Brett Kavanaugh: If you're brown and poor, you must've done something wrong

PHOTO: DAVID PASHAEE/MIDDLE EAST IMAGES/AFP VIA GETTY IMAGES

Jason Brian Gavidia, a Trump supporter and U.S. citizen, has described how federal agents treated him during an immigration stop in June.

Gavidia runs an autobody shop in an eastern suburb of LA. One afternoon while he was working, a white unmarked van drove by, then did a sudden U-turn. It pulled up, and masked Border Patrol agents jumped out from all doors carrying handguns and military style rifles. Two agents approached Gavidia, pushed him up against a metal fence, and twisted his arm backward as they asked an odd question: What hospital was he born in?

Gavidia happened to be born in a neighborhood hospital, close by, so they were eventually satisfied. But his friend and co-worker Javier Ramirez wasn’t so lucky. Even though Ramirez, a U.S. citizen and father of four, approached the officers with his hands up to show he was no threat, two agents tackled him to the ground. They shoved him facedown, one agent kneeling on his back as he struggled.

Ramirez spent several days in detention. Still traumatized months later, he habitually looks over his shoulder in fear.

Luckily for both men, their ordeal was caught on video. Other recordings of similar incidents with worse outcomes and injuries have gone viral. They show federal immigration officers’ aggression and violence increasing in pursuit of Trump’s daily “detention quotas” to fill for-profit, private contract detention centers.

The 4^th and 14^th Amendments before Trump

The Fourth Amendment to the Constitution, ratified in 1791 as part of the Bill of Rights, prohibits unreasonable searches and seizures. Under clear 4^th A precedent, reasonable suspicion is required before any person— US citizen or not, documented or not— can be stopped by law enforcement. Under Terry v. Ohio, settled law since 1962, officers must have specific, articulable facts suggesting that someone is involved in or is about to be involved in criminal activity. Skin color, a foreign accent, or a racist officer’s hunch were not enough.

A separate Constitutional protection, the Fourteenth Amendment, prohibits the government from denying any person “equal protection of the laws,” meaning the government needs a valid reason before they can treat people differently. Different conduct was always a valid reason; different skin color was not.

Until now, both the 4^th and 14^th Amendments forbade the government from using race as the motivating factor in any government action. That meant masked federal agents could not jump out from behind a tree, or an unmarked van, to harass brown people. They couldn’t run up and demand to see their “papers.” They couldn’t throw people into an unmarked van for no reason other than not carrying the right documents in their pocket or purse.

Unequal protection is now the law of the land

On July 11, following 4^th and 14^th Amendment law as it then existed, a District Court enjoined U. S. immigration officers from making investigative stops based on: (i) presence at particular locations such as bus stops, car washes, day laborer pickup sites, and agricultural sites; (ii) the type of work one does; (iii) speaking Spanish or speaking English with an accent; and (iv) apparent race or ethnicity.

Two months later, six Trump-aligned Supreme Court justices lifted that injunction. On September 8, in Noem v. Vasquez Perdomo, the republican majority scoffed at significant evidence of racial profiling by ICE agents, similar to what Gavidia and Ramirez endured, and allowed it to continue.

Justice Kavanaugh wrote a smug concurring opinion, first rejecting plaintiffs’ standing, then clarifying that “ethnicity” could be a “relevant factor” in assessing reasonable suspicion, when considered along with other salient factors. He failed to define, explore, or explain what ‘other salient factors’ might be, but seemed to think working in a low paying job was one of them.

Kavanaugh’s balance of equities was imbalanced

Kavanaugh stressed the importance of the Government’s immigration enforcement efforts like he was writing for Fox News, while ignoring harms to plaintiffs entirely. In “close cases,” he wrote, citing Hollingsworth v. Perry, “the Court considers the balance of harms and equities to the parties, including the public interest.” Kavanaugh presumed irreparable injury to the government any time it is ‘enjoined by a court from effectuating statutes,’ without examining how the government effectuates those statutes. As Dave Levinthal reports in Columbia Journalism Review, efforts to examine those operations are now stymied, as ICE stonewalls reporter requests and refuses media access to arrest and detention records.

Kavanaugh did not discuss harms caused to children when their parents don’t come home for days, weeks, or months. He did not discuss fear, marginalization, or the psychological harm of being tackled to the ground by masked federal agents. He did not weigh the corrosive harms to a nation that no longer trusts but fears the federal government.

Kavanaugh focused only on people who are in the country illegally, ignoring harms to US citizens and their families, writing, “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.” He bypassed plaintiffs like Gavidia and Ramires, roughed up and wrongly detained for days, weeks and months even though they are US citizens, writing blithely that although the 4^th Amendment still applied, excessive force was not part of the underlying injunction.

What’s a brief attack among friends?

Kavanaugh indulged in the delusion that immigration stops are always “brief,” and that brief abuse at the hands of government is fine.

Demonstrating not only naivete but a complete disregard of the record before him, he wrote that when officers learn that the individual they stopped is a U. S. citizen or otherwise lawfully in the United States, they “promptly let the individual go.” He wrote multiple times that officers only stop people ‘briefly,’ that “reasonable suspicion means only that immigration officers may briefly stop the individual,” and that “Individual(s) will be free to go after the brief encounter…”

The brevity of Gavidia’s encounter did not remove the harm, which may stay with him for the rest of his life. Ramirez’ encounter was not brief, but lasted for days. ICE has wrongly detained hundreds of US citizens like Ramirez for days, weeks, and months.

As Justice Sotomayor writes in the dissent, the Court has now “declared that all Latinos, US 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.” Republicans on the high court did this after giving Trump immunity for heinous crimes, as long as he’s carrying out ‘official’ duties, like murdering brown people in fishing boats.

The only silver lining is that, as people continue dying at ICE’s hands, ICE agents will not share Trump’s criminal immunity for their crimes. No doubt that is why they wear masks, which, in a law abiding country, would be probable cause to suspect that ICE is breaking the law.

Sabrina Haake is a columnist and 25+ year federal trial attorney specializing in 1^st and 14^th A defense. Her Substack, The Haake Take, is free.