It only sees white.
The tl;dr version, by Popehat.
Supreme Court Rules 6-3 That Fundamental Interests Of United States Of America Would Be Irreparably Harmed If It Race-Based Harassment And Detention By Masked Thugs Were Even Temporarily Halted
And they don’t have to explain that because: Supreme Court, bitches! Suck it!
Do you remember the movie where Cheech Marin was an Angeleno swept up in an immigration raid and dumped in Mexico? But he was an American citizen? Sounds familiar? It will from here on:
In this case, however, the District Court enjoined U. S. immigration officers from making investigative stops in the Los Angeles area when the stops are based on the following factors or combination of factors: (i) presence at particular locations such as bus stops, car washes, day laborer pickup sites, agricultural sites, and the like; (ii) the type of work one does; (iii) speaking Spanish or speaking English with an accent; and (iv) apparent race or ethnicity.1
That footnote shouldn't be overlooked:
The Los Angeles area at issue here is the Central District of California, which includes the counties of Los Angeles, Ventura, Santa Barbara, San Luis Obispo, Orange, Riverside, and San Bernardino.
That's a lot of ground to declare a 4th Amendment free zone. Kavanaugh is fine with that because:
The Government estimates that at least 15 million people are in the United States illegally. Many millions illegally entered (or illegally overstayed) just in the last few years.
Illegal immigration is especially pronounced in the Los Angeles area, among other locales in the United States. About 10 percent of the people in the Los Angeles region are illegally in the United States—meaning about 2 million illegal immigrants out of a total population of 20 million.
I am leaving out neither a footnote nor a citation to support those fact claims. If you think he's pulling numbers out of thin air, you are not challenged in doing so.
Kavanaugh writes his analysis of the 4th Amendment issues in high minded Supreme Court legalese, but the conclusion can be summed up in one phrase: if you're brown, you're suspicious until proven innocent.
To stop an individual for brief questioning about immigration status, the Government must have reasonable suspicion that the individual is illegally present in theUnited States. See Brignoni-Ponce, 422 U. S., at 880–882; Arvizu, 534 U. S., at 273; United States v. Sokolow, 490 U. S. 1, 7 (1989). Reasonable suspicion is a lesser requirement than probable cause and “considerably short” of the preponderance of the evidence standard. Arvizu, 534 U. S., at 274. Whether an officer has reasonable suspicion depends on the totality of the circumstances. Brignoni-Ponce, 422 U. S., at 885, n. 10; Arvizu, 534 U. S., at 273. Here, those circumstances include: that 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. Cf. Brignoni-Ponce, 422 U. S., at 884–885 (listing “[a]ny number of factors” that contribute to reasonable suspicion of illegal presence). To be clear, apparent ethnicity alone cannot furnish reasonable suspicion; under this Court’s case law regarding immigration stops, however, it can be a “relevant factor” when considered along with other salient factors. Id., at 887.
Yes, it can be; but is that what's going on here? The dissent cites the record, showing it is not. Kavanaugh can't be bothered with the facts of the case. He's far too interested on lofty high court notions of Law to bother himself with mere facts. (The lawyers will understand my sarcasm. It was drilled into my head in three years of law school: change the facts, change the outcome. What Kavanaugh is doing is ignoring the facts, and creating his preferred outcome. Funny none of the other justices want to commit the reasoning for their preferred outcome to scrutiny. Or, for that matter, guidance to the lower courts.)
Under this Court’s precedents, not to mention common sense, those circumstances taken together can constitute at least reasonable suspicion of illegal presence in the United States. Importantly, reasonable suspicion means only that immigration officers may briefly stop the individual and inquire about immigration status. If the person is a U. S. citizen or otherwise lawfully in the United States, that individual will be free to go after the brief encounter. Only if the person is illegally in the United States may the stop lead to further immigration proceedings.
Which, again, as the dissent points out, is not what happened, per the record from the trial court, again and again.
Is this where I point out that Mexicans, in particular, have been in the Southwest, including California, including Texas, since before the government of the United States had authority over those regions? And as the dissent points out, "brief questioning" is the rare case in the interactions of ICE agents and even U.S. citizens.
The assumption of regularity is alive and well inside the bubble of the Supreme Court. Or just the assumption that brown people have it coming, and if they can't prove their legitimacy, they can be presumed illegitimate, and treated accordingly. Time was, the justices had to ride the circuits so they’d be in touch with the law as practiced in trial courts. Time to consider a new rule like that. The Court is clearly too far removed from reality.
The discussion of “reasonable suspicion” in the opinions stirs the ashes of memory of first year criminal law. Basically, it’s a low barrier, but not a non-existent one. If the word goes out to look for a six foot black male in a hoodie, that’s not permission to stop, detain (even for the length of the question), and interrogate any and every black male to remove them from suspicion. Or, rather, it shouldn’t be. But Kavanaugh says, if you live in a city with a purportedly high number of “illegal immigrants” (his term, and not a legal term of art), and “look” Latino (like Patti Jinich? Or Sofia Vegara?), speak Spanish (like my niece, who studied it in school?), or English with an accent (back to Ms. Jinich), and are in the parking lot of a Home Depot (“they” hang out there looking for work, you know. I am barely paraphrasing Kavanaugh’s concurrence), that is enough to demand your papers and detain you.
“Detention” is a legal term of art. A policeman may stop you and ask your name, but beyond that his order to stand still and answer questions becomes a 4th Amendment violation unless he has reasonable suspicion to detain you. Speaking with an accent in a Home Depot parking lot wearing brown skin is not supposed to meet that minimum requirement.
Basically, the Court (via the shadow docket; only Kavanaugh and Sotomayor wrote opinions) now says the 4th amendment only applies to white people.
Sotomayor confronts Kavanaugh with the record from the trial court that he conveniently ignores. Why worry about the facts of the case when you can pontificate on the abstractions of the law from your ivory tower? Kavanaugh waives away the damage of unlawful detention as de minimus, especially where non-white citizens are concerned (after all, ICE is never going to stop him in a parking lot). Like, say, this:
In early June, the Government launched “Operation At Large” in Los Angeles, deploying roving patrols of armed and masked immigration agents to local car washes, Home Depots, tow yards, bus stops, farms, recycling centers, churches, and parks. Over the course of the next month, the Government made nearly 2,800 immigration-related arrests and detained many more.
For instance, on June 9, immigration agents arrived at a tow yard in Montebello “carrying handguns” and “military-style rifle[s].” ECF Doc. 45–9, p. 6.1 Jason Gavidia, a Latino U. S. citizen, was working on his car in the tow yard that day. A masked agent ordered Gavidia to “‘[s]top right there’” and began asking him questions. Ibid. Agents then asked Gavidia whether he is “American at least three times”; three times, Gavidia affirmed that he is. Ibid. Unsatisfied, the agents asked Gavidia for the name of the hospital in which he was born, and when Gavidia could not immediately recall, the agents racked a rifle, took Gavidia’s phone, “pushed [him] up against the metal gated fence, put [his] hands behind [his] back, and twisted [his] arm.” Id., at 6–7. Agents released Gavidia only after he offered up his REAL ID. That ID was never returned to him.
Less than 10 miles away in Whittier, immigration agents raided a car wash managed by U. S. citizen Jorge Viramontes. In the nine days between June 9 and 19, agents returned four times, each instance in the middle of the workday. On one occasion, an agent questioned Viramontes, asking if he is a citizen and requesting that he show his ID. Viramontes replied that he is a dual U. S. and Mexican citizen and supplied his California driver’s license. The agent said the ID was insufficient, “grabbed [his] arm, escorted him to a vehicle, and drove him to a “warehouse area” for further questioning. ECF Doc. 45–4, p. 6. Agents detained Viramontes for 20 minutes while they made calls to verify his U. S. citizenship and examined his Mexican ID before eventually driving him back to work.
Other Operation At Large encounters have included even more force and even fewer questions. For example, agents pulled up in four unmarked cars to a bus stop in Pasadena; “the doors opened and men in masks with guns started running at” three Latino men who were having their morning coffee, waiting to be picked up for work. ECF Doc. 45–1, p. 5. In Glendale, nearly a dozen masked agents with guns “jumped out of . . . cars” at a Home Depot, and began “chasing” and “tackl[ing]” Latino day laborers without “identify[ing] themselves as ICE or police, ask[ing] questions, or say[ing] anything else.” ECF Doc. 45–6, pp. 5–6. In downtown Los Angeles, agents “jumped out of a van, rushed up to [a tamale vendor], surrounded him, and handled him violently,” all “[w]ithout asking . . . any questions.” ECF Doc. 38–9, p. 7; see also, e.g., ECF Doc. 45–14, p. 5 (masked agents with guns “ran out of the vehicles and rushed towards the workers” at a car wash); ECF Doc. 45–11, pp. 5–6 (three masked agents wearing bullet-proof vests got out of a car with “rifles” at a Home Depot and tear-gassed the crowd).
The operation has sparked “panic and fear” across Los Angeles and its surrounding areas. ECF Doc. 45–8, p. 10. Some have likened the detentions to “kidnapping[s].” ECF Doc. 45–2, p. 5; ECF Doc. 45–3, p. 5; ECF Doc. 45–7, p. 7. One Latino U. S. citizen “feel[s] like [he] need[s] to carry [his] passport for protection, in case federal agents stop [him] again.” ECF Doc. 45–21, p. 5. Another Latino U. S. citizen similarly “worries that as a visibly Latino man, he could be detained” if he does not carry his passport, but “decided against [doing so] because he believes that as an American, he should not have to live like that in his own country.” ECF Doc. 38–9, at 6. Many are “struggl[ing] to make ends meet” because they are “afraid to go to work.” ECF Doc. 45–8, at 15; see ECF Doc. 45–13, p. 8. Others are “reluctant to attend school meetings” and “pick their children up from school” for fear of being detained. ECF Doc. 45–8, at 12.
Kavanaugh is full of shit.
To put this into context, the judicial warrant for the search at the Hyundai plant named just four people.
Relying on that warrant, ICE detained nearly 500 people. DHS admitted that included U.S. citizens, permanent residents, and people lawfully here on visas.
But it's clear he's writing a concurrence (which no other justice joined) to give the lower courts the guidance he complained they weren't following, and they complained the Court wasn't giving. Do any other justices agree with Justice Kavanaugh? Not enough to so blatantly run roughshod over the 4th Amendment as he does; but enough to be in the majority on the court's conclusion. Behold the convenience of the shadow docket, which allows even the Justices to wear masks.
This is not how the 4th amendment is supposed to work. "The operation has sparked ‘panic and fear’ across Los Angeles and its surrounding areas"? That is precisely what the 4th Amendment is supposed to prevent: panic and fear generated by the government. Go back and read Shakespeare: he is a critical observer of the nature of power, especially when wielded by government. But he is careful never to impugn the sovereign. Tower Bridge was festooned with the rotting heads of those who displeased "Good Queen Bess" and disappeared into the Tower, only to reappear much later as a head decorating the bridge. Panic and fear marks the failure of governance in America, and we despise it in our history for the way it treated African slaves, and natives on their own land, and even Japanese Americans in California and elsewhere. And here is the Supreme Court saying, well, a little panic and fear is okay, so long as the people affected don't speak clear English and don't look as white as Justice Kavanaugh and happen to be in church; or a parking lot; or a park. And after all, how do we know they aren't "illegal" until they satisfy the whims of an anonymous ICE agent with a gun?
The rest of the majority didn't concur with Justice Kavanaugh's opinion, but that distinction is wholly academic here. They signed off on the results, whatever their excuses are for supporting them.
Although they never mention it in their opinion (how could they? They didn't submit one! "We're the Supreme Court, bitches!"), the Sinister Six are too busy taking turns beating the 4th Amendment with a ball peen hammer to answer further.
