Supreme Court Allows Stops Based on Race to Continue

The Supreme Court last week allowed federal agents to stop and question people based solely on factors like their race.

In a 6-3 order with no reasoning or explanation, the Court granted the federal government's request that it stay a lower court's order barring federal agents from engaging in illegal racial profiling.

"When ICE grabbed me, they never showed a warrant or explained why. I was treated like I didn't matter-locked up, cold, hungry, and without a lawyer," Pedro Vasquez Perdomo, a named plaintiff in the case, said in a statement. "Now, the Supreme Court says that's okay? That's not justice. That's racism with a badge."

"Roving Patrols"

In early June, the federal government deployed "roving patrols of armed and masked immigration agents to local car washes, Home Depots, tow yards, bus stops, farms, recycling centers, churches, and parks" in Los Angeles, where they arrested nearly 2,800 people and detained many more over the next month, Justice Sonia Sotomayor explained in a dissenting opinion joined by Justices Elena Kagan and Ketanji Brown Jackson.

"Countless people in the Los Angeles area have been grabbed, thrown to the ground, and handcuffed simply because of their looks, their accents, and the fact they make a living by doing manual labor," the dissent observed. U.S. citizens are among those "being seized, taken from their jobs, and prevented from working to support themselves and their families."

Jason Gavidia, a Latino U.S. citizen, was working on his car in a tow yard in Montebello when armed and masked immigration agents stopped and questioned him. He repeatedly told them he is a citizen, but they racked a rifle, took his phone, pushed him up against a metal fence, put his hands behind his back, and twisted his arm when he could not name the hospital where he was born. They released him only after taking his REAL ID.

When immigration agents raided a Whittier car wash managed by U.S. citizen Jorge Viramontes, he was grabbed by the arm, taken to a vehicle, and detained in a warehouse after he said he is a citizen and presented his California driver's license. After taking 20 minutes to "verify" his citizenship, agents eventually drove Mr. Viramontes back to work.

Mr. Gavidia, Mr. Viramontes, three other individuals who were seized in Los Angeles, and four associations filed a federal lawsuit alleging that stopping people without reasonable suspicion violates the Fourth Amendment.

The plaintiffs moved for a temporary restraining order to prevent federal agents from stopping people based solely on four factors: their apparent race or ethnicity, speaking Spanish or speaking English with an accent, being present at certain locations (bus stops, car washes, farms, or pickup sites for day laborers), or the type of work they do.

The U.S. District Court for the Central District of California granted a TRO on July 11 after concluding that stops based on one or more of these four factors, without more, could not satisfy the Fourth Amendment's requirement of reasonable suspicion. The government appealed to the Ninth Circuit Court of Appeals, which denied a stay pending appeal.

Trampling the Fourth Amendment

The Fourth Amendment forbids federal immigration agents from stopping a person unless "they are aware of specific articulable facts, together with rational inferences from those facts, that reasonably warrant suspicion" that the individual "may be illegally in the country," as Justice Sotomayor explained.

This "reasonable suspicion" standard requires more than a "hunch." It cannot be met with facts that apply to a large category of presumably innocent people, as Supreme Court precedent previously made clear.

In one case described by the dissent, for example, the Court held that Border Patrol agents lacked reasonable suspicion to stop cars near the border based solely on the driver's apparent "Mexican ancestry" because "large numbers of native-born and naturalized citizens have the physical characteristics identified with Mexican ancestry."

Accordingly, the District Court held that the four factors-apparent race or ethnicity, speaking Spanish or English with an accent, location, and type of work-cannot provide reasonable suspicion because they are "no more indicative of illegal presence in the country than of legal presence."

The government did not "meaningfully contest" the lower court's conclusion that federal immigration agents are seizing people in Los Angeles based solely on the four factors, according to the dissent. The Court's order nonetheless allows these stops to continue, even if they are based on the person's race.

"Allowing the seizure of any Latino speaking Spanish at a car wash in Los Angeles," Justice Sotomayor wrote, "tramples the constitutional requirement that officers 'must have a particularized and objective basis for suspecting the particular person stopped of criminal activity.'"

"Fair Game"

The dissent warns that the federal government "has all but declared that all Latinos, U. S. citizens or not, who work low wage jobs are fair game to be seized at any time, taken away from work, and held until they provide proof of their legal status to the agents' satisfaction."

The federal district court will hear further arguments about whether to issue a preliminary injunction in the case next week, according to the ACLU of Southern California.

But for now, the Fourth Amendment's protections may no longer apply to "those who happen to look a certain way, speak a certain way, and appear to work a certain type of legitimate job that pays very little," the dissent concluded, adding that this is "unconscionably irreconcilable with our Nation's constitutional guarantees."

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