From that one line, which Anil Kalhan dubbed “Kavanaugh Stops,” we see story after story of just how disconnected from reality, and the Constitution, Brett Kavanaugh was in that statement.
My name is George Retes. I am — I was born and raised here in Ventura, California, I’m 26 years old and I am an Iraq combat veteran…. I was going to work like normal. I show up. ICE is there. There’s kind of like a roadblock. I get out. I identify myself, that I’m a U.S. citizen, that I’m just trying to get to work…. I’m getting ready to leave and they surround my car, start banging on it, start shouting these contradictory orders…. Even though I was giving them no reason, they still felt the need to — one agent knelt my back and another agent knelt on my neck. And during that time, I’m just pleading with them that I couldn’t breathe…. I was an isolation. I was in basically this concrete cell. I was stripped naked in like a hospital gown. And they leave the lights on 24/7…. They just came out and they said that I was violent and that I assaulted agents. Why lie when it’s on video of everything that happened? Why lie?
That’s just one person’s story in that PBS piece. There are two others as well. And we already know hundreds of other US Citizens have been kicked, dragged, beaten, and detained for days. It feels like every few days we hear about more such stories. And those are only the ones that get attention. You have to assume that there are many more ones that haven’t yet reached the public.
It feels like perhaps Justice Kavanaugh owes us all an explanation. And an apology. And a new ruling that makes it much clearer that immigration enforcement officials have no right to just randomly stop and detain people without a reasonable suspicion, based on specific articulable facts, and those facts need to be more than “skin color” or “they were being annoying to us.”
Obviously, that’s not how things are supposed to work here in America, which proudly considered itself to be a melting pot (albeit belatedly and after a lot of post-Civil War legislation and jurisprudence). What makes America great is the blend of people in it. And, because this nation is so large, there’s plenty of room for everyone and no non-bigot will ever claim the addition of migrants has somehow made us weaker.
ICE has always been awful. It’s been even worse recently, now that it knows no one in the administration will ever prevent it from being the racist throwback Trump clearly wishes it to be. It’s even bolder now that the Supreme Court — via Justice Kavanaugh’s shadow docket concurrence — said it’s ok to engage in racial profiling.
Racial profiling should be illegal. It isn’t. Among the many problems with racial profiling is that when you’re just looking for people with darker skin, you tend to do absurdly stupid shit like this:
The detention of at least five men in and around Minneapolis has sparked an outcry among Native American groups about Indigenous people being racially profiled as undocumented immigrants by federal immigration agents. Minneapolis is one of the largest urban centers for Native Americans in the United States.
When you’re rounding up Native Americans, you’re rounding up the people who have done the least amount of immigration ever. Anyone engaged in these arrests has migrated more times than the people they’re arresting. This — along with the recent murder of Minnesota native and US citizen Renee Good by ICE officer Jonathan Ross — should have been enough to make ICE tuck its tail between its legs and head off to a more receptive, red-coded locality.
It didn’t. And because ICE neither understands nor cares, it’s up to regular American citizens to point out the obvious:
“It is deeply offensive and ironic that the first people of this land would be subjected to questions around their citizenship,” Jacqueline De Leon, senior staff attorney at the nonprofit Native American Rights Fund and a member of the Isleta Pueblo. “Yet nevertheless, that is exactly what we’re seeing.”
You’d think someone at ICE might want to pull back and reassess the situation, especially now that seemingly the entirety of the city of Minneapolis is willing to hassle officers into abandoning the random roll-ups on darker skinned people they constantly claim are “targeted stops.”
If these truly were “targeted stops,” they wouldn’t have targeted people who have far more right to be here than the people detaining them. Jose Rodriguez, a 20-year-old Red Lake Nation descendant, was arrested by ICE in what ICE claims was a “high-risk immigration enforcement stop.” (The officers also claimed to have been “violently assaulted” by Rodriguez but, tellingly, no charges have been filed.)
This was followed up by the detaining of four unhoused tribal members by ICE officers, who found them sleeping under a bridge and decided this — combined with presumably darker-than-white skin tones — was all that was needed to justify some “papers please” hassling, immediately followed by detentions that, at press time (January 14) still hadn’t been ended. (One of the four was released prior to publishing.)
And it’s not like Native Americans didn’t see this coming. They read the Kavanaugh concurrence and saw what’s been happening all over this nation (but especially in “blue” states) and let their fellow Americans know that they should expect ICE to treat them like any other “brown” person officers come across:
A day before Ramirez’s stop, the Red Lake Tribal Council issued a Jan. 7 advisory about the Trump administration’s enforcement in Minnesota. “We all need to be extra careful, and we must assume that ICE will not protect us,” the advisory said.
It’s been obvious since the inception of this so-called “immigration enforcement” surge: anyone not white would be rounded up. The Supreme Court said this is all very cool and very lawful. And the surge in Minnesota is proving that being white is no protection either, not if you’re opposed to what this regime is doing. With threats of a military deployment to Minnesota looming, no American worth their citizenship should continue pretending this is anything more than white nationalism draping itself in executive power.
The Trump administration, for all intents and purposes, declared war on Chicago back in September. It was inevitable that Chicago and the state of Illinois would eventually be targeted by Trump, what with its Democratic leadership and Trump’s faux concerns about gun violence. Less than a month into his second presidential term, the administration sued the state and city of Chicago in hopes of forcing it to aid and abet Trump’s mass deportation programs.
The unofficial declaration of war (albeit one that specifically stated in an Truth Social that “Chicago about to find out why it’s called the Department of WAR”) was followed by even more extreme bullshit by the president: a call for the arrest of Illinois governor J.B. Pritzker and Chicago mayor Brandon Johnson for “failing to protect [ICE] officers.”
Meanwhile, ICE just kept losing. Its tactics in Chicago violated prior consent decrees, which led to judges freeing detainees almost as fast as ICE could detain them. On top of that, ICE, CBP, and an assortment of federal officers violated rights on a daily basis, resulting in even more rulings against the administration.
But all of these lower court rulings are pretty much meaningless if they’re just going to be overturned by the Trump’s ace in the hole: the fully compromised majority of the Supreme Court. The state sued the administration to block its commandeering of Illinois National Guard troops. The administration lost at the lower levels, prompting a review by the nation’s top court.
We can breathe a bit easier for the moment. SCOTUS says the administration can’t take control of the National Guard… at least not with the arguments it’s currently making. The government argued that its definition of the term “regular forces” in support of its National Guard takeover referred to “civilian law enforcement officers,” i.e., federal officers from ICE, CBP, Federal Protective Services, etc. The Supreme Court says the government is using the wrong definition. From the decision [PDF]:
We conclude that the term “regular forces” in §12406(3) likely refers to the regular forces of the United States military. This interpretation means that to call the Guard into active federal service under §12406(3), the President must be “unable” with the regular military “to execute the laws of the United States.”
Because the statute requires an assessment of the military’s ability to execute the laws, it likely applies only where the military could legally execute the laws. Such circumstances are exceptional: Under the Posse Comitatus Act, the military is prohibited from “execut[ing] the laws” “except in cases and under circumstances expressly authorized by the Constitution or Act of Congress.” 18 U. S. C. §1385. So before the President can federalize the Guard under §12406(3), he likely must have statutory or constitutional authority to execute the laws with the regular military and must be “unable” with those forces to perform that function.
The circumstances aren’t what the administration claims they are. And if they are getting close to meeting Trump’s exaggeration of anti-ICE protests, etc., then he has the obligation to bring this before Congress, rather than unilaterally declaring everything to be so completely out of control, he’s practically obligated to take control of local National Guard units.
Despite his constant blustering and endless social media rants, the administration has yet to justify this bold, unprecedented use of military force to help handle immigration enforcement.
At this preliminary stage, the Government has failed to identify a source of authority that would allow the military to execute the laws in Illinois. The President has not invoked a statute that provides an exception to the Posse Comitatus Act. Instead, he relies on inherent constitutional authority that, according to the Government, allows him to use the military to protect federal personnel and property. But the Government also claims—consistent with the longstanding view of the Executive Branch—that performing such protective functions does not constitute “execut[ing] the laws” within the meaning of the Posse Comitatus Act. If that is correct, it is hard to see how performing those functions could constitute “execut[ing] the laws” under §12406(3).
That means the injunction delivered by the Illinois federal court remains in place. The government is welcome to make other arguments at the lower level in hopes of getting this injunction lifted. But for now, Trump has lost at the highest level — and the one he most expected to have his back no matter what.
There are additional opinions attached to this very short majority ruling. The first is Justice Kavanaugh’s rather bitter concurrence. The most remarkable part of his addition to this ruling is a footnote that makes it pretty clear he’s chafing a bit after becoming part of the unofficial legal parlance. An earlier ruling of his said it was perfectly fine for federal officers to treat skin color or accented English as reasonable suspicion for a stop. The kind of stops ICE performs most frequently are now known as “Kavanaugh stops,” now that the Supreme Court (actually just Kavanaugh spouting off in the shadow docket) has determined “Terry stops” are too respectful of rights.
The State and the Government disagree about whether the immigration officers have violated the Constitution in making certain immigration stops and arrests. The basic constitutional rules governing that dispute are longstanding and clear: The Fourth Amendment requires that immigration stops must be based on reasonable suspicion of illegal presence, stops must be brief, arrests must be based on probable cause, and officers must not employ excessive force. Moreover, the officers must not make interior immigration stops or arrests based on race or ethnicity. Cf. Whren v. United States, 517 U. S. 806, 813 (1996) (“[T]he Constitution prohibits selective enforcement of the law based on considerations such as race”).
Hmm. That’s certainly not what he said just a couple of months earlier. Oh, and Kavanaugh thinks the majority goes too far in its narrow reading of the statue. He proposes a hypothetical that sure sounds a whole lot like what went down in DC on January 6, 2021:
Consider a hypothetical example. Suppose a mob rapidly gathers outside the U. S. Courthouse in Philadelphia in response to an unpopular decision (or to influence the outcome of a pending matter). Suppose also that the mob is threatening to storm the courthouse and attack the federal judges, prosecutors, and other personnel inside, and to damage or burn down the building, thereby preventing the execution of federal law. Suppose further that U. S. military forces cannot readily mobilize to deploy to the site in time, that the local police and federal court security officers are outnumbered, and that the President wants to federalize National Guard units to protect the courthouse and the judges, prosecutors, and other personnel. Under the Court’s order today, even in those circumstances the President presumably could not federalize the National Guard under §12406(3).
Come on, Brett. Don’t play dumb. The storming of a federal buildingalready happened and it was never a question of whether Trump could do anything about it, but rather a question of if he would do anything about it. We already have that answer, so this speculative theory only works when a president is more concerned about protecting people other than himself when the shit goes down. And if the administration reads between the lines of this hypothetical, it’s going to see a way to wash its hands of any responsibility if the next election results in the Democratic party taking back the Oval Office.
For now, the administration isn’t allowed to send National Guard units to Chicago. It has also already been blocked from doing so in Portland, Oregon. If Trump wants to use military troops to backstop his massively unpopular mass deportation efforts, he’s going to have to start declaring war on some “red” states, where he’s more likely to find state officials willing to deploy troops on his behalf. If he really wants this martial law thing to take off, he’s going to have to do it everywhere, rather than just in places run by people he doesn’t like.
It was just last month that Brett Kavanaugh gave his explanation for why it was perfectly okay for Homeland Security goons to profile brown people and detain them based on nothing more than the color of their skin. While his cowardly colleagues in the majority on that shadow docket decision refused to explain their thinking, Kavanaugh actually wrote a concurrence that was so out of touch with reality as to be embarrassing. But at least it was an explanation.
The key bit from him that has stood out is this:
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.
It’s this weird, privileged, out-of-touch statement that if ICE or CBP stop you for being brown, they’ll let you go as soon as you show them that you’re an American citizen. Of course, we knew at the time that wasn’t true. Hell, there were details that Kavanaugh ignored in that very lawsuit, which Justice Sotomayor called out in her dissent. But literally in this very lawsuit was the documentation of how it wasn’t so simple:
To give just one example,Plaintiff Jason Brian Gavidia is a U.S. citizen who was born and raised in East Los Angelesand identifies as Latino. On the afternoon of June 12, he stepped onto the sidewalk outside of a tow yard in Montebello, California, where he saw agents carrying handguns and military-style rifles. One agent ordered him to “Stop right there” while another “ran towards [him].”The agents repeatedly asked Gavidia whether he is American—and they repeatedly ignored his answer: “I am an American.”The agents asked Gavidia what hospital he was born in—and he explained that he did not know which hospital. “The agents forcefully pushed [Gavidia] up against the metal gated fence, put [his] hands behind [his] back, and twisted [his] arm.” An agent asked again, “What hospital were you born in?” Gavidia again explained that he did not know which hospital and said “East L.A.”He then told the agents he could show them his Real ID. The agents took Gavidia’s ID and his phone and kept his phone for 20 minutes. They never returned his ID.
Drexel law professor Anil Kalhan quickly dubbed these bullshit pretextual stops of US citizens as “Kavanaugh stops” and the name has stuck.
While there is an effort to challenge these further in court, for now the goon squad known as ICE is unleashed even more than usual. We now know that there are at least 170 US citizens who have been held by immigration officials, and there are probably even more not yet accounted for.
It feels like every day we hear about another few:
ICE violently detain father & son walking to school—teenage boy had to be rushed to hospital."I was just going to school," kid cries out. "I'm underage!"The 16-year-old star athlete is a U.S. citizen—agents sent him to the hospital with severe injuries to his back & neck.Houston, Texas.
These Kavanaugh stops are a stain on the American concept of civil liberties and due process, and they should be a stain on Brett Kavanaugh’s legacy. Legal journalist Chris Geidner just ran a piece on 50 days of Kavanaugh stops, and what a shameful moment this is of American bigotry.
Geidner has directly submitted questions to Kavanaugh to see how he feels about all of these Kavanaugh stops that show his claim of “brief encounters” with law enforcement were bullshit:
I asked Justice Kavanaugh on October 14, “Do you have any comment on the ICE stop of Maria Greeley, a U.S. citizen, who was reportedly stopped, ziptied, and told she didn’t ‘look like’ a ‘Greeley’ despite being a U.S. citizen?“
On both occasions, I also asked Kavanaugh whether he still thinks he was correct when he wrote that these stops are “typically brief” and that all of this is fine because “individuals may promptly go free after making clear to the immigration officers that they are U. S. citizens or otherwise legally in the United States.”
Finally, I asked Kavanaugh if he was aware of the “Kavanaugh stop” terminology and whether he had any comment on it.
[….]
So, I asked Justice Kavanaugh on October 16, “Do you have any comment on the Pro Publica report that found ‘more than 50 Americans who were held after [immigration] agents questioned their citizenship’ during 2025. ‘They were almost all Latino,’ per the report.“
In addition to the other questions previously raised, I also asked Kavanaugh whether “the possibility of after-the-fact ‘excessive force’ claims” is “a sufficient answer to this ongoing, regularly occurring problem?”
Did you guess what happened? Of course you did!
I have not received a response from him or his chambers.
You can already see the horrific legacy that is forming around the concept of Kavanaugh stops. This is a legacy that doesn’t go away easily. It’s like the Dred Scott decision, the Korematsu decision, or Buck v. Bell. Supreme Court decisions that nearly everyone now looks back on in horror.
These are all horrible, hateful decisions by out-of-touch bigots, who can’t even fathom a world in which those less fortunate themselves even matter, and thus their rights and dignity are barely given a second thought.
The Supreme Court still has a chance to fix this, since Kavanaugh stops were only defined by Justice Kavanaugh in a shadow docket concurrence. While those other cases all took decades for everyone to realize how fucked up they were, this one we can see in real time what a stain it is for anyone who believes that America respects basic civil liberties like due process and concepts like probable cause.
But, for now at least, that stain should stick to Brett Kavanaugh. He’s justified this. He’s insisted these kinds of stops are no big deal, even as there was evidence then, and even with more mounting evidence now, that immigration officials don’t give a shit if you are an American citizen. If you’re darker skinned, they can treat you like shit, lock you up, beat you up, ignore your protestations and even evidence of American citizenship.
It is a deep, dark stain on America as a supposed land of freedom, and it should be tied up with Brett Kavanaugh’s legacy forever.
When the Supreme Court recently allowed immigration agents in the Los Angeles area to take race into consideration during sweeps, Justice Brett Kavanaugh said that citizens shouldn’t be concerned.
“If the officers learn that the individual they stopped is a U.S. citizen or otherwise lawfully in the United States,” Kavanaugh wrote, “they promptly let the individual go.”
About two dozen Americans have said they were held for more than a day without being able to phone lawyers or loved ones.
Videos of U.S. citizens being mistreated by immigration agents have filled social media feeds, but there is little clarity on the overall picture. The government does not track how often immigration agents hold Americans.
So ProPublica created its own count.
We compiled and reviewed every case we could find of agents holding citizens against their will, whether during immigration raids or protests. While the tally is almost certainly incomplete, we found more than 170 such incidents during the first nine months of President Donald Trump’s second administration.
Among the citizens detained are nearly 20 children, including two with cancer. That includes four who were held for weeks with their undocumented mother and without access to the family’s attorney until a congresswoman intervened.
Immigration agents do have authority to detain Americans in limited circumstances. Agents can hold people whom they reasonably suspect are in the country illegally. We found more than 50 Americans who were held after agents questioned their citizenship. They were almost all Latino.
Immigration agents also can arrest citizens who allegedly interfered with or assaulted officers. We compiled cases of about 130 Americans, including a dozen elected officials, accused of assaulting or impeding officers.
These cases have often wilted under scrutiny. In nearly 50 instances that we have identified so far, charges have never been filed or the cases were dismissed. Our count found a handful of citizens have pleaded guilty, mostly to misdemeanors.
Among the detentions in which allegations have not stuck, masked agents pointed a gun at, pepper sprayed and punched a young man who had filmed them searching for his relative. In another, agents knocked over and then tackled a 79-year-old car wash owner, pressing their knees into his neck and back. His lawyer said he was held for 12 hours and wasn’t given medical attention despite having broken ribs in the incident and having recently had heart surgery. In a third case, agents grabbed and handcuffed a woman on her way to work who was caught up in a chaotic raid on street vendors. In a complaint filed against the government, she described being held for more than two days, without being allowed to contact the outside world for much of that time. (The Supreme Court has ruled that two days is generally the longest federal officials can hold Americans without charges.)
In response to questions from ProPublica, the Department of Homeland Security said agents do not racially profile or target Americans. “We don’t arrest US citizens for immigration enforcement,” wrote spokesperson Tricia McLaughlin.
A top immigration official recently acknowledged agents do consider someone’s looks. “How do they look compared to, say, you?” Border Patrol chief Gregory Bovino said to a white reporter in Chicago.
The White House told ProPublica that anyone who assaults federal immigration agents would be prosecuted. “Interfering with law enforcement and assaulting law enforcement is a crime and anyone, regardless of immigration status, will be held accountable,” said the Deputy Press Secretary Abigail Jackson. “Officers act heroically to enforce the law, arrest criminal illegal aliens, and protect American communities with the utmost professionalism.”
A spokesperson for Kavanaugh did not return an emailed request for comment.
Tallying the number of Americans detained by immigration agents is inherently messy and incomplete. The government has long ignored recommendations for it to track such cases, even as the U.S. has a history of detaining and even deporting citizens, including during the Obama administration and Trump’s first term.
We compiled cases by sifting through both English- and Spanish-language social media, lawsuits, court records and local media reports. We did not include arrests of protesters by local police or the National Guard. Nor did we count cases in which arrests were made at a later date after a judicial process. That included cases of some people charged with serious crimes, like throwing rocks or tossing a flare to start a fire.
Experts say that Americans appear to be getting picked up more now as a result of the government doing something that it hasn’t for decades: large-scale immigration sweeps across the country, often in communities that do not want them.
In earlier administrations, deportation agents used intelligence to target specific individuals, said Scott Shuchart, a top immigration official in the Biden, Obama and first Trump administrations. “The new idea is to use those resources unintelligently” — with officers targeting communities or workplaces where undocumented immigrants may be.
When federal officers roll through communities in the way the Supreme Court permitted, the constitutional rights of both citizens and noncitizens are inevitably violated, argued David Bier, the director of immigration studies at the libertarian Cato Institute. He recently analyzed how sweeps in Los Angeles have led to racial profiling. “If the government can grab someone because he’s a certain demographic group that’s correlated with some offense category, then they can do that in any context.”
Cody Wofsy, an attorney at the American Civil Liberties Union, put it even more starkly. “Any one of us could be next.”
When Kavanaugh issued his opinion that immigration agents can consider race and other factors, the Supreme Court’s three liberal justices strongly dissented. They warned that citizens risked being “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.”
Leonardo Garcia Venegas appears to have been just such a case. He was working at a construction site in coastal Alabama when he saw masked immigration agents from Homeland Security Investigations hop a fence and run by a “No trespassing” sign. Garcia Venegas recalled that they moved toward the Latino workers, ignoring the white and Black workers.
Garcia Venegas began filming after his undocumented brother asked agents for a warrant. In response, the footage shows, agents yanked his brother to the ground, shoving his face into wet concrete. Garcia Venegas kept filming until officers grabbed him too and knocked his phone to the ground.
Other co-workers filmed what happened next, as immigration agents twisted the 25-year-old’s arms. They repeatedly tried to take him to the ground while he yelled, “I’m a citizen!”
Officers pulled out his REAL ID, which Alabama only issues to those legally in the U.S. But the agents dismissed it as fake. Officers held Garcia Venegas handcuffed for more than an hour. His brother was later deported.
Garcia Venegas was so shaken that he took two weeks off of work. Soon after he returned, he was working alone inside a nearly built house listening to music on his headphones when he sensed someone watching him. A masked immigration agent was standing in the bedroom doorway.
This time, agents didn’t tackle him. But they again dismissed his REAL ID. And then they held him to check his citizenship. Garcia Venegas says agents also held two other workers who had legal status.
DHS did not respond to ProPublica’s questions about Garcia Venegas’ detentions, or to a federal lawsuit he filed last month. The agency has previously defended the agents’ conduct, saying he “physically got in between agents and the subject” during the first incident. The footage does not show that, and Garcia Venegas was never charged with obstruction or any other crime.
Garcia Venegas’ lawyers at the nonprofit Institute for Justice hope others may join his suit. After all, the reverberations of the immigration sweeps are being felt widely. Garcia Venegas said he knows of 15 more raids on nearby construction sites, and the industry along his portion of the Gulf Coast is struggling for lack of workers.
Kavanaugh’s assurances hold little weight for Garcia Venegas. He’s a U.S. citizen of Mexican descent, who speaks little English and works in construction. Even with his REAL ID and Social Security card in his wallet, Garcia Venegas worries that immigration agents will keep harassing him.
“If they decide they want to detain you,” he said. “You’re not going to get out of it.”
George Retes was among the citizens arrested despite immigration agents appearing to know his legal status. He also disappeared into the system for days without being able to contact anyone on the outside.
The only clue Retes’ family had at first was a brief call he managed to make on his Apple Watch with his hands handcuffed behind his back. He quickly told his wife that “ICE” had arrested him during a massive raid and protest on the marijuana farm where he worked as a security guard.
Still, Retes’ family couldn’t find him. They called every law enforcement agency they could think of. No one gave them any answers.
Eventually, they spotted a TikTok video showing Retes driving to work and slowly trying to back up as he’s caught between agents and protestors. Through the tear gas and dust, his family recognized Retes’ car and the veteran decal on his window. The full video shows a man — Retes — splayed on the ground surrounded by agents.
Retes’ family went to the farm, where local TV reporters were interviewing families who couldn’t find their loved ones.
“They broke his window, they pepper sprayed him, they grabbed him, threw him on the floor,” his sister told a reporter between sobs. “We don’t know what to do. We’re just asking to let my brother go. He didn’t do anything wrong. He’s a veteran, disabled citizen. It says it on his car.”
Retes was held for three days without being given an opportunity to make a call. His family only learned where he had been after his release. His leg had been cut from the broken glass, Retes told ProPublica, and lingering pepper spray burned his hands. He tried to soothe them by filling sandwich bags with water.
Retes recalled that agents knew he was a citizen. “They didn’t care.” He said one DHS official laughed at him, saying he shouldn’t have come to work that day. “They still sent me away to jail.” He added that cases like his show Kavanaugh was “wrong completely.”
DHS did not answer our questions about Retes. It did respond on X after Retes wrote an op-ed last month in the San Francisco Chronicle. An agency post asserted he was arrested for assault after he “became violent and refused to comply with law enforcement.” Yet Retes had been released without any charges. Indeed, he says he was never told why he was arrested.
The Department of Justice has encouraged agents to arrest anyone interfering with immigration operations, twiceordering law enforcement to prioritize cases of those suspected of obstructing, interfering with or assaulting immigration officials.
But the government’s claims in those cases have often not been borne out.
Daniel Montenegro was filming a raid at a Van Nuys, California, Home Depot with other day-laborer advocates this summer when, he told ProPublica, he was tackled by several officers who injured his back.
Bovino, the Border Patrol chief who oversaw the LA raids and has since taken similar operations to cities like Sacramento and Chicago, tweeted out the names and photos of Montenegro and three others, accusing them of using homemade tire spikes to disable vehicles.
“I had no idea where that story came from,” Montenegro told ProPublica. “I didn’t find out until we were released. People were like, ‘We saw you on Twitter and the news and you guys are terrorists, you were planning to slash tires.’ I never saw those spike tire-popper things.”
Officials have not charged Montenegro or the others with any crimes. (Bovino did not respond to a request for comment, while DHS defended him in a statement to ProPublica: “Chief Bovino’s success in getting the worst of the worst out of the country speaks for itself.”)
The government’s cases are sometimes so muddied that it’s unclear why agents actually arrested a citizen.
Andrea Velez was charged with assaulting an officer after she was accidentally dropped off for work during a raid on street vendors in downtown Los Angeles. She said in a federal complaint that officers repeatedly assumed she did not speak English. Federal officers later requested access to her phone in an attempt to prove she was colluding with another citizen arrested that day, who was charged with assault. She was one of the Americans held for more than two days.
DHS did not respond to our questions about Velez, but it has previously accused her of assaulting an officer. A federal judge has dismissed the charges.
Other citizens also said officers accused them of crimes and suddenly questioned their citizenship — including a man arrested after filming Border Patrol agents break a truck window, and a pregnant woman who tried to stop officers from taking her boyfriend.
“The often-inadequate guardrails that we have for state and local government — even those guardrails are nonexistent when you’re talking about federal overreach,” said Joanna Schwartz, a professor at UCLA School of Law.
More than 50 members of Congress have also written to the administration, demanding details about Americans who’ve been detained. One is Sen. Alex Padilla, a California Democrat. After trying to question Noem about detained citizens, federal agents grabbed Padilla, pulled him to the ground and handcuffed him. The department later defended the agents, saying they “acted appropriately.”
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, evenwhen 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.
