By Richard Hernandez & Mark Gutglueck
Late today, a three-judge panel with the 9th U.S. Circuit Court of Appeals upheld a lower court’s imposition of procedural complications for the Donald Trump administration’s mobile patrol strategy for effectuating mass deportations in seven counties in the south-central portion of California, including San Bernardino and Los Angeles counties.
The degree to which the ruling will impede agents with the Department of Immigration and Customs Enforcement in their efforts to roll up foreigners who are in the country illegally, specifically ones in a large portion of Southern California where state authorities and local government employees have proven unsupportive and in some cases resistant to such operations, is not entirely clear. A key element of the ruling hinges on the use and interpretation of the term “reasonable suspicion,” which carries with it a subjective implication that the judges left undefined.
Throughout his 2024 presidential campaign, Donald Trump made repeated commitments that he would, upon reelection, have his administration seriously commit to sealing the country’s borders and identifying, arresting and processing for deportation as many of the 18 million undocumented migrants he estimated were in the country as proved practicable. It was his intention and the intention of those advising him to prioritize California, where at least 2.2 of those undocumented aliens were believed to be residing and where the state and scores of cities had declared themselves to be sanctuaries for those failing to abide by U.S. immigration law.
Those in the Trump administration involved in immigration law enforcement, such as Tom Homan, understood the California Values Act, embodied in 2017’s Senate Bill 54, strongly discouraged or even prevented state and local law enforcement agencies from assisting federal Immigration and Naturalization and Immigration and Customs Enforcement agents and agencies in collaring those in the country illegally. They attributed this to the Democratic Party’s grip on California. The Democrats have supermajorities in both legislative houses in Sacramento and all of the state’s constitutional offices, from governor to lieutenant governor to state attorney general to secretary of state to state treasurer to state controller to superintendent of schools to insurance commissioner. Donald Trump and his key supporters have articulated their belief that the Democrats are mollycoddling illegal aliens because they are cultivating them as future members of the Democratic Party.
Homan, who served as the acting director of Immigration and Customs Enforcement from January 2017 to June 2018 and was designated to be the “border czar” during the second Trump Administration, with others formulated a plan to engage in an illegal alien deportation blitz in those areas within the Golden State – consisting of no more than a half dozen extended communities – where the Republicans rather than the Democrats are in ascendancy. The plan called for obtaining the cooperation of the sheriffs and police chiefs in those regions, whom administration officials believed would be willing to engage in “workarounds” to the California Values Act by defining those in violation of U.S. immigration law as criminals. Plans on Homan’s desk called for arresting as many of the 127,681 individuals in San Bernardino County identified as illegal immigrants and a like number in Riverside County within the first two months of what was dubbed “Operation Alta California” that was due to begin on April 10. Administration officials believed that what was to be orchestrated in San Bernardino and Riverside counties would serve as a model for such cooperation between federal agents and local law enforcement agencies in California as Operation Alta California proceeded.
Just a few weeks before the aggressive undocumented alien round-up was to begin, however, both San Bernardino County Sheriff Shannon Dicus and Riverside County Sheriff Chad Bianco threw a monkey wrench into the works by publicly announcing their departments would not cooperate with the federal agencies on the immigration enforcement issue because doing so might result in that portion of the population in their counties who are in the country illegally – more than six out of every 100 residents in each of the counties – ceasing to cooperate with law enforcement with regard to reporting on the proliferation of crime, no longer coming forth as witnesses or refusing to testify in court. President Trump and key members of his administration, having previously considered both the Republican Dicus and the Republican Bianco to be key allies, were discombobulated by their betrayal and were forced to reformulate the game plan for Operation Alta California, centering its initial phase not in the Inland Counties but rather in Los Angeles and postponing its kick-off by nearly two months.
Once operations were under way, federal agents encountered what was at first characterized as “light” resistance to the raids, a substantial number of which were carried out at workplaces – factories and production facilities – which federal officials had identified as employing substantial numbers of undocumented workers. Industries known to be heavily laden with migrant labor were targeted by federal officials as were places where day laborers, a work force recognized as being more than 97 percent foreign, congregate, such as parking lots in front of big box hardware stores.
In very short order, resistance to the federal immigration enforcement action hardened and grew more sophisticated. Making use of social media platforms, apps, encrypted messaging, maps tracking the Immigration and Customs Enforcement Department task forces’ locations, a network of communication was set up among and between those in the country illegally and immigration advocacy groups, which made use of digitized anti-detention programs, such as ICEBlock and the Rapid Response Network. These employed a succession of hotlines via phone numbers those in Southern California are able to call or text to report sightings of federal officers, primarily ICE [Immigration and Customs Enforcement] officers. Those managing the hotline then relay word to hundreds, indeed thousands, of activists with whom they are affiliated through cell phone contact, giving precise instructions and directions to where ICE is setting up or involved in actions. Those activists in turn contact individual migrants to pass the information along, signaling them to leave or stay out of a specified area or building while the raid is ongoing.
The Mexican government created an app, ConsulAppContigo, to facilitate communications with Mexican citizens in the United States, allowing migrants to instantaneously contact consular officials and reciprocally allow consular officials to contact them, which was typically used when those Mexican nationals were confronted by Border Patrol or Immigration and Customs Enforcement agents or were taken into custody. The information exchange allowed consular officials to both contact the family members of those arrested and arrange for legal assistance.
By June 4, there were massive shows of public resistance to the raids, primarily in Los Angeles and Los Angeles County. Huge public protests materialized in the areas where workplace arrests were taking place or near federal buildings. This complicated the function of Immigration and Customs Enforcement agents. Initially, federal officials were baffled by the rapid turnout of crowds and interference in their operations, but within days had learned about the anti-detention apps.
In addition to targeting specific sites identified ahead of time, Immigration and Customs Enforcement teams engaged in “roving raids” in which they patrolled the urban environment, on the lookout for individuals or groups of people who matched criteria associated with illegal aliens, making stops of them and taking them into custody if they could not offer documentation, proof, evidence or an indicator of U.S. citizenship.
According to civil libertarians and attorneys specializing in Fourth Amendment rights, such tactics skirted the U.S. Constitution, at least with regard to U.S. Citizens, whose rights are guaranteed under the Constitution, and in theory a violation of the rights of anyone in the country, whether they are here legally with visas or legal-residency-granting green cards or not.
Amidst the federal action, local law enforcement agencies, most notably those where the most intense enforcement was taking place – the Los Angeles Police Department and the Los Angeles Sheriff’s Department – were desperately seeking to remain uninvolved, not lending assistance to the federal agents in carrying out the operations, even when civilians obstructed the federal agents or, in a handful of noteworthy cases, grew combative. In only a few circumstances where near riot or riot conditions had manifested did the law enforcement agencies make arrests. This led, initially, to the Trump Administration calling out the California National Guard to provide population control in the areas where the raids were being conducted. After the State of California filed a legal challenge to the use of the National Guard, the federal government deployed over 700 Marines from the 2nd Battalion, 7th Marines stationed at the Marine Corps Air Ground Combat Center Twentynine Palms to specific locations in Los Angeles, San Bernardino and Orange counties to “protect federal personnel and federal property in the greater Los Angeles area.”
Ultimately, after a careful evaluation of the tactics being used by the federal government and an examination of hundreds of arrests, the American Civil Liberties Union, Public Counsel, other groups and private attorneys selected the arrests of three immigrants taken into custody at a bus stop – Pedro Vasquez Perdomo, Carlos Alexander Osorto, and Isaac Antonio Villegas Molina – and a U.S. citizen – Jason Brian Gavidia – as well as a dual U.S./Mexican citizen – Jorge Luis Hernandez Viramontes – they could cite as constitutional test cases and brought suit against the government on July 2 in Los Angeles Federal District Court.
In the suit, the plaintiffs’ lawyers argued that blanket detentions and/or arrests are illegal and that laws relating to specific crimes, such as violating immigration statutes, cannot be applied broadly but must be applied against each defendant specifically, with a credible recitation of the crimes alleged to have been committed by the arrestee. Furthermore, the suit charged the government with engaging in racial profiling, and it asserted that agents of the government cannot make stops based on race or ethnicity, and they cannot “solely” use a person’s workplace, presence in a particular place or location or the work the individual performs as reason to make contact with him or detain him. According to the suit, Immigration and Customs Enforcement agents were either using those pretexts or claiming those constituted the probable cause or reasonable suspicion to stop and question individuals which in an overwhelming number of cases led to arrests and deportations.
The suit maintained that “masked” agents whose identities were unknown and could not be determined were “systematically” and aggressively cornering brown-skinned people throughout Southern California, utilizing force and intimidation, and taking to the ground those who attempted to leave or fled, arresting them without probable cause and without adequately documenting the grounds for doing so, thereafter incarcerating them in “dungeon-like” conditions without access to legal counsel or the outside world.
The immigration population in Southern California, according to the lawsuit, was “under siege” by agents of the federal government, including military personnel, heavily-armed Immigration and Customs Enforcement agents and heavily-armed Border Patrol agents, many of whom were indistinguishable from one another as they were decked out in military-style clothing. Federal personnel were engaged in “indiscriminate immigration raids flooding street corners, bus stops, parking lots, agricultural sites [and] day laborer corners,” the suit maintained. It called upon the court to prohibit the federal government from its “ongoing pattern and practice of flouting the Constitution and federal law.”
The matter went before U.S. District Judge Maame Ewusi-Mensah Frimpong at the U.S. District Courthouse in Los Angeles. Frimpong, an appointee of President Joseph Biden, conducted a hearing in which she heard from government lawyers who constructed what has been acknowledged by all sides as a “narrow” as well as “limited” defense of the government’s actions without raising central tenets of the Trump Administration’s immigration policy.
Representatives of the Trump Administration acknowledged the accuracy of a central element of the lawsuit, that Southern California is indeed “under siege,” but asserted those engaged in the occupation were not agents of the federal government but rather citizens of foreign nations.
Judge Frimpong questioned Sean Skedzielewski, counsel to the Assistant Attorney General for the United States Department of Justice, as to what grounds the government was using to determine whom agents stopped and what constituted reasonable suspicion about those who had been arrested which justified detaining them and questioning them in the first place or otherwise targeting them.
Judge Frimpong pressed Skedzielewski to cogently refute that the government was indiscriminately or prejudiciously targeting individuals for deportation.
Skedzielewski was, however, tight-lipped when Judge Frimpong pressed him for specifics with regard as to what factors constituted “reasonable suspicion” that a particular individual arrested was an illegal alien. Without being specific, Skedzielewski indicated that no one had been arrested “solely” on the basis of their place of work, their presence in a particular place, their ethnicity or race, type of work, language or accent, while seeming to indicate a combination of those factors and more were taken into consideration.
“These are sophisticated operations,” Skedzielewski told Judge Frimpong and hinted at the government’s access to a whole range of investigative tools that were brought to bear in identifying specific individuals, who were targeted. Without stating so directly, Skedzielewski implied that in effectuating the arrests of those specifically identified as being in the country illegally, the agents were thereby brought into contact with others who fit a reasonable investigative profile of an undocumented alien. Skedzielewski purposefully avoided going beyond his references to sophisticated techniques to not compromise any of a host of technical means employed by government agencies.
When Judge Frimpong took issue with the lack of detail in the files for those who had been arrested, Skedzielewski obliquely begged off by stating that the different departments of the federal government had not had time to collate all of the data relating to the thousands of arrests that had taken place. He asserted that the lack of detail pertaining to the three illegal aliens who are plaintiffs in the suit was hardly reason for the government to issue a temporary restraining order limiting further operations.
Skedzielewski’s responses to those questions, as well as to Judge Frimpong’s inquiries relating to the federal government having delegated authority over Operation Alta California to two relatively low ranking government officials – Andre Quinones, a deputy field office director for Immigration and Customs Enforcement and Kyle Harvick, an agent overseeing the Border Patrol office in El Centro – did not seem to satisfy her.
The federal government was not offering a sufficient response or refutation to the plaintiffs’ contention that those being arrested had been detained arbitrarily, and the recording of data relating to those arrests, the judge said, was skimpy at best. In normal state and federal criminal cases unrelated to immigration law, Judge Frimpong pointed out, the arrest record involves investigative/arrest reports in which law enforcement officer explain “why they arrested this person, how they happened to be where they were and what they did. There doesn’t seem to be anything like that here, which makes it difficult for the court to accept your description.” She said that made the plaintiffs’ contention that they were being targeted for arrest on unconstitutional grounds more credible.
Skedzielewski said the action taken by the agents, including the arrests, was properly documented and demonstrated that the federal government had complied with the law in both stopping those suspected of being in the country illegally and arresting them and that the agents had been entirely “above board” in conducting the operations.
Unwilling to compromise in open court the technical means Immigration and Customs Enforcement is relying upon to satisfy its internal standard of reasonable suspicion while those technical means are likely to be of use in future operations targeting illegal aliens, Skedzielewski made no further response.
In a tentative decision previewed on July 11 and finalized on July 12, Judge Frimpong ruled that using race, ethnicity, language, accent, physical whereabouts or employment as a basis for immigration enforcement runs afoul of the 4th Amendment and its prohibition barring unreasonable searches and seizures by the government. She said the available evidence indicated the federal government was engaged in racial profiling in that they were using race, the work people were engaged in, their location, and their language to form “reasonable suspicion,” to detain those arrested on charges of being in the country illegally.
Citing a “mountain of evidence,” Judge Frimpong said Immigration and Customs Enforcement’s actions violated the Fourth Amendment’s protections against unreasonable searches and seizures and the Fifth Amendment’s guarantee of due process.
Her order was binding within Los Angeles, Riverside, San Bernardino, Orange, Ventura, Santa Barbara and San Luis Obispo counties.
She issued an order that such detaining cease forthwith and issued a secondary orders that those in custody at Immigration and Customs Enforcement’s downtown B-18 detention facility be given 24-hour access to lawyers and a phone line unmonitored and untapped by the government.
The Trump Administration appealed Judge Frimpong’s decision. It was taken up by the United States Court of Appeals for the 9th Circuit. The matter was entrusted to a 9th Circuit panel of three justices, those being Judges Marsha S. Berzon, Jennifer Sung and Ronald M. Gould.
In making the appeal, the Trump Administration had requested a stay of Judge Frimpong’s ruling, asserting irreparable harm would ensue as the interruption of the government’s effort to locate and arrest illegal aliens would allow many dangerous individuals to evade capture and remain in the country.
Deputy Assistant Attorney General Yaakov Roth asserted that Judge Frimpong was in error in that the government had in all cases met the burden of abiding by the Fourth Amendment and that none of the arrests had been effectuated indiscriminately.
At a hearing on Monday July 28, Roth offered the government’s position that the operations were within the guidelines of the constitutional protections that all Americans enjoy, and he maintained that Immigration and Customs Enforcement agents were not acting arbitrarily in identifying suspects based on a host of criteria and information available to them, extending to race, ethnicity, language, location, and occupation. Like Skedzielewski when he was before Judge Frimpong, Roth did not before Judges Berzon, Sung and Gould reveal the technical means the government uses in conjunction with other identifying factors which may extend to race, ethnicity, language, location and the line of work engaged in by those ultimately targeted for detention, arrest and deportation.
Like Judge Frimpong prior to them, Judges Berzon, Sung and Gould concluded the Trump Administration was arbitrarily arresting those accused of being in the country illegally, violating the Fourth Amendment in the process. The three-judge panel upheld Judge Frimpong, rejecting the appeal. This included denying the Trump Administration’s request that Judge Frimpong’s ruling be stayed.
“Defendants have not shown that they are likely to suffer irreparable injury without a stay,” the panel’s ruling states. “If, as defendants suggest, they are not conducting stops that lack reasonable suspicion, they can hardly claim to be irreparably harmed by an injunction aimed at preventing a subset of stops not supported by reasonable suspicion,” the 9th Circuit Court of Appeals panel wrote. “We agree with the district court that, in the context of the Central District of California, the four enumerated factors at issue — apparent race or ethnicity, speaking Spanish or speaking English with an accent, particular location, and type of work, even when considered together — describe only a broad profile and ‘do not demonstrate reasonable suspicion for any particular stop.’”
The panel’s 61-page decision reads in part, “In sum, defendants have not established that the district court’s order likely exceeded the district court’s authority to completely protect the named individual and association plaintiffs from the threatened injuries. In sum, we agree with the district court’s conclusion that a district-wide injunction is necessary ‘to provide complete relief’ to each of the stop/arrest plaintiffs ‘with standing to sue’—including the named individuals and associations. Because the district-wide TRO [temporary restraining order] is necessary to provide complete temporary relief to the plaintiffs with standing, we conclude that the district court did not abuse its discretion by entering an order that applies throughout its district.”
Whether the ruling will, as many are concluding, end the widespread and intensive immigration enforcement activity the Trump Administration is engaging in throughout much of Southern California is not a given and may not even be likely.
Both Skedzielewski and Roth, respectively, conducted themselves before Judge Frimpong and the Judge Berzon/Judge Sung/Judge Gould panel such that they maintained that the Trump Administration was abiding by the Fourth Amendment in arriving at a level of reasonable suspicion before proceeding with detentions and arrests while not revealing the details of the methodology used to augment the information pertaining to the race, ethnicity, language, location and the line of work engaged in by those targeted for detention, arrest and deportation.
Of note is that during the hearing before the 9th Circuit panel, an exchange between Roth and Judge Sung took place in which Roth said, “Legally, I think it’s appropriate to use the [race, ethnicity, language, location and the line of work] factors for reasonable suspicion” and Judge Sung responded, “No one has suggested that you cannot consider these factors at all.”
In addition, the 9th Circuit panel in its ruling indicated that while the government could not rely solely on race, ethnicity, language, location and the line of work of those being targeted for arrest, those factors could be considered “as permitted by law.”
Thus, the Trump Administration has preserved its ability to detain, arrest and deport illegal aliens where the factors of race, ethnicity, language, location and the line of work of those being targeted are not considered in a vacuum.
One crucial factor added to the reasonable suspicion equation is data the government has extrapolated from secondary, tertiary and sometimes even fourth or fifth sources pertaining to those suspects. Included in that data is information provided to federal agents, inadvertently, by the suspects or their advocates themselves when, ironically, they are attempting to thwart the action of the federal agents or federal agencies such as Immigration and Customs Enforcement.
The government and law enforcement agencies, based upon prior case law, are at liberty to use cellphone interceptors or cellular tower simulators, such as the Stingray marketed by the Harris Corporation, to monitor cellphone or smart device communications. A Stingray or a cellphone interceptor mimics cellphone towers, receiving incoming or outgoing voice and text communications from cellphones. In this way, using such devices, federal agents can listen in on, monitor or read the unencrypted communications of anyone using a cellphone or smartphone. Under the precedent set in the case of Smith v. Maryland, government agencies do not have to obtain a warrant to utilize a cellphone interceptor or cellular tower interceptor.
In addition, this technology can be compounded with hook-ups to information processing systems or software using algorithms to evaluate or interpret the contents of the communications. Those algorithms can be set to pinpoint, highlight or prioritize for further analysis communications that pertain to subject matter that might relate to a particular topic. In this case, such a topic being prioritized for examination could be discussion of where Immigration and Customs Enforcement agents are located in real time. That a cellphone user is in communication with a network tracking the whereabouts of immigration authorities could be reasonably interpreted, according to the Trump Administration, that the cellphone user is an undocumented alien.
Moreover, even if the known Immigration-and-Customs-Enforcement-agent-tracking network is using encryption, making the content of the communication taking place indecipherable, the fact that the cellphone user is actively linked to the network and using encryption can be reasonably interpreted, according to the Trump Administration, that the individual in possession of the cellphone is a migrant unregistered with the government.
Federal agents can also use global position data emanating from a phone linked to a known Immigration-and-Customs-Enforcement-agent-tracking network to track the whereabouts of the person in possession of the phone or otherwise utilize triangulation of the signals emanating from the phone to physically track or locate the individual in possession of that phone. The federal agents can use that data to formulate reasonable suspicion that a person at a particular location is an undocumented foreigner on American soil. In a circumstance where multiple individuals with phones that are linked to a known Immigration-and-Customs-Enforcement-agent-tracking network converge in one location, according to the Trump Administration, reasonable suspicion exists to conclude a business employing undocumented aliens is operating there.
In this way, efforts by the illegal immigrants or their advocates and supporters to assist those immigrants in avoiding detection and/or identification by the entities seeking their deportations can have the precisely opposite outcome of what was intended, arming the federal government with the legally-required basis upon which to effectuate those migrants’ arrests. Similarly, the wishful assumption that the July 12 ruling by Judge Frimpong upheld by Judge Berzon, Judge Sung and Judge Gould today will bring to a close the roving Immigration and Customs Enforcement raids of the last two months may likewise miss its mark.