| Last week’s emergency-docket decision by the Supreme Court in Noem v. Vasquez Perdomo to lift a preliminary injunction entered by a federal district judge in Los Angeles against U.S. Immigration and Customs Enforcement (ICE) officials has caused understandable consternation on the part of civil rights groups and immigration-rights activists, among others. The district court had enjoined ICE agents from over-relying on an individual’s skin color, Spanish language use, occupation, and physical location in deciding whether to detain that person for investigation of the person’s immigration status. The case was brought by (among others) several individuals, some of whom are U.S. citizens, who were detained by ICE officials allegedly on the exclusive basis of a combination of the four factors identified above. The plaintiffs argued that the Fourth Amendment’s requirements that government have individualized reasonable suspicion or probable cause of a person’s wrongdoing before that person can be seized was being violated by ICE policy that made use of these factors. As the U.S. Court of Appeals for the Ninth Circuit (which declined to disturb the preliminary injunction) explained: | The district court ordered that. . . defendants were not permitted [within the Central District of California, which includes seven counties, from Orange County to San Louis Obispo County and Los Angeles County to Riverside County] to rely solely, alone or in combination, on the following factors to form reasonable suspicion for a detentive stop: apparent race or ethnicity; speaking Spanish or speaking English with an accent; presence at a particular location [such as an agricultural site]; the type of work one does [such as day labor].
| | The Supreme Court, with the three Democrat-appointed Justices dissenting, granted the federal government’s request to stay (or block) the district court order’s implementation, pending further litigation of the case on the merits. What that means in practice is that ICE agents within the capacious Central District of California remain free to make use of the factors at issue in the case, including “apparent race or ethnicity,” in making detentive stops for immigration purposes. The Court did not issue an explanation that spoke for the majority, but Justice Brett Kavanaugh did write an opinion setting forth his reasons for concurring in the decision to grant the government’s application. While Justice Sonia Sotomayor’s dissent was joined by Justices Elena Kagan and Ketanji Jackson, our attention below will focus on Justice Brett Kavanaugh’s writing, which has received the bulk of analysts’ attention. | | THE GOOD | | What positive things can be said about Justice Kavanaugh’s explanation? Importantly, that he felt the need to explain at all. Of course we don’t know any of the other five Justices who voted to grant (and perhaps there was no single rationale that commanded a majority), but as Justice Sotomayor’s dissent powerfully observed, the Court’s unexplained intervention in Vasquez Perdomo is part of a troubling pattern in recent months by which significant, precedent-altering law is frequently being made without any meaningful justification that accounts for the votes of a majority of the Court. To his credit, Justice Kavanaugh is less guilty of this disturbing practice than are many of the other Justices whose votes are often similar to his own. | | Second, Justice Kavanaugh does purport to place some limits on ICE’s ability to rely on race. As he puts the point: “to be clear, apparent ethnicity alone cannot furnish reasonable suspicion.” But he quickly (and problematically, as we explain below) adds: “however, it can be a 'relevant factor’ when considered along with other salient factors.” (citation omitted). | | THE BAD | | So much for the good. Unfortunately, the bad is somewhat more copious. For starters, he suggests that plaintiffs likely lack Article III standing and, on that ground, will probably lose their case. In reaching this conclusion he not only relies on, but inexplicably and implausibly extends, the highly criticized 1984 Los Angeles v. Lyons ruling. In Lyons, Adolph Lyons had been victimized by the Los Angeles Police Department’s (LAPD) use of a chokehold device he claimed violated the Fourth, Eighth, and Fourteenth Amendments. He sued the City of Los Angeles for damages and also for an injunction preventing the LAPD from unconstitutionally choking him again. (The chokeholds at issue in Lyons and other cases at this time were not child’s play; for example, 16 or so persons died from LAPD chokeholds between 1975 and 1982.) The U.S. Supreme Court held that while his damage claim presumably could go forward, his claim for an injunction was not justiciable because he was very unlikely to be subject to another chokehold, in part because even if he were to encounter police again in the near future the odds are low that he would “provoke the use of a chokehold by resisting arrest, attempting to escape, or threatening deadly force or serious bodily injury.” Lyons was bad law on its own facts, first because (as the Court seemed to concede) Lyons’s damage claim already established a “case or controversy” within the meaning of Article III of the Constitution, and so the question of his entitlement to an injunction should have been considered to be a matter of remedial discretion, not (as the Court suggested) constitutional authority. Moreover, because Lyons could have sought and obtained an injunction the instant before he was choked the first time had he been able to call a time-out and invoke a judge’s intervention then and there, that ripe-at-that-time claim for an injunction should not have become legally moot simply because of the practical reality that litigation takes time. Recognition of that practical reality is, after all, what drives the “capable of repetition yet evading review” exception to mootness the Court has explicitly recognized. | | But however bad Lyons was (and it was bad and should not be relied upon, especially by a Court and a Justice for whom first principles are more important than stare decisis), it simply has no application to Vasquez Perdomo. As fellow Verdict columnist Mike Dorf put it on his blog: | As Justice Sotomayor . . . 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 [and ethnicities] for immigration enforcement raids.
| | This point seems so obvious (especially because the dissent made it too) that we are reluctant even to spend time echoing Mike, except that even smart legal minds (see Orin Kerr’s post, for example) seem to unquestioningly accept and endorse Justice Kavanaugh’s use of Lyons. We emphasize this point also because the error in Justice Kavanaugh’s extension of Lyons would mean that even if ICE had a policy of relying on race alone (which Justice Kavanaugh says is plainly impermissible) no one would have standing to sue for injunctive relief in that situation either. | | There is also plenty of bad (or at least question-begging) in Justice Kavanaugh’s discussion of the merits. To be sure, Justice Kavanaugh explains correctly that reasonable suspicion is a lesser standard than probable cause, and that it is determined by considering the totality of the circumstances. In listing and evaluating those circumstances, however, he raises more questions than he resolves. | | First, he never grapples with the fact that previous “reasonable suspicion” cases by the Court require more than statistical correlations and probabilities but some kind of “individualized” or “particularized” reasons for detaining an individual, even briefly. To be sure, the meaning of “individualized” can be arguable in some instances. For example, imagine that past police arrest records make clear that a particular street corner is a very common venue for certain kinds of criminal activity at certain times of the day; would stopping all of the individuals (a small number of racially diverse folks) at that locale at those times be unconstitutionally based on population-wide statistics or instead permissibly based on “individualized” assessment of that venue? Moreover, the Court’s own caselaw has so many implausible exceptions and deviations from the ostensible requirement of individualized suspicion (think airport and school metal detectors, random drug searches, sobriety checkpoints, administrative subpoenas of large groups of people, drug tests for transportation employees, etc.) that one has to wonder how seriously the Court takes its own doctrine, and whether the Court would, if pressed, create an “immigration” exception alongside all the others, given the difficulty of immigration enforcement. To be clear, we are not arguing that the results of any of these cases invoking exceptions are wrong—the Fourth Amendment, after all, speaks of overall “reasonable[ness]” and not of “individualized” suspicion, and one of us (Professor Amar) has been on record in favor of a move away from the Court’s arbitrary doctrinal boxes in favor of a more holistic reasonableness analysis. But if the Court is going to make that kind of move, it should not be in a shadow-docket case, and it certainly shouldn’t be without a robust explanation. | | And even if the Court were to openly move away from individualized suspicions to focus on group statistical generalizations, it would have to do so much more carefully than Justice Kavanaugh does, especially where race is concerned. One key factor he identifies is the “extremely high number and percentage of illegal immigrants in the Los Angeles area,” a number Justice Kavanaugh describes as 10 percent of the people in the region, or approximately 2 million illegal immigrants. Even assuming his statistics are valid, there is no evaluation of what percentage of Hispanic-looking and sounding men at day labor sites in Southern California are in the U.S. unlawfully. In other words, Justice Kavanaugh doesn’t ask at all how overinclusive ICE’s race-based (at least in part) policy might be. It is certainly possible that the “hit rate,” if you will, of undocumented persons among groups of Hispanic men near Home Depots is equal to or higher than the 10% baseline. But given the publicity over ICE raids (and the fear it has stirred among undocumented persons) that rate could also be much lower than 10%. The fact that Hispanics and Spanish-sounding folks make up such a large percentage of Angelinos and of day laborers means that there are many, many, Hispanic men working as day laborers in the region who are not in the U.S. unlawfully. Justice Kavanaugh never demands that the government (which has more information on these questions than do plaintiffs) demonstrate, empirically, that its targeting of persons and locations is sufficiently free of under- and over-inclusiveness to count as reasonable. | | Justice Sotomayor’s dissent highlights these failures. Focusing on precedent she reminds us that “a set of facts cannot constitute reasonable suspicion if it describes[s] a very large category of presumably innocent’ people. . . . Never mind that nearly 47 percent of the Central District’s populations identifies as Hispanic or Latino . . . Never mind that over 37 percent of the population of Los Angeles County speaks Spanish at home. . . .” | | Justice Sotomayor’s last point, about the prevalence of Spanish speakers, bears emphasis. Putting aside native Spanish speakers who might speak Spanish at home, California is home to over 750 Spanish immersion programs in its public education system. Every year the state is graduating thousands of students whose use of their achievements as bilingual speakers somehow marks them, under ICE’s policies, as suspicious and fuels the perception that they are unlawful immigrants. | | There may be room for useful discussion on this issue, about just how large the category of innocents defined by a particular policy must be for the policy to be rejected as unreasonable. But there is simply no such discussion in Justice Kavanaugh’s concurrence because a concern for detaining a significant number of innocent individuals for stops is never addressed. | | Part of Justice Kavanaugh’s silence here is likely explained by the kind of limited detentions he appears to think are at issue. He repeatedly emphasizes what he views as a de minimis burden of stops on lawful immigrants or citizens: “Importantly, reasonable suspicion means only that immigrant 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.” | | But just how does Justice Kavanaugh envision an individual’s lawful presence in the U.S. is to be established such that she is free to go? If all detained individuals have to do is to assert that they are citizens or lawful immigrants, the encounter would indeed be brief, but also completely ineffectual from ICE’s perspective. And there is no reason to think that such bare assertions would be accepted. All the record evidence described in Justice Sotomayor’s dissent is to the contrary. If Justice Kavanaugh is licensing detentions based even in part on race, it is incumbent on him to show not only (as discussed above) that the enforcement gains are substantial enough to justify racial means, but also that the detentions he is willing to allow have to remain very minimal in duration and force. But he never says that; his suggestion that excessive force claims can be litigated not only ignores immunity doctrines but also fails to recognize that force might not rise to the level of excessive within the meaning of due process but can still be unreasonable under the Fourth Amendment, especially where race is being used as a sorting tool. | | All of this leaves us to wonder whether all of us (or at least all of us who “look” Hispanic, speak Spanish, or speak English with an accent) must carry proof of legal status with us at all times? For citizens, does that require carrying a United States passport everywhere? (Note here that half of American citizens do not even have passports.) Must lawful immigrants carry alternative proof of legal status? If this evidence is at home or otherwise not immediately accessible, can the investigative detention continue until it is provided to the immigration officer’s satisfaction? | | The failure of the concurrence to elaborate on what an investigative stop by immigration officials can entail contributes to Justice Kavanaugh’s one-sided discussion of the equities in this case. Having to establish citizenship through a passport or other documents is itself a burden. Further, if an individual’s workday is disrupted to respond satisfactorily to an immigration officer’s inquiries, he may lose pay because of lost time off the job. Employers may be reluctant to hire lawfully present Hispanic workers or those who speak Spanish out of a concern that their presence at the workplace may trigger ICE raids or that temporary detentions will interfere with the performance of job duties. On top of this, there is some stigma attached to being hauled off as an illegal immigrant, even if mistakenly. Onlookers who see workers taken away may not be there to see that they were later released. Indeed, one may argue that the very use of ethnicity and language as proxies for illegal status communicates the invidious message that most Hispanics are here illegally. | | It may be that a fair balancing of the equities in this case, even taking into account the need for extra caution in making any race-based decision and the reality of what an investigative stop entails, would still result in a ruling favorable to the government. The effective enforcement of immigration laws is never going to be without cost and free from all externalities. But a persuasive account of such a fair balancing should involve a more focused attention on the competing interests than the concurrence provides. | | The UGLY | | Most importantly, one might have expected a judicial decision allowing government to take race and ethnicity into account (as well as language and accents which we consider to be factors tightly related to race and ethnicity) to say something about the depth of our core constitutional commitment to rejecting such considerations. This is a Court, after all, that recently held race cannot be a factor in college admissions, no matter how closely it correlates in a statistical sense with legitimate educational goals or the background or perspective of applicants. Even hunches based on professional experience about race are impermissible tools for lawyers in deciding which potential jurors to strike through preemptory challenges. The enforcement of immigration laws may require a limited exception to this commitment. But one would hope that our country’s historical and constitutional misuse of race should warrant some words of caution when describing the scope and operation of this exception. Remember, we are talking here not about the inclusion (in, say, an APB) of a person’s race in a witness-provided description of an individual suspect after a crime has been committed; we are talking about sweeping racial correlations (also known as generalizations) about (il)legitimate presence in a diverse and cosmopolitan community. | | In reading Justice Kavanaugh’s concurrence, we get the sense that consideration of racial correlations in reasonable suspicion analysis warrants no greater judicial attention than consideration of any other statistical factor. In other words, his concurrence reads as if an ICE policy based on race and occupation would be no different from one based on location and occupation. But legions of cases under equal protection (and how can constitutional equality not be a factor in reasonableness?) teach us that not all classifications or sorting tools should be viewed with similar skepticism. In this regard, the district court’s order itself was quite thoughtless in banning “any combination” of the four factors at issue; an ICE policy detaining every person seeking work outside a Home Depot (including a large number of Whites, Blacks, and Asians) is very different from the ICE policies actually being deployed. The Justices could perhaps have justifiably vacated the district court order on this, much narrower, ground, and avoided the ugly look of a Court that is rigidly color-blind, except when it’s not. |
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