The Supreme Court this week overturned a federal judge’s order prohibiting ICE agents in Los Angeles from stopping people and questioning them about their immigration status based solely on factors like their ethnicity, their appearance, their language or accents and their places of work. If this isn’t “racial profiling,” which courts have found to be a breach of the 4th Amendment prohibition on unreasonable searches an seizures, it sure is awfully close.
The 6-3 decision wasn’t signed and had no majority opinion. Justice Sotomayor, predictably (joined by the two other progressive women on the court) said in her typical dissent that “We should not have to live in a country where the Government can seize anyone who looks Latino, speaks Spanish, and appears to work a low wage job.” And…
” After today, that may no longer be true for 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. Because this is unconscionably irreconcilable with our nation’s constitutional guarantees, I dissent.”
I don’t want to live in a country where one political party deliberately opens the metaphorical floodgates to allow illegal immigrants to invade communities and job markets while law enforcment is banned from making reasonable calculations to greatly assist in their removal, even when the odds are strong that an individual with sufficient boxes checked is overwhelming likely to be here illicitly.
Justice Brett M. Kavanaugh, in his 10-page concurring decision, argued that the ICE tactics are not likely to violate the Fourth Amendment. He said that agents must be allowed to rely on their experience in dealing with the serious problem that millions of foreign people are unlawfully living in the United States. “As for stops of those individuals who are legally in the country, the questioning in those circumstances is typically brief, and those 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,” he wrote.
Your Ethics Alarms Ethics Quiz of the Day is….
Ethics Alarms 
When Rosie O’Donnell was saner, she handled racial profiling complaints of Arabs in the United States post-911 by saying that if the terrorist attacks had been made by short, fat Irish women, she would fully understand and expect to be questioned now and then.
Of course it is. Imagine Gotham city for a moment. Joker has escaped Arkham again, and there’s a massive crime wave being committed by criminals dressed as clowns. Would it be unreasonable for the GPD to detain and question people wandering around in clown makeup? People have a right to wear what they like, right?
Of course, the GPD would probably argue that was a legit argument, and choose not to bother anyone, even if they were dressed as clowns. Which is why they have Batman. We don’t have a vigilante, we have a billionaire who decided to try and fix things a better way. What a shame that Gotham likes Batman far better than the US likes Trump!
There’s a reason BOLOs are accompanied by a description.
”Is allowing Ice to focus on people who look, sound, and work like Illegal immigrants justifiable from a utilitarian perspective?”
Yes . Brief investigative detentions for investigative purposes, based on reasonable suspicion, have long been allowed by the courts. I see no substantial difference in ICE stops to identify illegal aliens.
I wish that illegal immigration was such an infrequent and minor problem that I COULD, in good conscience, consider such investigative stops as unnecessary and excessive. I do not.
Jim,
This is a concise, well-reasoned response.
We see this kind of law-enforcement tactic used everywhere…and I believe you have a history in law enforcement. As an example, police officers watch high-crime areas very closely, and they look for reasons to stop people/cars traveling in and around there. A non-functioning tail- or license-plate light, not using turn signals, a wee bit late through a yellow that turns red…heck, even a right turn into the left lane rather than the right lane. All of these are extremely minor road infractions – most of which wouldn’t get a citizen in 99.5% of the country stopped, but these are, as you wrote, “brief investigative detentions for investigative purposes, based on reasonable suspicion”. And as it’s often said, “little things sometimes lead to big things.”
When officers are told a crime suspect is a white man in his mid 20’s wearing a hat and a red shirt and dark pants, those officers WILL profile. They don’t look at black grandmothers with canes, and it’s very possible that a 35-year-old with a red shirt and dark pants will get stopped and questioned, even if he had nothing to do with the crime in question. Law enforcement is largely “profiling people” based on characteristics…it will be the same for ICE.
Anyways, I would be happy if ICE agents – in the interest of complete fairness – stopped EVERY citizen (including me) and asked to see an ID. But given the agent-to-citizen ratio, that just isn’t possible, so what they’re doing is acceptable, even if it’s not popular.
I should note that language, accent, and occupation are not “races”, and the notion that one ought not to even suspect someone of being a foreigner by virtue of their accent or the language they speak is so astonishingly wrong-headed that it boggles the imagination.
If you were to travel back in time even 50 years, I wonder if you could find anyone on the street who would believe you even meant the proposition seriously?
Justice Kavanaugh’s concurring opinion makes a lot of sense. I was a Spanish major (& grad student in Spanish) in college, and if law enforcement overheard me absent-mindedly singing all the songs we performed in the Spanish glee club at college (probably while waiting in a huge line, and wondering where I and my aching back could sit down), I wouldn’t be surprised to be questioned — briefly. I’m sure ICE would quickly figure out that I may be multilingual, but I’m still a ciudadana estadounidense (U.S. citizen).
I was once questioned by Immigration in Miami because my name is Alicia. They came to my place of employment to question an Alicia Rodriguez. My last name is not, nor has it ever been, Rodriguez – but there we were, enjoying a laugh when they met a blonde, blue eyed woman who informed them that she was very definitely born in Fargo, ND. It still makes me chuckle. At no time was I ever offended.
I earned my BA in Spanish at Concordia College, across the river from your birthplace in Moorhead, Minnesota. The Cobbers would be in trouble if ICE ever started looking for crazy Vikings, as Concordia was founded by Norwegian-Americans and is quite proud of it!
I’m just across the St. Croix in Packer land. Don’t know when you were at Concordia, but Xavier Herrera taught Spanish there from roughly 83-87. Any chance you were there at the same time?
Yes
here is my problem with the opinion: based SOLELY on FOUR independent factors.
does not compute.
-Jut
My disagreement here can be summed up in two words:
“Papers, please.”
Two of these four characteristics are innate and immutable. One is very nearly so (accent). The last (your job), while capable of being changed, has no causal relationship to being here illegally nor, I expect, does it even have any correlation to being here illegally at a nationwide level.
The only way I’m okay with this is if there is a known suspected lawbreaker and ICE (or any law enforcement) has a description of the particular lawbreaker. If someone matches that description, then sure: stop and briefly question someone who matches the description. (I think Alicia’s anecdote lands here neatly.)
Anything else is ripe for abuse, and the potential for abuse (not to mention the positive existence of it) is the reason we don’t allow it. If an ICE agent just happens to see someone who fits this profile, I think it is absolutely a 4A violation to detain that person for maybe being in the country illegally.
Yes, this makes the job of law enforcement harder and yes it makes our country a little less safe. That stipulated, I think Ben Franklin had something very important to say about liberty and safety, and I agree with him.
–Dwayne
I go out of my way to overtly cooperate with law enforcement agents. In our county in the deepest part of the south, we have an overall exceedingly professional force. Giving them honor, benefit of the doubt and overflowing cooperation has always been met with appreciation for making their day easier. I can only imagine that if all of the law abiding citizens welcomed the feds by willingly demonstrating legitimate presence in the country then we could make quick work of immigration enforcement…. If a fed stops me then I have to decide if I will cooperate. But if I am prepared ahead of time to offer proof, then this changes the balance. The question is if I see my relationship to the feds as an antagonistic one. I do not if it doesn’t involve taxes or property siezure. It is no longer the federal authority threatening to encroach, but rather me willingly prepared to display my citizenship. “Papers please” sure. Once immigration is taken seriously, immigrants send word back to home countries that immigration is taken seriously and the problem is largely solved.
“We should not have to live in a country where the Government can seize a black guy stepping out of a subway car with a bloody knife in his hand.”
…and the mic hits the floor…
It makes me uneasy that citizens have to carry any other form of identification with them other than their drivers license when driving. The reasons is that citizens are free, and not controlled subjects; they should not have to prove their legitimacy to the government.
An immigrant should always carry proof of immigration status with him; this is by law.
CVB
I don’t think citizens are affected by this ruling. At issue was are ICE officers precluded from using common features of nationalities known to be in this country illegally as a predicate to question them. The fact is a law enforcement officer has the right to ask anyone anything. Citizens are free to not engage if they wish.
I would bet that if an ICE officer asked a question in a language thought to be the person’s native tongue and the individual responded in reasonable English that would probably be enough to satisfy the ICE officer that there is nothing to see here.
How would a citizen NOT be affected by this ruling?No one is rolling around with ready means to prove their citizenship, meaning if you get detained on suspicion of possibly being an illegal immigrant, how do you hope to get yourself out of the mess easily?
If ICE were questioning everyone in the World Music section of a music store (someplace I can easily imagine myself shopping in on vacation, or even on a weekend road trip), I just checked my wallet to see what I have there which might serve as proof of citizenship. Besides my driver’s license and voter registration card, among the family snapshots in the photo section there is one photo of my baptism at the base chapel on Midway Island in 1958, with my dad and godfather in their Navy uniforms. Not quite as official as carrying around my birth certificate with me, but it might suffice. (And I’d be happy to advise ICE as to where they could get copies of my birth certificate, marriage license or whatever other documents they might be looking for.)
Driver’s license isn’t sufficient. Some states issue regardless of citizenship.
It’s sounding like I’m quite a few states they aren’t very discerning about who receives voter registration either. But I don’t know many people who roll around with that.
Photos definitely don’t suffice.
The problem with absolutes like “no one” is that a very few counter examples disprove your premise.
I do carry proof of citizenship in my wallet. It isn’t for ICE. My dysfunctional blue state has made it extraordinarily difficult to actually get my real ID compliant driver’s license. For that reason, I keep my global entry card in my wallet. I use it for ID for domestic air travel. It is federally issued and accepted. Global entry just so happens to also be proof of citizenship.
When I was regularly visiting Canada, I also had a US passport card. They’re common for residents living near Canada or Mexico. Since I stopped regularly visiting, I opted not to renew my card when my passport expired.
I was surprised Justice Kagan wrote the majority opinion. This decision, though, simply vacates a district court injunction against ICE officers using tools at hand to determine someone’s immigration status. I, living in Texas for some 40 years now, still have to prove that Ohio is a state and state in the United States of America. I am not sure why, but . . .
jvb
Under the Immigration and Nationality Act all Green Card holders are required to carry their registration card at all times so the “papers please” argument carries little weight with me. However, citizens do not possess such documents and can therefore not be provide when requested. This creates the potential for abuse as Dwayne above points out. There is no issue with a law enforcement officer engaging anyone. The individual does not need to respond but not responding at all – just to be difficult or prove ones point that they can – will cause the officer to take notice and begin developing his or her own theories as to the lack of willingness to engage.
Nonetheless, a person who cannot speak the language is sufficient to probe further given that being able to speak the language is required to pass the citizenship test or it would be what the person was exposed to primarily at birth short of having the child never to interact with anyone speaking English for years.
My issue with Sotomayor is that she focused on Latinos as if they are the only ones that would be scrutinized. I would suspect that persons from Asia, the Caribbean, Africa and even Europe who cannot speak the language could be targets of ICE. As such, we cannot make the argument that it is racial profiling. I will concede that the majority of the mass influx of illegal migrants are from Central and South America and they are relatively easy to focus on but that does not give them a pass.
If your job is to ferret out those who are in the country illegally and a significant portion of them have a particular immutable characteristic denying law enforcement the opportunity to question someone because of that characteristic is allowing the law breaker to flout the law. It is giving illegal immigrant a metaphorical permanent mask that prevents identification. With that said, other characteristics must be employed before any detainment takes place – not speaking English very well is sufficient to investigate further if they cannot produce their Green Card or other registration document they are required to carry.
I would be more sympathetic to Dwayne’s arguments above if the mass illegal migration of persons that has undermined our legitimate electoral processes by distorting census data that is used for apportionment of representatives was not caused by the very people who scream the loudest when you try to correct the problem.
We need to be careful with the language / accent argument. Puerto Ricans are US citizens, but not all of them speak English. They speak Spanish at Puerto Rico. Some naturalized citizens speak with very strong foreign accents, including Henry Kissinger and Arnold Schwarzenegger. And some of those who are illegal speak English very well.
I am sympathetic to Dwayne’s argument here. A LEO needs to have a valid reason or pretext to stop anybody. This may be an actual violation of the law, or behavior that indicates a violation (e.g. a driving style typical for DEI), but they cannot just stop anybody to do a search, or check papers. I hate read about a recently naturalized citizen being put in detention because all he had with him was his driver’s license. I do not like to live in a police state where encounters with LEO become frequent.
I am also concerned about the government doing stuff based on good intentions. After 2001 the Patriot Act became law. During the Biden administration these laws were used by the FBI against parents who spoke out at schoolboards against transgenderism and DEI. MAGA folks were reclassified as domestic terrorists.
The lesson of all this is that the USA should be very careful in securing our rights, and resist the temptation to infringe on these to pursue laudable policies.
I was going to argue with your reasoning, until I read a story at The Blaze this morning about the FBI questioning members of a private Catholic group chat about remarks made about a closed Catholic church building being converted to a mosque. My husband is the main contributor to a Catholic blog, and I’m sure the combox contributors can be quite opinionated at times. Might the Feds start targeting commenters on my husband’s blog posts, or bloggers such as my husband?
“(e.g. a driving style typical for DEI)”
OK, that’s hilarious, though I guess I have to assume it’s a typo?
I find it odd that Justice Sotomayor appeared on Steven Colbert’s show to talk about her dissent:
https://www.threads.com/@davidschwartzny/post/DObcg3LEVrU/media?xmt=AQF0UkspPDuJRtZ2gmL-8fIV0yFwSDQw04sUlMwhNOKoXiw
jvb
Not odd for a partisan, unprofessional hack, which is what she is.
This isn’t very complicated. ” If it looks like a duck, and quacks like a duck….”
To head north on I 19 from our house in southern Arizona, we have to drive through a permanent INS checkpoint. Tell me the BP guys don’t profile drivers. Every Hispanic filled shuttle heading north from Nogales (the border) to Tucson and points beyond is automatically sent over to the staging area and every passenger’s visa status is checked.