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If you want your Fourth Amendment rights to mean something in America, you better not be Latino or Hispanic. Or look like you are. Or sound like it. Or work a job that some random ICE agent you have never met before thinks is an indicator of your legal citizenship status.
And if that sounds like dystopian hyperbole, it isn’t. Not as of this week.
In an unsigned order on Monday, the Supreme Court’s conservative majority ruled to halt a lower court order that had found that certain criteria used by federal immigration agents conducting raids in Los Angeles violated Fourth Amendment protections against search and seizure without reasonable suspicion.
That order, from U.S. District Judge Maame Frimpong in July, had prohibited ICE agents from stopping or arresting people in Southern California based on four factors: their apparent ethnicity, whether they spoke Spanish or had an accent, whether they were in a certain location where immigrants may gather, or if they worked a job considered common to undocumented immigrants. An appellate court upheld Frimpong’s order in August, prompting Trump administration lawyers to scurry to the Supreme Court and demand emergency intervention.
With Frimpong’s order frozen, “roving patrols” of ICE agents will carry on as they had been doing, as Attorney General Pam Bondi giddily exclaimed on social media, “without judicial micromanagement.”
Advocates and experts on immigration and civil rights are sounding the alarm, warning that the Supreme Court ruling is effectively a free pass for racial profiling and harassment, whether people are immigrants or not.
“It has the effect of putting anyone in Southern California who appears to be Latino at grave risk not just for questioning, but of potentially violent ICE arrests or detention regardless of whether they are a U.S. citizen, are here lawfully or otherwise,” Cecillia Wang, national legal director of the American Civil Liberties Union, told HuffPost.
University of Pittsburgh School of Law professor David Harris, who specializes in criminal justice and policing matters, told HuffPost that so much of what came out in Justice Brett Kavanaugh’s concurrence left him disturbed, perhaps most of all by Kavanaugh’s seemingly complete lack of awareness.
In a concurrence to the high court’s unsigned order on Monday — the only explanation for it — Kavanaugh wrote that “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,” Kavanaugh wrote.
“Brief” and “only” were doing a lot of heavy lifting, Harris explained.
Kavanaugh, notably, did not offer any discussion regarding how U.S. citizens or people lawfully in the country are supposed to “briefly” demonstrate their status with minimal infringement of their rights. The inference seems to be that people simply have to say “I’m a citizen” for immigration agents to end the stop — which is patently ridiculous, considering even people who have attempted to show agents proof of their citizenship have been harassed and detained.
“He obviously has no experience in situations like this and certainly has no experience as a person with a Hispanic appearance. And we already have evidence that people who simply appear that way are not just being stopped, but detained, and then they have to work very hard to get themselves out of trouble not of their own making,” Harris said.
“He’s very content to say, ‘This is all legal and will only affect this group of people who have no legal status,’ but he’s just wrong about that,” added Harris. “This is inevitably going to leak over into the larger population of Los Angeles and possibly other areas.”
Columbia Law School professor Elora Mukherjee told HuffPost that, effectively, the only way for people to protect themselves is to carry around documents proving their legal status. “Those who have documentation, whether lawful permanent residents or DACA holders,” she said, “they can carry proof of their status in the U.S.”
The result is obvious: “This decision makes the U.S. a ‘show me your papers’ country for the overwhelming majority of people, and those who will be targeted, by and large, are going to be people who are not white,” she said.
The idea that people must show documentation of their legal status in the U.S. or risk persecution (and in some cases, prosecution) is commonly associated with authoritarian states and dictatorships. When Nazism had a stranglehold over Germany in the 1930s, many Jews were forced to carry papers that identified them as Jewish, and thus marked for persecution, dehumanization, and, in the government’s plan, eventually murder.
“These are the most fundamental rights we have. These are the rights not to live in an authoritarian regime where any federal agent can simply make the demand of ‘show me your papers.’”
– Cecillia Wang, national legal director of the American Civil Liberties Union
Demanding that someone prove their legal status in their daily life brings not just significant challenges to individuals in a community but can also accelerate the degradation of society overall. In 2010, Arizona passed a state law known as SB 1070 that made it a crime for immigrants to walk around without carrying proof of their citizenship at all times. The law also gave police the right to arrest any immigrant they deemed guilty of a “deportable offense” and made it a crime for immigrants without papers to even attempt to find gainful employment without first getting a work permit.
The Supreme Court eventually struck down those provisions, but left one element of SB 1070 in place: Police in Arizona could still determine, or attempt to determine, a person’s citizenship status when they were actively arresting them for a crime or if the officer detaining that person developed reasonable suspicion that they were in the U.S. illegally. Leaving that element in place has led to confusion among police over enforcement, racial profiling and continued violations of people’s civil rights, according to the ACLU.
A study by the Center for Growth and Opportunity at Utah State University found the Arizona law’s impact still had significant effects a decade later: Enforcement had negative consequences on the physical and mental well-being of Latino and Hispanic residents and youth. Another study by the University of Arizona had similar findings about the psychological impact of the law. And as for economic impact, in its first year, SB 1070 throttled Arizona’s tourism, business, agriculture and more, according to the Center for American Progress.
And SB 1070 didn’t just affect undocumented people. There was spillover to “legal” U.S. residents who felt they were being labeled, ostracized, discriminated against and stereotyped. It also reduced the likelihood that they would report crimes committed against them and increased feelings of insecurity and emotional distress.
Wang believes being free from racial discrimination, including profiling, is on par with being free from unreasonable search and seizure, which is enshrined in the Fourth Amendment.
“These are the most fundamental rights we have. These are the rights not to live in an authoritarian regime where any federal agent can simply make the demand of ‘show me your papers,’” she said.
Until now, she said, this has been people’s “basic expectations about what it means to be an American or live in the United States.”
The Pew Research Center reported last year that the lion’s share of immigrants across California were either U.S. citizens or had some form of legal residency status, with only 1.8 million undocumented people. California has a Hispanic and Latino population of over 10 million. And broadly, more than half of the state’s immigrant population is naturalized, according to the Public Policy Institute of California.
There are millions of people in Los Angeles who are “perfectly legal,” Harris said.
“But they also may have a Latino or Hispanic appearance or have an accent, or maybe they just walk to work in working people’s clothes. Those people are now all at risk, too,” Harris said.
“This will have ramifications when it comes to the issue of public safety,” he continued, noting that community safety relies on a majority of people believing the system will protect them. “As this happens to people, and it cannot just be confined to who ‘deserves it,’ more and more folks will become touched by it. They’ll become alienated by it. And having the population on your side is the bread and butter of law enforcement.”
If the Trump administration really cared about public safety and cracking down on crime, then its immigration agenda runs counter to that goal, Harris added. It has made mass deportations the end game, which actually conflicts with the administration’s tough-on-crime posturing.
“If you really wanted to get crime under control, you would fully fund anti-violence programs that succeeded instead of closing them down. Or you would ask people on the ground, like governors, what they actually do need, like sending in more police versus sending in the military,” he said.
“People still have rights under the Fourth Amendment and protections to be free from racial discrimination by ICE agents or other law enforcement officers who profile them.”
– Wang
That factor — of what will actually help the issues the administration is claiming to address — is still relevant since this legal fight isn’t over yet. As Wang explains, it is important to understand that the Supreme Court’s unsigned order is not “precedential.” Because it is only blocking a lower court order rather than deciding the case on its own, the effective impact — requiring people to produce proof of citizenship — is very different from the permanent impact in written law.
Kavanaugh, in his concurrence, may have expressed his opinion at length on what merits or issues he thinks should guide the court’s decisions going forward, but there’s still a lot of fighting over the Fourth Amendment ahead, Wang explained. Litigation from plaintiffs, including both foreign nationals and U.S. citizens who have been detained, will continue on appeal.
“Ultimately, this will likely come back up to the Supreme Court,” she said. “It will be important to see the real-life impacts … as we continue to litigate the case. We’ll present the evidence and try to get another order based on the factual record. People still have rights under the Fourth Amendment and protections to be free from racial discrimination by ICE agents or other law enforcement officers who profile them.”
The Supreme Court’s order on Monday may have just kicked off an “even greater wave” of detention and arrests that will violate people’s Fifth Amendment rights, too, as Mukherjee noted.
“The Fifth Amendment requires due process of law,” Mukherjee explained, ”and what I and other attorneys have argued in federal courts since January is that before a person is detained — if they’ve been living with some form of liberty … [like] temporary protected status or paroled into [the] country — then they cannot just be summarily detained off the streets and be held indefinitely.”
Anything else would deny people their constitutional rights — which, yes, also apply to immigrants. “They need to have a pre-deportation hearing to determine whether liberty can be stripped from them in accordance with [the] due process clause of the Fifth Amendment,” Mukherjee said.
The best solution for individuals and families living in fear, she believes, is to think about what they can do for themselves and their loved ones.
“Have your identity documents on you. Have original ID documents organized and stored in a secure location that is accessible to people you trust in the event you get arrested or detained. Have a copy scanned where trustworthy individuals can access them if needed. Individuals should know about the ICE detainee locator, which people can use to find their loved ones after [they are] arrested or detained. And consider making emergency plans in terms of who would take care of children or elderly family members,” she said.
The Supreme Court’s decision has the potential to roll back years of protections aimed at trying to stop or mitigate racial profiling by law enforcement agencies, said Mukherjee. And it won’t just be Latinos in the crosshairs.
“The repercussions of this decision will open up the door to racial profiling of many other minorities,” she said.