By Raúl Campillo – San Diego City Councilmember, District 7
The Court held that detentions may be based on the following factors: (I) presence in specific places such as bus stops, car washes, day-laborer pickup sites, agricultural fields, and similar locations; (II) the type of work someone performs; (III) speaking Spanish or speaking English with an accent; and (IV) apparent race or ethnicity. I ask: if none of these factors alone is enough to form reasonable suspicion, how can all four together suddenly add up to reasonable suspicion that someone lacks legal status in the United States?
By allowing the Trump administration to treat apparent ethnicity, language, and low-wage work as factors for detention, the Court has approved legalized profiling. This is not freedom. This is a return to suspicion built on stereotypes. The Fourth Amendment, which states that no person shall be subjected to unreasonable searches and seizures, can now be read as: it is reasonable to profile based on appearance if the person who “looks wrong” happens to be near a low-wage job site in a city with a large Latino population.
Six justices signed onto the decision. Five said nothing at all, simply letting the government proceed. At least Justice Kavanaugh put his reasoning in writing — and it has all the justification and logic you’d expect from a man who once bragged about drinking beer with Bart and Squee.
The Court had emphasized in earlier cases the need for particularized, objective suspicion, not vague generalizations about who “might” be undocumented. Kavanaugh distorts this. He calls it “common sense” to treat men who look Mexican at a Home Depot as suspects, relabeling stereotypes as “circumstances.” He suggests that Latinos as a group are statistically more likely to be undocumented, so appearance plus setting equals suspicion. I refuse to accept that this is what the Constitution says or what Americans believe. That is probability tables disguised as constitutional reasoning.
The Fourth Amendment demands individualized suspicion. Kavanaugh replaces it with statistical discrimination.
Justice Sotomayor sees it for what it is. Her dissent, twice as long as Kavanaugh’s opinion, warns that this effectively authorizes ICE to detain “anyone who looks Latino, speaks Spanish, and seems to work in a low-wage job.” She is right. What Kavanaugh calls common sense is the same stereotype the Court has rejected in every other constitutional context. I urge everyone to read Kavanaugh’s ten pages — which may seem bland, perhaps a bit retrograde — and then read Sotomayor’s twenty, which expose the charade the Court is imposing on us.
The Court Breaks with Its Own Tradition
For decades, the Supreme Court has condemned stereotypes as a basis for government action.
In all those cases, the Court wove a common thread: stereotypes are poison to equal justice.
But in Noem v. Perdomo, Kavanaugh shrugs them off. If precedent says you cannot deny spousal benefits to women because they are “usually dependent,” then Latinos should not be detained because they are “often undocumented.” Both are the worst kind of stereotype — neither with a shred of truth or statistical support. Both betray the promise of equal justice.
Another point: Spaniards colonized across the globe, from the Philippines in Asia, to Mexico, Chile, Argentina, the Caribbean, Equatorial Guinea in Africa, and Florida in the United States. Latinos come in every color; some were immigrants, others enslaved in Mexico and Central America. Should I be relieved that Kavanaugh limited his example to “Mexico or Central America,” leaving out other geographies — or concerned that he did not explicitly exclude Latino-looking immigrants from elsewhere?
The Human Consequence
This is not abstract.
It means that a Mexican-American citizen born in San Diego may feel compelled to carry a passport to the grocery store. It means a Puerto Rican grandmother — a citizen since 1917 — might keep her birth certificate in her purse. It means a Californian whose family lived in Los Angeles in 1781, decades before Brett Kavanaugh’s ancestors arrived from Ireland, must ask: will today be the day I end up in handcuffs for leaving the house without papers?
Federal law already requires immigrants to carry documents. That’s in the U.S. Code. But citizens are not required to carry proof of citizenship. The Fourth Amendment protected that freedom — until now.
So what happens when a citizen tells an ICE officer, “I don’t have to carry documents, I’m American”? Does the officer let them go, acknowledging their rights? Or does suspicion based on appearance outweigh the assertion of their right to move freely? The Court has left every sun-tanned citizen who walks near a place where “immigrants work” in that limbo.
Follow the Money
And why is this policy being defended so fiercely? Follow the money.
By many estimates, 85% to 90% of detained immigrants are held in private prisons. GEO Group and CoreCivic donate heavily to political campaigns. GEO gave $1 million to Trump’s main Super PAC. CoreCivic sent hundreds of thousands to the RNC and affiliated committees. Roughly 98% of private prison money went to Republican candidates, 2% to Democrats.
These companies charge, on average, $115 per detainee per day — almost enough to cover a San Diego resident’s monthly rent. Every 1,000 immigrants detained for two weeks reimburses a $1 million campaign contribution.
Our tax dollars are being funneled into the pockets of private prisons — and the Supreme Court just made it easier to keep that money flowing. As the Buffalo Springfield song says, “Something’s happening here” — except now it’s perfectly clear “what it is.”
Back to Daily Life
This morning I stood in line at a Wells Fargo on El Cajon Boulevard. The first eight people in line were Latino, myself included. Across the street, a construction crew worked. Next to me was a man with a thick salt-and-pepper mustache. I’m an Ivy League-trained lawyer, like most of the justices who issued this ruling. He’s a construction worker. But under this decision, if we cross the street together, our appearance could trigger suspicion.
How dusty would my pants have to be to look like an undocumented laborer? What if I swapped dress shoes for work boots? What if my Spanglish sounded fluent enough? What if I drove a Ford F-250 instead of an F-150? At what point do culture, language, or style become “probable cause” in ICE’s eyes? Ten feet from the jobsite? Five? One?
No group of Americans should live like this, and until yesterday the Constitution was interpreted to uphold that truth.
So if you look Latino — which might mean Middle Eastern, a dark-haired Frenchman, an Arab, an Italian fresh from vacation, a Sephardic or Mizrahi Jew, a Native American, or anyone with a tan and brown hair — the Supreme Court effectively said yesterday: carry your passport, your birth certificate, or your ID. Because if you do, as Justice Kavanaugh puts it, you’ll be “free to leave after a brief encounter with police.” Except for those who are mistakenly deported to a country they were not born in. Brief encounter?
A Republic of Laws — or a Republic of Suspicion?
The Supreme Court’s decision ratifies one worldview: that some people are suspect based on appearance alone. That if you have dark hair, dark eyes, and brown skin, if you speak Spanish or look like you do, you are less free than your neighbor.
The Constitution demands better. If the Fourth Amendment means anything, it is that government must treat us as individuals, not stereotypes. Justice Sotomayor defends that principle. The majority abandons it.
Here’s the truth: we cannot accept a republic of suspicion. We must insist on a republic of laws.
Let me be clear: I know this is not about me. And it is not about the police. I was in law enforcement. I know the difference between reasonable suspicion, probable cause, preponderance of the evidence, clear and convincing evidence, and proof beyond a reasonable doubt. And I doubt anyone here on the Council would claim I don’t support the police. But as in the past three years — right after right after right — the right-wing majority of our Supreme Court has just said that one of their own, Justice Sonia Sotomayor, would be better off not showing up in Los Angeles wearing jeans and a white long-sleeve shirt near a Home Depot, because, you know… “common sense” says she’s an immigrant and should carry papers. That is not freedom.
Because freedom must not be conditional. Citizenship does not come with those conditions.
The government must bear the burden of proving wrongdoing; forcing U.S. citizens of Latino descent to carry proof that they belong here shifts that burden onto them.
And a government that calls criminal suspicion of the darkest-skinned members of our citizenry “common sense” is not guided by common sense at all — but has lost its sense of right and wrong, and its sense of what the Constitution guarantees to each of us.