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Kristi Noem's assault on the Fourth Amendment
Thanks, Brett Kavanaugh.
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The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. — Fourth Amendment to the US Constitution
This is the bedrock principle of the Bill of Rights, protecting ordinary people, regardless of their citizenship status, when they interact with law enforcement. And the Trump administration has simply ignored it because it interferes with the racist dragnet being unleashed on American cities.
Over and over, DHS goons descend on areas where immigrants congregate, grab every non-white person they encounter, and drag them away with little regard for their citizenship status. Then they send out indignant liars like DHS Assistant Secretary Tricia McLaughlin to spew nonsense about how this is all perfectly legal.
“Our officials use reasonable suspicion,” McLaughlin claimed on Fox News, explaining the standard federal law enforcement officers use to detain people. “That's protected under the US Constitution 4th Amendment."
But none of that is true.
Unreasonable, improbable, illegal
The Department of Homeland Security deliberately confuses reasonable suspicion and probable cause in hopes that no one will notice that ICE and CBP are making illegal arrests as standard operating procedure.
The Fourth Amendment guarantees that the government cannot arrest a person without probable cause to believe he or she committed a crime. It requires a warrant “supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” Law enforcement officers are, however, allowed to arrest someone without a warrant if they witness a crime taking place or in exigent circumstances where the suspect might flee.
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In the 1968 case Terry v. Ohio, the Supreme Court granted police the power to “stop and frisk” people on the street based on reasonable suspicion — a lower standard than probable cause. In Terry, a police officer in Cleveland observed three men appearing to case a store with the intent to rob it. He approached the men, patted them down, found guns in their coats, and arrested them for carrying illegally concealed weapons. One defendant, John Terry, challenged the arrest claiming that being patted down violated the Fourth Amendment’s prohibition on unreasonable searches and seizures. In an 8-1 ruling, the Court held that being stopped and frisked by an officer who has reasonable suspicion of a crime is a “minor inconvenience and petty indignity.”
Justice William O. Douglas, the lone dissenter, warned that “to give the police greater power than a magistrate is to take a long step down the totalitarian path.” And he was right. Terry stops, as they came to be known, were weaponized against Black and brown people, who are routinely accosted on the street by racist police.
But as bad as US v. Terry is, it didn’t change the requirement that law enforcement officers must have probable cause to believe that a specific crime has been committed — not just reasonable suspicion! — for an arrest. And while DHS agents can take undocumented citizens into custody without a warrant, they cannot simply grab people off the street, throw them in the back of an unmarked vehicle, and check their citizenship status later. But ICE and CBP goons are doing just that, all day, every day, so DHS has resorted to simply lying about the Constitution itself.
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Kavanaugh, stop!
The government cannot rely on reasonable suspicion to justify taking an individual into custody. But the six conservative justices have sufficiently muddied the waters that most people won’t know DHS is lying when it claims that “the Supreme Court has already vindicated us on this position.”
That’s an apparent reference to a shadow docket ruling in a case called Noem v. Vazquez Perdomo, which overturned an injunction blocking DHS from making what are effectively Terry stops based on racial stereotypes.
In its raids on Los Angeles, DHS raided car washes, factories, and places where immigrants tend to congregate, barring the door, and demanding proof of citizenship from every non-white person. This is clearly racial profiling, since the detentions weren’t based on reasonable suspicion that any individual present was undocumented — it was a pure demographic classification.
But in 1975, the Supreme Court held that driving while Mexican near the border did not constitute reasonable suspicion to detain someone and inquire about their citizenship. So Judge Maame Frimpong barred the government from using a person’s race, language, job, or location “alone or in combination” as a basis for “detentive stops in this District unless the agent or officer has reasonable suspicion that the person to be stopped is within the United States in violation of US immigration law.”
The Trump administration raced to the Supreme Court, as is its habit. And the six conservative justices bailed him out again, as is their habit.
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Five of those justices were smart enough to remain silent on their reasoning, since it’s better to be thought a racist than to open your mouth and confirm it. Only Justice Kavanaugh was oblivious enough to shout to the world that the Supreme Court was legalizing racial profiling.
He said it was merely “common sense” that non-white people who “work in certain kinds of jobs” are probably undocumented. Kavanaugh fantasized about a cheerful exchange where ICE agents “briefly stop the individual and inquire about immigration status.”
“If the person is a US citizen or otherwise lawfully in the United States, that individual will be free to go after the brief encounter,” he blathered. “Only if the person is illegally in the United States may the stop lead to further immigration proceedings.”
This was preposterous back in September, when the country had only witnessed DHS’s invasion of Los Angeles and Portland. But five months of ICE snatching random brown people off the street, including many US citizens, highlights the cruelty of Kavanaugh’s facile characterization.
Professor Anil Kalhan coined the term “Kavanaugh stop” to describe the reality of these encounters the justice so glibly dismissed, and the name stuck.
Minnesota not so nice
Meanwhile Kristi Noem’s thugs continue their rampage in violation of the Fourth Amendment, approaching random Somalis in the streets of Minneapolis and demanding proof of citizenship and tear gassing anyone who protests.
They’ve gone door-to-door asking residents to direct them to homes of their Hmong neighbors — hardly the targeted enforcement operation Noem and McLaughlin brag about.
Over the weekend ICE detained ChongLy “Saly” Thao, breaking down his door and reportedly refusing to look at proof of his US citizenship. Agents paraded him out in his underwear and sandals, despite the brutal cold and snow, cuffed him in the back of their vehicle, and only returned him more than an hour later.
This is unquestionably an arrest without probable cause, much less a warrant, and so McLaughlin was dispatched to fire off her usual volley of lies. She claimed that Thao “lives with […] two convicted sex offenders at the site of the operation,” “matched the description of the targets,” and “refused to be fingerprinted or facially ID’d.”
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In fact, the alleged sex offenders do not reside in the house, where Thao lives with his family, all of whom are US citizens. Refusing to be fingerprinted does not constitute probable cause for an arrest, as the Justice Department itself concedes. And the 55-year-old only “matched the description” insofar as Thao and the purported targets are all Hmong men — DHS tweeted out their mugshots repeatedly as it tried to contain the fallout from having kidnapped a US citizen from his living room on live television.
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This chaos falls squarely at the feet of the Supreme Court, which has thus far refused to put a stop to it.
If there is a ray of hope to be found, it lies in their very thin conservative skins. After vicious criticism of his “Kavanaugh stops,” Kavanaugh joined the majority in December to bar Trump from federalizing the Illinois National Guard. We can only hope that they find the moral opprobrium so unpleasant that they course correct before it’s too late.
That’s it for today
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