Some Thoughts on Noem v. Vasquez Perdomo

Regarding Remedies and the Fourth Amendment

The Supreme Court has issued another salient and consequential order without explanation, this time in Noem v. Vasquez Perdomo. The bottom line: the Court has stayed a district court injunction that prohibited certain immigration-enforcement stops in the Los Angeles area. This means that ICE now has freer rein to engage in immigration stops, particularly at places like car washes and farms. Justice Kavanaugh wrote a solo concurrence, and Justice Sotomayor wrote a scorching dissent for the three liberals.

The overall import of the ruling is, to put it gently, not a paragon of clarity. I would like to start by focusing on the fact that Justices Kavanaugh and Sotomayor characterize the injunction at issue very differently, with the effect that they are mostly talking past each other.

Here is the key language in the district court’s order:

b. In connection with paragraph (1), 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.

This provision is ambiguous, mainly due to the phrase “except as permitted by law,” which is nestled in the middle of the text.

You could read that phrase as basically superfluous, in which case the provision would prohibit the government from exclusively (“solely”) relying on the four listed items (alone or in combination) to justify reasonable suspicion. In other words, the government would violate the injunction by acting in a way that posited reasonable suspicion because, and only because, of factors i, ii, iii, iv, or some combination thereof (such as i and iv).

This sometimes seems to be how Justice Sotomayor reads the injunction. And, on that reading, the injunction is on strong ground. I, for one, think that such an injunction would at least purport to isolate purely unconstitutional conduct. Simply observing the four listed things, and nothing else, does not rise to the level of reasonable suspicion. I would flesh out this idea by way of fairness logic somewhat in line with the dissent. A rule that authorized stops exclusively based on the four listed qualities would objectionably burden many innocent persons (here, citizens) whose regular lives involve the listed qualities.

Yet this reading also makes the injunction exceedingly narrow. All an officer would have to do to avoid the injunction would be to say, “I considered not only factors i-iv, but also factor v.” And adducing a factor v would be very easy. Maybe it’s the fact that Los Angeles has a large population of undocumented persons, or the fact that a particular car wash has employed unlawful immigrants before. Justice Sotomayor’s dissent sometimes seems to embrace this implication, insisting that many scenarios raised by the United States are outside the scope of the injunction. On this reading, the injunction would seem both well-founded and nearly toothless.

But superfluity and inefficacy are usually disfavored in the law, and there is at least one other way of reading the key phrase. In prohibiting reliance on the listed factors “except as permitted by law,” the district court might have meant to enjoin any reliance on the listed factors at all, subject to after-the-fact review to see if the officers ultimately had legally sufficient reason to conduct the stop. On this reading, the injunction is very broad and has a huge effect. If an officer said, “I considered factors i-iv, plus factor v,” then the officer might be in violation of the injunction, depending on whether factor v rendered the stop “permitted by law.” Something resembling normal Fourth Amendment adjudication would then take place via contempt proceedings.

This seems to be how both the United States and Justice Kavanaugh interpreted the injunction. The United States adduced various hypothetical situations involving additional factors, and Kavanaugh noted that “officers might not rely only on those factors” listed in the injunction. Once again, Justice Sotomayor viewed those seemingly important scenarios as outside the scope of the injunction and the case. Take this passage from the dissent:

For example, the Government posits that if agents had intelligence that a workplace was “known to have hired 100” undocumented individuals “the prior week,” immigration enforcement officials might well have reasonable suspicion to stop a person at that site. Application to Stay TRO 25. … As an initial matter, that proffered scenario falls outside the scope of the TRO.

By construing the injunction so narrowly, Justice Sotomayor renders the district court’s order far more defensible. But she also risks making it ineffective. Conversely, the United States and Kavanaugh read the injunction broadly, thereby making it much easier to criticize the injunction.

Justice Sotomayor sometimes seems to move closer to the view of the United States and Kavanaugh. At a key juncture, for instance, Sotomayor notes that the asserted prevalence of unlawful immigrants in Los Angeles cannot be an added factor v capable of generating reasonable suspicion. Here too, I agree with Sotomayor, for roughly the reasons I noted above. But in positing that view, Sotomayor is passing judgment on whether a specified factor v comports with the Fourth Amendment and, therefore, the injunction. And if that is true, why aren’t other potential factor v scenarios also part of the case?

As Orin Kerr has pointed out, part of what is going on here has to do with whether Fourth Amendment relief can or should be programmatic. The district court understood the government as having established a program that would generate unconstitutional stops based on the listed factors. So the court seemingly issued a broad injunction that at least initially sweeps in both constitutional and unconstitutional reliance on the listed factors. In that sense, as Kerr notes, the injunction was “prophylactic.” And, as Kerr also notes, such injunctions are disfavored under existing case law. Maybe that case law is wrong. But it is also longstanding—and predates the Trump administration.

The gist of the Court’s decision, then, is to move Fourth Amendment litigation back to stop-by-stop, after-the-fact adjudication in civil and criminal proceedings, perhaps including immigration proceedings.

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But the decision may also have some added effect, largely due to the Kavanaugh concurrence and its comments on the Fourth Amendment issue.

At several points, the concurrence asserts legal views that would constrain the government in its enforcement of immigration laws. These passages are disconnected from the specific factual allegations raised in the case, which neither Justice Kavanaugh nor the Court passes on. They can be viewed as engaging in constraint by affirmation. Think of a teacher who issues a warning by saying, “Oh, I know you would never put chewing gum on another student’s seat.”

In the vastly more serious context of this litigation, the concurrence repeatedly emphasizes, consistent with case law, that immigration stops must be “brief.” For example, it notes: “Importantly, reasonable suspicion means only that immigration officers may briefly stop the individual and inquire about immigration status.” Later, the concurrence notes:

[A]s for those individuals who are legally in the country, 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.

The clear implication of these and other passages is that the ICE conduct described by the complainants is unlawful.

Yet there is an important shortcoming in this discussion, for the concurrence does not explain exactly how reasonable suspicion may be dissipated, nor how long a “brief” stop may last. That uncertainty, too, is consistent with the case law. But, in the context of this case, it raises the possibility—alarming and fundamentally unconstitutional—that Latino citizens might have to carry various papers with them wherever they go, out of fear of being detained. Justice Sotomayor forcefully raised this kind of worry, and it merited more of a response.

At another juncture, Justice Kavanaugh offers a different kind of assurance, in express agreement with the dissent:

To the extent that excessive force has been used, the Fourth Amendment prohibits such action, and remedies should be available in federal court. I agree with the dissent on that point. But to reiterate, this injunction against brief stops for questioning does not address the use-of-force issue.

Here it is Kavanaugh’s turn to declare certain issues outside the bounds of the case. But one might reasonably think that, if there “should be” remedies available for excessive force claims, then the district court’s prophylactic order is a welcome means of answering that need. To address that sensible challenge would require identifying a specific alternative remedy.

Yet the concurrence does not do so. Is Justice Kavanaugh contemplating something specific, like Bivens, the FTCA, a different kind of injunction, or the exclusionary rule? Or is this remark more of a goal than a plan?

At this point, any statement supportive of Fourth Amendment remediation is significant, given the state of existing case law. That this remark might have practical implications is tantalizing but remains to be seen.

The case also raises interesting questions relating to Lyons and CASA, but … this post is already long enough.

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Ultimately, Noem v. Vasquez Perdomo comports with the tilt of recent Supreme Court decision-making with respect to the Trump administration. After a delay, the Administration has won something big. But it has also seen a marker put down. And the decision’s eventual import remains undecided.