Supreme Court’s ‘Go Ahead And Round Up All The Brown People’ Decision Is Being Challenged In Court

Legal Issues

from the racists-and-their-SCOTUS-enablers dept

In July, a California federal court handed down what should have been considered an obvious decision: of course it violates constitutional rights to consider skin color, spoken language, “accent,” or place of employment sufficient to support a stop, much less arrest and detainment. In August, the appeals court affirmed that ruling following the government’s absolutely expected rejection of that solid decision.

Of course, the Trump administration appealed this decision as well because respecting rights meant ICE might not hit the lofty standards of 3,000 arrests per day — not if it had to come up with better reasonable suspicion and/or probable cause than “suspect looked kinda brown.”

In September, the US Supreme Court, led by Justice Brett Kavanaugh, ruled otherwise. It said — without saying much at all as it buried this in its shadow docket — that racial profiling is fine, actually. If people don’t like it, maybe they should be more white and less likely to be employed by… oh, I don’t know… roofing companies.

Kavanaugh said none of this was a problem. After all, anyone who’s actually here legally would obviously be free to go moments after “interacting” with immigration officers.

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.

That’s simply not true, and its especially not true in a nation currently run by hateful bigots who have long since abandoned any pretext of rooting out the criminal element (what little there is of it) from the country’s immigrant population.

We’ve already covered multiple stories about US citizens being questioned, detained, and arrested by ICE officers simply because ICE officers have chosen not to believe their assertions about their citizenship and legal residence, even when presented with US-issued documentation.

One of those people Kavanaugh thinks won’t be irreparably harmed (much less sent to some foreign hellhole) by unjustified stops or detentions is Leo Venegas, an American citizen who actually has a government-mandated REAL ID. Despite being an early adopter of a form of ID the federal government claims is so “mandatory” it hasn’t actually made mandatory yet despite a decade-long string of empty threats, Garcia was attacked and arrested by ICE officers who insisted his ID was “fake.”

Video of the arrest, aired by Noticias Telemundo, showed authorities grabbing Leonardo Garcia Venegas, 25, while at a job site in Foley, Alabama, on Wednesday and bending his arms behind him. Someone off-camera can be heard yelling, “He’s a citizen.”

Garcia told Noticias Telemundo that authorities took his ID from his wallet and told him it was fake before handcuffing him.

Garcia isn’t the only US citizen or legal resident who’s been detained or arrested by federal officers who refuse to believe any assertions or documentation offered by those they’re harassing. So, Kavanaugh is dead wrong about how the law actually works when deployed by federal agents, on top of being completely wrong about the Constitution.

The Constitution says citizens should not be subjected to “papers, please” harassment unless the government can justify this imposition. The Supreme Court’s quasi-ruling says otherwise: citizens should be required to produce documentation whenever the government demands it, whether or not the government has any justifiable reason to do so. In essence, the Supreme Court has ruled that — at least for anyone falling on the wrong side of the Family Guy color chart — citizens and legal residents only have privileges that must be earned by placating government officers engaged in racial profiling in service of satisfying the ruling bigots’ desire to rid this country of non-white people.

Kavanaugh also says the proper avenue for argument or recourse is the courts, even while indicating the courts will no longer recognize enshrined rights during immigration control efforts. But then he limits it to “excessive force” claims, which does not address the claims brought in the original suit and limits further action to simply this sort of claim.

Kavanaugh also conveniently ignores the fact that the court he works for has done everything it can over the past couple of decades to make suing federal officers for rights violations all but impossible by restricting qualifying legal claims to (more or less) pretty much only person who has ever succeeded in this particular form of litigation.

But maybe this “emergency” ruling by the Supreme Court won’t stick. The only way to make sure it won’t is to challenge it, which is what Leo Venegas is doing with the assistance of the Institute for Justice. Venegas is suing the government in an Alabama federal court, challenging immigration enforcement activities that repeatedly violate basic civil rights and liberties.

There’s a good chance this will go nowhere, especially when it comes to the federal officers listed as defendants, given the Supreme Court’s unwillingness to even entertain the few appeals that happen to land on its docket. It’s a potential class action lawsuit [PDF], which Balls and Strikes notes in its coverage, which details this lawsuit’s direct attack on Kavanaugh’s horseshit, barely-there “defense” of the indefensible:

Leo is trying to sue on behalf of people who are experiencing exactly what Justice Brett Kavanaugh recently claimed people don’t experience. On September 8, in Noem v. Vasquez Perdomo, the Supreme Court lifted a lower court order which had blocked federal immigration agents in Los Angeles from stopping people just because they look Latino. The three Democratic appointees dissented, and five of the Republicans did not even try to defend the indefensible. But in a solo concurrence, Justice Brett Kavanaugh gave it his best shot, asserting that the government’s interest in enforcing immigration laws outweighs undocumented residents’ interest in evading immigration laws, and for legal residents, immigration stops are harmless.

Let’s make things perfectly clear, especially for those who either are these cowardly “conservative” justices and/or their supporters: there is no such thing as a “harmless” stop. Every stop is harmful. That’s why the government needs to have permission to stop or detain US citizens, legal residents, and (LEST WE FORGET) anyone else currently in the United States, regardless of their legal status.

Reasonable suspicion, border exceptions, warrants, exigent circumstances, etc.: these are all permission slips for the government to infringe on the enshrined rights of the people. Those rights are supposed to be considered protected by default, hence the need for government justification when routing around them. We have no such obligation to the government. Hopefully, this case moves forward far enough it will require the Supreme Court to actually address this government overreach head on, rather than just dispense with it quickly and quietly, denying litigants the adversarial process they’re supposed to be guaranteed under the US Constitution.

But until that happens, the status quo is nothing more than the ugliness we see every day: masked officers rounding up people for no other reason than they’re not white, or don’t speak English well enough, or simply do the sort of jobs most people assume will only be undertaken by people in the country illegally. And if that’s what America is going to be, it’s no longer a country worth living in or fighting for.

Filed Under: 4th amendment, 5th amendment, bigotry, brett kavanaugh, dhs, ice, kavanaugh stops, leo venegas, mass deportation, supreme court, trump administration