Imagine that you are an ICE agent participating in a raid in the parking lot of a Home Depot in Los Angeles. You approach a man with Hispanic features and ask him in Spanish to identify himself, which he does. You then ask him to show a driver’s license or other form of identification. He doesn’t have ID on him. He also doesn’t have any physical characteristics which suggest he is an illegal immigrant, such as Venezuelan gang tattoos. What do you do now?
While the basis for yesterday’s Supreme Court decision is not clear, since all we have to go on is Kavanaugh’s concurrence, we have to assume the initial inquiry is legal, as the agent has the reasonable suspicion necessary to ask it. But does he have probable cause to take him into custody–meaning, to handcuff him, throw him in a van, and take him involuntarily back to an ICE office–just based on his inability to produce ID on demand?
Kavanaugh’s concurrence tells us that the guy will go free if he establishes to the agent that he is a citizen. That suggests to me that the failure to produce a convincing form of ID is, in fact, probable cause in the eyes of the Court. That in turn means that even American citizens of Hispanic descent in areas with high numbers of illegal immigrants will be forced to carry their papers around everywhere they go; otherwise, they risk being lawfully arrested. The burden of proof on citizenship will be on the questioned party, not on the ICE agent.
Are you comfortable with that? I’m not.