There’s a New Lawsuit Against “Kavanaugh Stops.” It’s Absolutely Devastating.

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Gregory Bovino, the officer in charge of roving immigration enforcement in American cities, admitted this week that his agents arrest people based on “how they look.” Asked by a WBEZ reporter^[2] to elaborate, Bovino said the pertinent question was how “they” appear as “compared to” the reporter, a white man. Bovino’s candor stripped away any pretense: Immigration and Customs Enforcement agents are detaining individuals because they look Latino.

Three weeks ago, the Supreme Court greenlit that approach, effectively legalizing racial profiling^[3] in immigration enforcement by a 6–3 vote^[4]. Although the majority did not explain its decision, Justice Brett Kavanaugh tried to muster a defense^[5] in a solo concurrence whose reasoning crumbled upon scrutiny^[6]. Kavanaugh insisted that ICE agents may use a person’s “apparent ethnicity” as a “relevant factor” when deciding whether to arrest them. But he assured readers that agents may use ethnicity only in combination with other, nonracial factors when deciding whom to target. He also insisted that these “immigration stops” are a minor inconvenience for “those individuals who are legally in the country,” writing: “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.”

In the short time since Kavanaugh wrote that opinion, his assertions have been proved demonstrably, almost laughably false too many times to count. As Sherrilyn Ifill notes^[7], the justice’s claims were already belied by the factual record in that case, which showed ICE agents violently harassing and detaining American citizens for extended periods simply because they are Latino. Now the agency, freed from constitutional restraints by SCOTUS, has stopped pretending to be engaged in anything other than racial profiling. Bovino’s admission only confirms what we already knew: These detentions, far from the “brief” inconvenience Kavanaugh described, are often lengthy, violent, and dangerous. Ifill and Anil Kalhan, a professor of law at Drexel University, have proposed^[8] calling^[9] these detainments “Kavanaugh stops,” a label that’s^[10] quickly^[11] catching on^[12].

Perhaps the most comprehensive account of Kavanaugh stops so far arrived last Thursday, in the form of a new lawsuit^[13] against the Trump administration brought by victims of racial profiling in the District of Columbia. The plaintiffs, a group of citizens and legal residents, describe ICE and Customs and Border Protection agents detaining them for hours—or even overnight—because they happen to be Latino. These accounts make a mockery of Kavanaugh’s insistence that these stops are brief and painless for those who have a right to live in this country.

On this week’s Slate Plus bonus episode of Amicus, co-hosts Dahlia Lithwick and Mark Joseph Stern discussed the lawsuit and how it exposes the brutal, racist reality of Kavanaugh stops. An excerpt of their conversation, below, has been edited and condensed for clarity.

Dahlia Lithwick: This is the stuff of nightmares. What is contained in this pleading is the kind of thing that, at any other time, would make you weep for how law enforcement is being conducted. Before we get into what the plaintiffs are claiming, I also want to note that this is a response to Kavanaugh’s breezy claims, on the shadow docket, of how ICE raids are not that bad. 

Mark Joseph Stern: This is, first and foremost, a series of harrowing stories of ICE engaging in racial profiling in Washington. One of the plaintiffs, José Escobar Molina, was grabbed by an ICE agent who called him “illegal” repeatedly, even after Molina said he had his papers. The officers did not let him verify that he was documented; instead, they threw him into detention and held him overnight. The next day, they finally let him go because they never had any legal basis to hold him in the first place. Another plaintiff was walking to the pharmacy to pick up medicine for her daughter when she was stopped, because—according to an ICE agent—she did not “look like a citizen” because she is Latina. In fact, she was a U.S. citizen.

In these cases and others, there is no evidence that the individual targeted by ICE had any indicia of undocumented status other than the fact that they “looked” Latino. And in some of these cases, these individuals were violently detained, held for a considerable amount of time, denied the opportunity to prove that they had legal status, and subject to absolutely degrading treatment. As you said, this is all in some ways a direct response to Kavanaugh’s reframing of immigration stops as a big nothing burger. He said that any legal resident stopped by ICE “will be free to go after the brief encounter.” That is a normative statement of the facts as Kavanaugh understood them. And it is objectively false.

And yet, the Supreme Court has already seemingly rejected a Fourth Amendment challenge to these ICE sweeps. So does this lawsuit stand any chance of success?

Yes, because it does not raise a Fourth Amendment claim. Instead, it argues that immigration officers are violating a federal statute^[15] that permits a warrantless arrest only when agents have “reason to believe,” supported by particularized evidence, that an individual is in the country unlawfully. In other words, they need probable cause, not just a hunch, of undocumented status. The statute also allows a warrantless arrest only if the person is likely to pose a flight risk. And ICE is not following these rules. Agents are just arresting people who look Latino. And they’re doing so without asking whether the individual is likely to attempt to evade the authorities.

So the lawsuit says: Look. Congress laid out a scheme here. ICE agents are brazenly violating it every day. That is a very strong legal argument. But on top of that, this case may well reach the Supreme Court—at which point Kavanaugh will have to see how ICE actually conducts immigration enforcement, and that his own claims were bogus. If the court doesn’t put a stop to it, there will be no denying that Latinos have been relegated to second-class citizenship and must carry around proof of citizenship every single place that they go.

I want to read what was said to Escobar Molina as he was being grabbed by unidentified agents. He said he had his papers. The agent said: “No, you don’t. You are illegal.” Then they stuffed him in a car. When he said again that he had his papers, the driver of the car yelled at him: “Shut up, bitch, you’re illegal.” You know who’s never going to be told that? Brett Kavanaugh.

It brings to mind another line in Kavanaugh’s concurrence. He wrote: “The interests of individuals who are illegally in the country in avoiding being stopped by law enforcement for questioning is ultimately an interest in evading the law. That is not an especially weighty legal interest.” But what about the interests of people who are legally in this country and get violently detained by law enforcement for being Latino? To Kavanaugh, they are invisible.

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