Supreme Court allows federal officers to more freely make immigration stops in LA

The Supreme Court on Monday paused a ruling by a federal judge in Los Angeles that imposed restrictions on the ability of federal agents to make immigration stops that the plaintiffs say are based on racial profiling. The order by U.S. District Judge Maame Ewusi-Mensah Frimpong barred agents in the Central District of California – an area with a population of approximately 20 million people – from making such stops without reasonable suspicion that the person being stopped is in the United States illegally. Reasonable suspicion, Frimpong added, cannot rest solely on any combination of four factors: “apparent race or ethnicity,” speaking in Spanish or accented English, being present at a location where undocumented immigrants “are known to gather” (such as pick-up spots for day laborers), and working at specific jobs, such as landscaping or construction.

Monday’s order by the Supreme Court puts Frimpong’s ruling on hold while the Trump administration’s appeals continue. In an opinion agreeing with the decision to grant the government’s request for a stay, Justice Brett Kavanaugh emphasized what he characterized as the narrow role of judges in immigration cases. Judges, he wrote, “may have views on which policy approach is better or fairer. But judges are not appointed to make those policy calls. We merely ensure,” he stressed, “that the Executive Branch acts within the confines of the Constitution and federal statutes.”

Justice Sonia Sotomayor dissented from Monday’s ruling, in a 21-page opinion joined by Justices Elena Kagan and Ketanji Brown Jackson. Sotomayor described the court’s action as “yet another grave misuse of our emergency docket. We should not have to live in a country,” she wrote, “where the Government can seize anyone who looks Latino, speaks Spanish, and appears to work a low wage job. Rather than stand idly by while our constitutional freedoms are lost,” she concluded, “I dissent.”

The case stems from federal immigration raids that began in the Los Angeles area in June as part of what some government officials have called the “largest Mass Deportation Operation” in U.S. history. Describing the government’s actions as creating “an illegal detention and deportation dragnet,” a group that includes both U.S. citizens and undocumented immigrants who had been targeted by the raids went to federal court the following month. They contended, among other things, that the raids violated the Fourth Amendment’s ban on “unreasonable searches and seizures,” which the Supreme Court has held generally prohibits immigration officials from stopping someone in public unless they have reasonable suspicion that the person being stopped has violated federal law or immigration law. That reasonable suspicion, the challengers contended in their complaint, must be based on “specific articulable facts,” rather than “broad profiles which cast suspicion on entire categories of people.”

Frimpong issued an order on July 11 that prohibited government agents from making immigration stops unless they had reasonable suspicion that the person they were stopping was an undocumented immigrant, and from relying on any or all of the four factors as the basis for reasonable suspicion.

After the U.S. Court of Appeals for the 9th Circuit largely left Frimpong’s order in place while litigation continued, U.S. Solicitor General D. John Sauer came to the Supreme Court on Aug. 7, asking the justices to step in. Sauer contended that the order puts “a straitjacket on law-enforcement efforts.” And in any event, he added, the challengers lack a legal right to sue, known as standing, because they do not have any reason to believe that they will be stopped by federal immigration agents in the future.

Lawyers for the challengers pushed back, telling the justices on Aug. 12 that if they did not have a right to sue, the government “could send out roving groups of agents every night to engage in raids all over any city, involving the most blatantly unconstitutional invasions of law-abiding individuals’ privacy imaginable, and it would be impossible to enjoin that behavior because no plaintiff could definitively prove that he would be caught up in a future raid that would—like the ones before it—violate the Constitution.” They also stressed that Frimpong’s order was only a temporary one, which the justices would likely never have a chance to review on the merits.

In a concurrence, Kavanaugh explained that the Trump administration had met both of the “most critical” factors that the court considers in deciding whether to grant temporary relief. First, he explained, “given the significance of the issue to the Government’s immigration enforcement efforts,” the Supreme Court would be likely to grant review if the 9th Circuit were to uphold Frimpong’s injunction.

Second, Kavanaugh continued, the Trump administration has shown not only that the Supreme Court would be likely to grant review, but also that it would be likely to reverse the lower court’s ruling in the challengers’ favor. The challengers likely lack a legal right to sue, known as standing, Kavanaugh wrote, because although they may have been stopped in the past, they “have no good basis to believe that law enforcement will unlawfully stop them in the future based on the prohibited factors” in Frimpong’s injunction.

Moreover, Kavanaugh added, although “apparent ethnicity alone cannot furnish reasonable suspicion” for an immigration stop, reasonable suspicion can rest on the “totality of the circumstances.” Here, he stressed, circumstances such as the “extremely high number and percentage of illegal immigrants in the Los Angeles area,” the fact that undocumented immigrants often “gather in certain locations to seek daily work” and “often work in certain kinds of jobs, such as day labor, landscaping, agriculture, and construction,” and “that many of those illegally in the Los Angeles area come from Mexico or Central America and do not speak much English” can, when “taken together,” “constitute at least reasonable suspicion of illegal presence in the United States.”

In her dissent, Sotomayor argued that the Trump administration, “and now the concurrence” by Kavanaugh, “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.”

In Sotomayor’s view, the Trump administration had not shown that it was ultimately likely to prevail on the merits. In particular, she wrote, “a set of facts cannot constitute reasonable suspicion if it ‘describes a very large category of presumably innocent’ people.” “Allowing the seizure,” she said, “of any Latino speaking Spanish at a car wash in Los Angles tramples the constitutional requirement that officers ‘must have a particularized and objective basis for suspecting the particular person stopped of criminal activity.’”