argues that “To the extent that excessive force has been used, the Fourth Amendment prohibits such action, and remedies should be available in federal court.” This is an extremely surprising statement for Kavanaugh to make, because he has routinely joined opinions that deny and circumscribe the ability of individual defendants to pursue such remedies.
Some background may be helpful. In Bivens v. Six Unknown Named Agents (1971), an earlier generation of Supreme Court Justices held that a plaintiff may sue a federal official for violations of the plaintiff’s Fourth Amendment rights. More recently, the Court has issued a steady series of rulings limiting Bivens, including specifically in the border enforcement context. Justice Kavanaugh joined two such opinions: Hernandez v. Mesa (2020) and Egbert v. Boule (2022). These opinions barred pursuing damages against CBP agents, on the grounds that “regulating the conduct of agents at the border unquestionably has national security implications” and the “risk of undermining border security provides reason to hesitate before extending Bivens into this field.”
Returning to Noem v. Vasquez Perdomo, Los Angeles County counts as the “border” because all of it lies within 100 miles of the coast and an international airport. Perhaps Kavanaugh’s concurrence signals a new openness to people actually being able to vindicate their Fourth Amendment rights against immigration authorities. It would be hard for somebody arrested by ICE and speedily deported to vindicate such a right, but it would be possible in a few cases where deportation was slower. But most likely, Kavanaugh’s main motivation was to overturn the injunction constraining ICE, and in order to do so, he asserted baldly that the plaintiffs whose rights were in fact violated could have pursued a remedy in another way, notwithstanding his prior, successful efforts to make that essentially impossible.
The consequence of Kavanaugh’s heads-the-government-wins, tails-the-plaintiffs-lose reasoning is serious. If, based on past opinions, individual remedies are not in fact allowed against immigration authorities who violate your Fourth Amendment rights; and if individuals cannot obtain class-wide injunctions either pending an opinion; then the bitter conclusion is that this Supreme Court is currently willing to give a free pass to the federal government from violating people’s Fourth Amendment rights, on the ground of race or ethnicity or any other ground; and that they are doing their best to turn into a fiction, the notion of any individual using the court system to vindicate their right to be free of unreasonable, race-based searches or seizures.
If this conclusion sounds speculative, we should consider for a moment the past damage already done to the Fourth Amendment by Terry v. Ohio. Kavanaugh’s concurrence limits his consideration only to situations where ICE “stop[s] an individual for brief questioning about immigration status,” and doesn’t consider the variety of much more invasive conduct, including full arrest, detention and abuse, which form the factual record from the lower courts in this case. He therefore blows by the question of whether ICE agents had the proper Fourth Amendment “probable cause”, and considers only whether they had “reasonable suspicion”. That language, direct from Terry v. Ohio, casually treats “reasonable suspicion” as the only possible standard in the context of immigration, when that ruling originally devised “reasonable suspicion” as a small exception to the overall standard of probable cause in the context of brief police patdowns on the street. If we were talking only brief patdowns here, people would be a whole lot less outraged by ICE abuses. In a sense, then, his concurrence addresses only the fantasy conduct of a hypothetical ICE, not the paramilitary, masked-up, gratuitously violent ICE that is currently targeting people based on race for violent assault and abduction. Perhaps he is choosing to ignore ICE’s actual conduct, because a Brett Kavanaugh is much less likely to be subject to that conduct than a Hector Calderón.
Kavanaugh’s concurrence argues that ICE’s stops in Los Angeles County based on race or ethnicity are permissible, in conjunction with any of these four factors:
[T]hat there is an extremely high number and percentage of illegal immigrants in the Los Angeles area; that those individuals tend to gather in certain locations to seek daily work; that those individuals often work in certain kinds of jobs, such as day labor, landscaping, agriculture, and construction, that do not require paperwork and are therefore especially attractive to illegal immigrants; and that many of those illegally in the Los Angeles area come from Mexico or Central America and do not speak much English.
He then airily cites Brignoni-Ponce, a ruling that barred border stops motivated by the apparent race of a vehicle’s occupants, for the proposition that “[a]ny number of factors” can furnish reasonable suspicion for “illegal presence” of an individual; when the Court in that case used that phrase to permit officers wide latitude in considering the attributes of a car and the area it was driving in, when deciding whether they had reasonable suspicion for a vehicular stop (vehicular stops being systematically less protected under the Fourth Amendment).
The problem with these four factors is that none of them are particular to the individual being stopped. An individual’s lawful or unlawful presence in the United States is not conditional on whether she is in the Los Angeles area or in another area. Seeking day labor in Los Angeles County isn’t evidence of her being unlawfully present; millions of lawfully present poor people do the same. Not speaking English in Los Angeles County is not evidence of unlawful presence, and nor is apparent origin from Mexico or Central America. What Kavanaugh appears to be trying to do is to say that it’s “common sense”, and therefore Constitutional, for immigration officers to use a probabilistic analysis, based on the average characteristics of a group or of residents in a geographic area, to make Fourth Amendment-valid inferences about an individual. In other words, he’s applying collective, group-based judgments to a right that is fundamentally individual in nature. It’s no different in spirit to the assertion that, because Black Americans in Louisiana are more likely than white people to have been arrested for crimes, Louisiana police are justified under the Fourth Amendment in any stop-and-frisk they conduct of a Black person in Louisiana.
It is perfectly valid, if ICE has evidence of a specific individual‘s unlawful presence in the United States, for ICE to identify and detain that individual, without excessive force. However, it is invalid under the Fourth Amendment for ICE to go on roving patrols in areas known in general to have many unlawfully present people, and then to detain any individual on the basis of the fact that they look Hispanic and are present in that area. In Los Angeles County, which was part of Mexico before California became a state, 90% of its residents are lawfully present, and around half of the population are Hispanic. If we assume, favorably to Kavanaugh here, that all of the unlawfully present people in Los Angeles County are Hispanic, then simple math would tell us that 40% of County residents, or four million people, are both Hispanic and lawfully present. It’s not “common sense” for Kavanaugh to approve a rationale allowing ICE to stop and question any of those four million people, without any further, particularized evidence. To those four million people, many of whom are U. S. citizens, this isn’t “common sense.” It’s a license for gratuitous immigration enforcement intrusion, that will require them to carry proof with them at all times of their lawful presence. As the factual record in this case makes clear, even carrying proper ID won’t necessarily protect them from an ICE arrest. It’s for this reason that Sotomayor’s dissent to this order describes it as establishing a kind of “second-class citizenship.”
The reasoning of Justice Kavanaugh’s concurrence, if adopted by a majority on the Court, would thus create a fundamental disconnect in Fourth Amendment law. Individuals would have to prove that a particular search and seizure was unreasonable based on the specific facts and circumstances of their case. But the government could establish the reasonableness of searches or seizures based on generalizations about broad populations. The courts have already weakened Fourth Amendment rights in this way by allowing programmatic approval of government surveillance programs such as that operated pursuant to FISA Section 702. They should not further weaken privacy protections by extending this flawed reasoning into other contexts.
The Fourth Amendment has been weakened enough. It is critically important to not open the door wider to racism, by allowing government agents to treat race or ethnicity as a factor generating “reasonable suspicion.” Whether combined with their presence in Los Angeles County or not, ICE detaining somebody on the basis of race or ethnicity is inherently unreasonable.
To learn more about immigration and the Fourth Amendment, consult our issue brief: