On Friday evening, a 9th Circuit panel denied the Trump regime’s request for a stay of the district court’s order preventing masked ICE agents from engaging in racial profiling in their Los Angeles raids. The government denied there was any “official policy” to stop people without reasonable suspicion. Well, that’s a phrase that now should be met with suspicion.
“[T]he [lower] court found that, despite there being no evidence of an ‘official policy’ of making stops based only on the four factors and without reasonable suspicion, there was sufficient evidence to show that Defendants were routinely doing so,” the 9th Circuit noted. “The court also observed that ‘a plethora’ of public statements by high-level officials supported the finding that the challenged practice was approved or authorized by officials.”
In other words, the policy did not come out of thin air. When officials such as border czar Tom Homan brags about profiling and Stephen Miller boasts about a 3,000 per day quota for ICE, then the court can roll its eyes at denials and hold the government accountable for its official policy—or “an officially sanctioned pattern of conduct,” as the court put it.
In this case, plaintiffs challenging the conduct prevailed, as the court dryly recounted:
The sworn declarations describe more than a dozen stops based on less than reasonable suspicion— targeting Hispanic or Latino people in public places and at businesses like Home Depots and carwashes. Defendants’ declarations corroborate key allegations regarding the commencement of Operation At Large in Los Angeles and the dispatching of “contact teams” to public places and businesses. Their general descriptions of training regarding the requirements for a lawful seizure do little to overcome Plaintiffs’ specific evidence showing a series of similar detentive stops without reasonable suspicion. On this record, we agree with the district court that Plaintiffs have shown that the challenged conduct is “part of a pattern of officially sanctioned behavior” and thus that the alleged injury is “likely to recur.”
Trump is not the only autocratic figure to deny reprehensible conduct undertaken at his behest as “official policy.” In Gaza, as the world has witnessed mass starvation provoked by Israeli Prime Minister Benjamin Netanyahu government’s deliberate steps to restrict food (falsely claiming Hamas was systematically stealing it), the prime minister had the temerity to assert: “There is no starvation in Gaza, no policy of starvation in Gaza.” The latter part of that (no policy) is as false as the denial of starvation itself.
The Guardian’s Middle East correspondent Emma Graham-Harrison explains that “data compiled and published by Israel’s own government makes clear that it has been starving Gaza. Between March and June, Israel allowed just 56,000 tons of food to enter the territory….less than a quarter of Gaza’s minimum needs for that period.”
In other words, “Even if every bag of UN flour had been collected and handed out, and the [Gaza Humanitarian Foundation] had developed safe systems for equitable distribution [which we know they do not], starvation was inevitable. Palestinians did not have enough to eat.”
Remarkably, autocrats who pride themselves on throwing off restraints and then devise theories to justify unchecked power (the “unitary executive”), like errant children, often claim “Not me!” when things go badly. The Trump crew repeatedly pulls this in disclaiming that it is their policy to do what they are doing.
It wasn’t U.S. policy to keep Venezuelans locked up in CECOT (until Trump decided to move them) or to target foreign students’ First Amendment rights (although the regime systematically snatched up those who advanced pro-Palestinian views). And when it comes to defying, delaying, or evading a host of court orders (although judges have reamed them for doing precisely that), government lawyers play dumb.
Channeling the view of millions of Americans in one such legal standoff, U.S. District Judge Ana Reyes bashed government lawyers who insisted the Defense Department was really not continuing an anti-trans policy the court previously had struck down. “I am not going to abide by government officials saying one thing to the public — what they really mean to the public — and coming in here to the court and telling me something different, like I’m an idiot,” she said. “The court is not going to be gaslit.” Amen.
So we should dump the slippery phrase “official policy,” since the regime’s lawyers so cavalierly play word games. Let’s call it “Trump policy” when Trump publicly admits or touts taking the action at issue (e.g., throwing out pro-Palestinian protesters, exacting revenge against law firms based on their clients, extorting money from media companies); or when multiple whistleblowers confirm (as they did with Emil Bove’s outbursts about defying court orders) that a high-ranking official directed the action. (Tip: when officials tell subordinates to collect or shred notes documenting the suspected policy…best to be on high alert.) Put differently, when the very thing Trump or high-ranking officials want to happen magically occurs (e.g., the plane continuing on its way to El Salvador), it’s official policy.
If Trump officials, hardly a self-effacing bunch, thought what they were doing was legal and/or popular, they wouldn’t hesitate to brag and attribute it to themselves, rather than use the convenient excuse of it not being “official policy.” It’s time to flip the script: When Trump obviously approves of an action that MAGA flunkies claim is “official policy,” it’s most likely illegal, unpopular, or both.
Speaking of "official policy," is it Trump Administration policy for ICE agents to wear street clothes under flak vests and cover their faces like masked bandits while going out to make arrests? They look like street thugs!
Perhaps states should outlaw making arrests or detaining people while masked and out of official uniform or without showing proper ID badges. Agents masquerading as criminals should be treated as criminals! Anyone "caught" making such an arrest or detention should be routinely held without bail until their case can be tried in state court.
Top notch analysis. Many thanks.