Appeals Court Affirms ICE Can’t Arrest People Just For Looking Latino; ICE Immediately Ignores Ruling

Legal Issues

from the rogue-agency dept

Three weeks ago, California federal court judge Maame E. Frimpong issued an order blocking ICE from pretending looking a bit foreign was reasonably suspicious enough to justify stops, much less the mass arrests ICE officers have been carrying out regularly in the Los Angeles area.

The opinion had to spell out things that should have been immediately clear to ICE (or, indeed, any law enforcement agency, federal or local), like:

[T]he Court considers whether speaking Spanish or speaking English with an accent could give rise to reasonable suspicion. There is no case law that supports that it could.

And:

[A]t least one news article reports that people were dragged out of bathrooms at a swap meet, which makes Defendants’ arguments that their stops and arrests are consensual unpersuasive.

The resulting restraining order forbade ICE from doing its usual ICE stuff, at least in the seven California counties overseen by this court.

Defendants may not rely solely on the factors below, alone or in combination, to form reasonable suspicion for a detentive stop, except as permitted by law:

i. Apparent race or ethnicity;
ii. Speaking Spanish or speaking English with an accent;
iii. Presence at a particular location (e.g. bus stop, car wash, tow yard, day laborer pick up site, agricultural site, etc.) or;
iv. The type of work one does.

All of this was obviously unconstitutional. And all of this was the sort of thing ICE wanted to continue doing, especially since Trump and his administration officials were setting the floor at 3,000 arrests per day and stating this was the minimum expected of federal law enforcement officers, but especially those working for ICE.

The government appealed. But it fared no better during the second review of its racist actions. The Ninth Circuit Appeals Court ruled on August 1 that the restraining order blocking ICE’s “round up all the Mexicans!” efforts could remain in place. (h/t FourthAmendment.com)

As the ruling [PDF] points out, there’s plenty to indicate ICE’s actions aren’t supported by anything any reasonable person would consider to be reasonable suspicion. This citation may be anecdotal, but it’s one of several similar supporting statements made by those suing the government to force it to play by the constitutional rules:

To give just one example, Plaintiff Jason Brian Gavidia is a U.S. citizen who was born and raised in East Los Angeles and 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.

There’s plenty of reporting out there that backs up this single example of, apparently, many the Appeals Court could have cited. ICE officers are demanding identification and proof of citizenship (already incredibly problematic) from random (but always non-white) people and then ignoring the provided documents in order to move forward with a detention or arrest.

The court also notes it appears ICE is trying to meet a 3,000 arrests per day quota — another thing law enforcement agencies are pretty much universally not allowed to do. The DOJ’s lawyers, of course, claim no such quota exists:

In response to the Court’s inquiry at oral argument, DHS has confirmed that neither ICE leadership nor its field offices have been directed to meet any numerical quota or target for arrests, detentions, removals, field encounters, or any other operational activities that ICE or its components undertake in the course of enforcing federal immigration law.

Plaintiffs’ allegation that the government maintains a policy mandating 3,000 arrests per day appears to originate from media reports quoting a White House advisor who described that figure as a “goal” that the Administration was “looking to set.” That quotation may have been accurate, but no such goal has been set as a matter of policy, and no such directive has been issued to or by DHS or ICE.

I’m sure this is all very true. But it’s all equally as meaningless. Of course, no written policies or directives exist. Putting it on paper or incorporating it into existing polices would put ICE on the wrong side of the law as far as arrest quotas are concerned. That’s why none of these documents exist. But that doesn’t mean the expectation doesn’t exist and that ICE officials aren’t doing everything they can (short of leaving a paper trail) to push officers to meet this “goal.” Even if the paperwork doesn’t exist, the pressure and perverted incentives do. And that just makes Stephen Miller the only bigoted idiot stupid enough to say this sort of thing in public, when he just could have limited it to internal verbal communications with ICE and DHS officials.

But whatever, the end result is the same: the plaintiffs have shown enough evidence to support their claim that ICE is violating the Constitution by pretending having brown skin and (perhaps) an accent is all the legal justification it needs to detain or arrest people en masse.

That ruling was released August 1st. This is what happened one day later in one of the counties covered by two consecutive federal court rulings, as highlighted here in this Simple Justice post:

I’ll describe the video briefly, just in case you can’t see the embed or chose not to watch it. On August 2, while an existing restraining order was in place (issued July 14 and affirmed August 1), ICE agents wearing masks and camo drove a Penske rental truck into a Home Deport parking lot. Once parked, the back of the rental truck was opened and ICE officers poured into the parking lot and then moved outward to the surrounding neighborhood, grabbing anyone looking vaguely Hispanic. All of this was captured on video by onlookers.

As Scott Greenfield notes in his post, this certainly appears to be what it is: a direct violation of the restraining order that was upheld by the Ninth Circuit a day before this happened:

If you call the Home Depot parking lot “targeted,” then it was a targeted raid. Otherwise, it was just a roundup of random Hispanics without any basis to believe they were “illegal” other than the fact that they appeared Hispanic and were in the Home Depot parking lot. This was exactly what Judge Frimpong found to be unconstitutional racial profiling.

So, if you need another depressing data point about this administration, you can add this one: yet another example of federal government agencies ignoring court orders and practically daring the courts, Congressional reps, voters, and even the people who claim the Second Amendment protects the rest of the Constitution to do anything about it. So far, the courts are on their own, and it’s becoming increasingly obvious that holding the government in contempt is about as useless as issuing “strongly worded” memos. (And, of course, the government has already asked for an “emergency” review of this restraining order from Trump’s robed enablers…)

The repeated violation of court orders may give some plaintiffs a clearer road to victory in individual civil rights lawsuits, but it’s doing almost nothing to assure Americans that the current government won’t just pave over our rights and put up an M1 Abrams parking lot.

Filed Under: 4th amendment, 5th amendment, 9th circuit, biased policing, california, dhs, ice, mass deportation, racism, trump administration