The “Kavanaugh” Stop
Profiling of Hispanics is Legal
In 1968, the Supreme Court of the United States (SCOTUS) made a landmark decision in Terry v. Ohio, which would affect millions of persons each year - to this day. Terry v. Ohio holds that police officers throughout the country may:
1) stop a person on the street (i.e., pedestrian stop),
2) temporarily detain said person in order to question them, and
3) perform a pat-down of the outer garments (i.e., frisk) as a check for weapons for the purposes of officer safety
*Provided, that is, if an officer can articulate (i.e., explain) reasonable suspicion that the individual has committed, is committing, or is about to commit a crime. If, for example, a man is wearing a baggy, hooded sweatshirt in the dead of summer when it’s 90+ degrees, then perhaps the officer has reason to believe that he is concealing a firearm. That degree of articulable reasonable suspicion can be argued and held up in an American court of law.
Thus, Terry v. Ohio formally made the use of “stop, question, and frisk” (SQF) a constitutionally mandated tactic that every sworn police officer in the US could use. A tool in his/her tool belt that allows them to be proactive, particularly in the realm of illegal firearm carrying and gun violence.
Terry v. Ohio birthed the “Terry” Stop. Stops that occur every day on the streets of US cities, disproportionately against young Black and Hispanic men in the most high crime, economically disadvantages neighborhoods.
To be clear, I’m not against SQF – provided that it is used correctly, under strict supervision and documentation, and in a more precise manner. It is a valuable tool.
But it can devolve quickly when it becomes the tool – as evidenced in places like New York City, Philadelphia, Chicago, and Camden – and is used indiscriminately in a broad-brushed manner to stop any young Black and/or Hispanic male for a “furtive movement” or simply for being in a “high crime neighborhood.”
You may be thinking, get to the point John. Here it is:
We now have the “Kavanaugh” Stop. I didn’t coin the term, but this is what many people are calling it.
SCOTUS continues to chip and chip away at our 4th amendment rights under the constitution. On September 8, in Noem v. Vasquez Perdomo, Justice Brett Kavanaugh authored an opinion that included the following sections:
US immigration officers can perform “investigative stops in the Los Angeles area when the stops are based on the following factors or combination of factors: (i) presence at particular locations such as bus stops, car washes, day laborer pickup sites, agricultural sites, and the like; (ii) the type of work one does; (iii) speaking Spanish or speaking English with an accent; and (iv) apparent race or ethnicity.”
“If the 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. If the individual is illegally in the United States, the officers may arrest the individual and initiate the process for removal.”
“Importantly, reasonable suspicion means only that immigration officers may briefly stop the individual and inquire about immigration status. If the person is a U. S. citizen or otherwise lawfully in the United States, that individual will be free to go after the brief encounter.”
Gee thanks, Justice Kavanaugh. Those second and third bullet points are a real reprieve for all Hispanic looking and/or sounding individuals who are US CITIZENS (you’d sense my sarcasm if I were speaking). Surely US CITIZENS won’t mind getting racially profiled by immigration officers, which is a constitutionally protected tactic/strategy thanks to SCOTUS, as long as they are “promptly let go.”
BTW, we’ve been down this road before in the not too distant past with Arizona’s SB 1070 “Show me your papers” law. The Maricopa County Sheriff’s Office (MSCO) was found to be stopping too many US citizens of Hispanic descent (it’s Arizona).
According to this Slate article, “Perhaps the most comprehensive account of Kavanaugh stops so far arrived last Thursday, in the form of a new lawsuit 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.”
This SCOTUS, in a 6-3 decision with Kavanaugh attempting to justify in a sole concurring opinion, has just legalized the profiling of Hispanics.