In a recent decision, the United States Supreme Court agreed with the federal government that where a person works, the language they speak, how they look, and their geographic location may be enough to briefly detain someone suspected of being in the country illegally. This decision immediately stopped a lower court from limiting U.S. immigration officers from making investigative stops in Southern California, including Ventura County.

While the opinion was only temporary in nature, the highest court signaled how it would likely rule in the future should the issue return to its jurisdiction. Practically speaking, this means our residents and local law enforcement, at least in the short term, will likely see increased federal enforcement activities in Ventura County.


In the concurring opinion, Justice Kavanaugh stated that reasonable suspicion to briefly detain someone suspected of being in the country illegally can exist through a “totality of circumstances,” including a combination of where they work, the language they speak, how they look and the geographic location where they are detained. He goes on to say that “illegal immigration is especially pronounced in the Los Angeles area,” and cites an unknown source that “[a]bout 10 percent of the people in the Los Angeles region are illegally in the United States,” which amounts to approximately 2 million people. He added that undocumented workers “often work in certain kinds of jobs, such as day labor, landscaping, agriculture, and construction, that do not require paperwork and are therefore especially attractive to illegal immigrants; and that many of those illegally in the Los Angeles area come from Mexico or Central America and do not speak much English.”

Accordingly, in stark contrast to the federal judge who issued the original restraining order, Justice Kavanaugh agreed to lift the prohibition, finding that language, ethnicity, work location, and occupation were collectively satisfactory for authorities to rely upon to perform a “brief” detention to inquire about their immigration status.


Justice Sonia Sotomayor disagreed. “We should not have to live in a country where the Government can seize anyone who looks Latino, speaks Spanish, and appears to work in a low-wage job. Rather than stand idly by while our constitutional freedoms are lost, I dissent.” Writing for three members of the Court, Justice Sotomayor stated that “[t]he Fourth Amendment thus prohibits exactly what the government is attempting to do here,” which is stop people based upon broad categories that can equally apply to innocent United States citizens as well as to non-citizens. Relying on the District Court, she held that language, ethnicity, location and occupation are “no more indicative of illegal presence in the country than of legal presence,” especially in a region where 47 percent self-identify as Hispanic or Latino and, in Los Angeles County, where 37 percent of the population speaks Spanish at home. There has to be some individualized suspicion as to the person being stopped, she wrote, otherwise anyone within a certain demographic profile is fair game, and the burden is no longer on the government to justify the stop but rather upon the individual “to carry enough documentation to prove that they deserve to walk freely.” This burden-shifting is irreconcilable with the freedoms guaranteed under the Constitution, according to the justice.


Despite these profound differences, there was an area of some agreement between Justices Kavanaugh and Sotomayor, namely the impermissible use of force in agent-civilian encounters. While the court was not tasked in this application with deciding when officers’ display or use of force was lawful, both justices agreed that the Fourth Amendment prohibits unreasonable searches and seizures and that plaintiffs who believe they were subject to excessive force in immigration enforcement actions should have recourse in federal court.


Lastly, in his opinion, Justice Kavanaugh used or cited the word “brief” eight times in ten pages to describe the length of detention that is allowable for federal authorities to determine if someone is in the country legally or illegally. From our own experience and expertise, we know that the longer and more prolonged the stop, especially when the individual does not feel free to leave, the greater the likelihood that the detention violates the Fourth Amendment. Thus, while the opinion demonstrates the willingness of the court to uphold federal agents’ sweeping discretion to stop individuals in Southern California, it also may signal the permissible parameters for those detentions.


Erik Nasarenko
Ventura County District Attorney


Claudia Y. Bautista
Ventura County Public Defender