The “Kavanaugh Stop” Explained: Where It Came From and What It Changed
Justice Kavanaugh’s Concurrence and the Term “Kavanaugh Stop”
The term “Kavanaugh stop” refers to an immigration enforcement stop justified by factors like a person’s perceived ethnicity, language, or type of work – a practice given judicial cover by Justice Brett Kavanaugh’s words in a recent Supreme Court opinion[1]. The concept emerged from Justice Kavanaugh’s concurring opinion in Noem v. Vasquez Perdomo (Sept. 2025), a Supreme Court shadow-docket decision that lifted a California court’s injunction against racial profiling in immigration stops[2][3]. In that concurrence, Kavanaugh defended the lawfulness of immigration officers stopping individuals based on “relevant” factors such as apparent race or ethnicity, accented or non-English speech, presence in certain locations (like day-labor sites), or employment in fields often done by undocumented workers[1]. He stressed that “apparent ethnicity alone cannot furnish reasonable suspicion” but can be a “relevant factor” when combined with others[4]. In short, if those factors together create reasonable suspicion someone is “illegally present” in the U.S., Kavanaugh argued an officer may briefly detain and question the person about immigration status[5].
Justice Kavanaugh’s concurrence explicitly outlined what he saw as the “basic constitutional rules” for immigration stops. He wrote that under the Fourth Amendment, “immigration stops must be based on reasonable suspicion of illegal presence,” must be brief, and that any ensuing arrests require probable cause, with no excessive force allowed[6]. He added that officers “must not make interior immigration stops or arrests based on race or ethnicity”[6], seemingly to caution that enforcement away from the border cannot be solely race-based. Nonetheless, in the same breath, Kavanaugh leaned on 1970s precedent allowing race as one factor near the border: United States v. Brignoni-Ponce (1975) held that a “Mexican appearance” could be one relevant element in Border Patrol’s decision to stop a vehicle near the border[7]. Kavanaugh cited that case repeatedly and emphasized that, under Supreme Court precedent, such profiling factors are permissible in immigration enforcement so long as they are not the sole basis[8][1].
In defending these stops, Justice Kavanaugh offered a rosy assurance about their intrusiveness. He described immigration stops as “typically brief” encounters that impose no lasting harm: “If the person is a U.S. citizen or otherwise lawfully in the United States, that individual will be free to go after the brief encounter. Only if the person is illegally in the United States may the stop lead to further immigration proceedings.”[9]. In other words, Kavanaugh suggested that someone wrongly stopped would merely have to prove their citizenship or legal status and then could promptly walk away, no worse for wear[9]. Critics have noted that this portrayal downplays the real experience of those stopped – many of whom have been hassled, handcuffed, or detained even after asserting their U.S. citizenship[10][11]. Justice Sonia Sotomayor, in dissent, pointed out specific examples (from the very case’s record) of citizens who were not “free to go” despite repeatedly stating they were American[12][13].
The moniker “Kavanaugh stop” itself was coined in reaction to Justice Kavanaugh’s concurrence and its immediate aftermath. Within days, Drexel law professor Anil Kalhan dubbed these broad, profile-based detentions of Americans “Kavanaugh stops,” a term that quickly “stuck” in media and legal circles[14]. By October 2025, news outlets and commentators were using “Kavanaugh stop” to label the wave of immigration spot-checks that Kavanaugh’s opinion had effectively green-lit[15][3]. In sum, the origin of the term lies in Justice Kavanaugh’s own words endorsing an expansive view of immigration officers’ stop authority, and it was embraced (often derisively) by observers who saw it as a new low for Fourth Amendment protections.
A New Standard vs. Traditional Fourth Amendment Rules
The “Kavanaugh stop” standard marks a departure from prior rules governing investigative stops and immigration enforcement. Under the classic Fourth Amendment rule from Terry v. Ohio (1968), police may conduct a brief “Terry stop” only if they have reasonable suspicion that a person is involved in criminal activity – and that suspicion must be based on specific, articulable facts, not vague hunches or impermissible factors like race. In ordinary policing, it is well-established that “the Constitution prohibits selective enforcement… based on considerations such as race.” (Whren v. United States, 1996)[16]. In other words, an officer cannot stop someone simply for “driving while Black” or “looking Latino”; race or ethnicity can play no role in suspicion except perhaps a very narrow one (e.g. matching a specific suspect description)[17].
Immigration enforcement has long tested those limits. In Brignoni-Ponce (1975), the Supreme Court carved out an exception for the border area: it allowed Border Patrol to consider “Mexican appearance” as one factor among others when stopping vehicles near the Mexican border[18]. The Court reasoned (controversially) that given the high percentage of undocumented immigrants of Mexican ancestry in the 1970s, “Mexican appearance” had some probative value, although it acknowledged many U.S. citizens might fit that profile[19]. Even then, the Court insisted ethnicity alone was insufficient – there had to be additional facts like the vehicle’s behavior, proximity to the border, etc.[8]. Outside the border zone, immigration agents traditionally were expected to adhere to normal Fourth Amendment standards, meaning no roving stops of individuals without reasonable suspicion and certainly no purely race-based inquiries.
Justice Kavanaugh’s concurrence leans heavily on the Border Patrol precedents but arguably extends their logic further into the interior. He asserts that reasonable suspicion can be formed by a combination of factors that include ethnicity, language, location, and type of work[1] – essentially legitimizing what critics call “profiling by proxy.” This approach differs from a standard Terry stop in several ways:
Suspicion of a Civil Violation vs. Crime: A Terry stop requires suspicion of a crime, but a Kavanaugh stop targets a civil immigration violation (unlawful presence), which is not a criminal offense. Kavanaugh treats illegal presence as a sufficient basis for a stop[6], blurring the line between criminal and civil enforcement. This is a significant shift in constitutional norms, since traditionally the Fourth Amendment’s reasonable suspicion standard was tied to criminal activity.
Role of Race and Appearance: In general policing, using race as a factor is forbidden absent a specific suspect description. Under the Kavanaugh stop doctrine, race, ethnicity, and language can explicitly be part of the calculus for reasonable suspicion[1]. Kavanaugh attempted to soften this by saying “apparent ethnicity alone” can’t justify a stop[4], yet in practice his rule allows officers to weigh a person’s minority status or accent alongside other factors (like being in a known immigrant neighborhood or leaving a day-laborer site). This is a stark departure from the spirit of Whren’s colorblind enforcement principle[16].
Degree of Intrusion: Terry stops were conceived as brief pat-downs for weapons or quick questioning to confirm or dispel suspicions, usually lasting only a few minutes. Kavanaugh stops, however, have often involved more invasive tactics – agents demand identity papers, sometimes handcuff the individual or detain them for extended periods while verifying immigration status[11][20]. Justice Kavanaugh’s opinion insists these encounters are “brief” and harmless if one is lawfully present[9], but numerous incidents contradict that idealized view. For example, U.S. citizens have been held for hours or even days despite providing ID, simply because agents did not believe them or wanted additional proof[21][22]. In effect, the “brief encounter” Kavanaugh described has in practice sometimes turned into detention until proven innocent, a scenario at odds with Fourth Amendment norms.
Requirement of Individualized Facts: A cornerstone of Terry is that officers must have particularized and objective facts suggesting a person is engaged in wrongdoing. The Kavanaugh stop standard dilutes this requirement by validating broad, group-based indicators (e.g. looking Hispanic and standing near a Home Depot parking lot). Civil rights advocates argue this amounts to lowering the evidentiary bar – substituting coarse proxies for genuine individualized suspicion[23][24]. The resulting standard is more permissive of “guilt by appearance” than prior Fourth Amendment doctrine would ever tolerate outside the immigration context.
In summary, a Kavanaugh stop represents a significant shift toward “immigration exceptionalism” – effectively treating immigration enforcement as a realm where normal constitutional constraints are relaxed. Before, while immigration agents had some extra leeway (like Border Patrol checkpoints), they were still understood to be bound by core Fourth Amendment principles in the interior. After Justice Kavanaugh’s concurrence, the official stance of at least a Supreme Court majority is that such stops are constitutionally reasonable so long as some amalgam of factors (which may include race) points to illegal presence[1][25]. This departs from both standard police stop rules and the more cautious approach lower courts had started to enforce (the district and appeals courts in Vasquez Perdomo had banned using race, accent, or job as factors before the Supreme Court intervened[23][3]). Critics say the Kavanaugh stop effectively “dismantles” Fourth Amendment protections for people of color by legitimizing selective immigration checks that would have been plainly unconstitutional in other contexts[26][27].
Impact on Immigration Enforcement: Border and Interior
The Supreme Court’s blessing of Kavanaugh-style stops has had profound real-world effects on U.S. immigration enforcement – both at the border and, especially, in the interior of the country. It coincided with a broader trend of the Court insulating immigration agents from accountability, notably through the June 2022 decision Egbert v. Boule. In Egbert, the Court (with Justice Kavanaugh joining the majority) ruled that a private individual could not sue a Border Patrol agent for using excessive force and violating the Fourth Amendment at the border[28][29]. This effectively shut the door on Bivens damages lawsuits against federal border officers, even for egregious conduct. The decision was seen as “a blow to federal police accountability”, especially in the border region[30][29]. By eliminating a key deterrent (the threat of personal liability), Egbert arguably emboldened Border Patrol agents to act with impunity, knowing that victims of constitutional violations have little recourse. In short, border enforcement agents now operate with near-complete immunity from civil suits, heightening concerns that violations of search-and-seizure or excessive force rules will go unchecked[29][31].
Despite this shield, Egbert did not formally alter the substantive rules governing border searches and stops – Border Patrol is still, on paper, bound by the Fourth Amendment. Agents need “reasonable suspicion” to stop people or vehicles in the border zone (aside from fixed checkpoints), and they cannot enter a home without a warrant even near the border[32][33]. What Egbert changed was the remedy: if those rules are violated, the Court has signaled that victims will rarely be able to get their day in court. The result is a “green light” by lack of enforcement – border officers may feel freer to push boundaries, knowing courts will hesitate to intervene in the name of national security[29]. This context set the stage for the “Kavanaugh stop” doctrine to flourish, by removing one of the major checks (fear of lawsuits) on aggressive enforcement.
The most dramatic impact, however, has been seen in the U.S. interior – away from the immediate border – where Immigration and Customs Enforcement (ICE) and other DHS agents have ramped up operations. Armed with the Supreme Court’s shadow-docket approval in September 2025, federal authorities initiated or expanded a series of enforcement “surges” in urban areas, no longer constrained by the enjoined policy that had forbidden profiling. Almost immediately, reports surfaced of immigration agents detaining people in public places based on little more than their looks or language. For instance, after the Court’s order, ICE agents in California resumed stopping people at bus stops, outside businesses, and on sidewalks, demanding “papers” from anyone who fit their profile of an undocumented immigrant[34][35].
Within weeks, dozens of U.S. citizens were caught up in these sweeps. By late October 2025 (roughly 50 days after Kavanaugh’s concurrence took effect), watchdogs had tallied at least 170 U.S. citizens detained by immigration officials due to the expanded profiling – an astonishing number indicating widespread collateral damage[36][37]. These were not just brief inconveniences. In many cases, citizens and legal residents were handcuffed, transported to ICE facilities, and held for hours or longer while they tried to prove their status[11][20]. Some were even injured by the use of force during the stops. For example, in Houston, ICE agents violently detained a father and his 16-year-old son (both U.S. citizens) as they walked to school; the teenage boy was slammed to the ground and had to be hospitalized with back and neck injuries – all before agents realized their mistake[38]. In Foley, Alabama, a construction worker Leonardo Venegas – a U.S. citizen with a Real ID – was tackled and arrested by ICE officers who refused to accept his government-issued ID as legitimate[39][40]. These incidents underscore that the “brief” check envisioned by Kavanaugh can easily morph into a prolonged, traumatizing detention if agents are skeptical or overzealous.
Immigration authorities, for their part, insist they are “following the law” and not targeting by race, claiming they only detain those they suspect are in the country illegally[35]. But public officials and civil liberties groups argue that, in practice, the Supreme Court’s move **“emboldened” the administration to push into everyday public life in ways previously unseen[24][27]. The Department of Homeland Security under President Trump launched high-profile operations in major cities – often over the objections or non-cooperation of local authorities.
One such campaign, “Operation Metro Surge,” was rolled out in the Minneapolis–St. Paul area in late 2025. The federal government deployed roughly 2,000 DHS agents (including ICE and Border Patrol tactical teams) to the Twin Cities region in a concentrated effort to ramp up arrests of undocumented individuals[41][42]. This surge brought immigration enforcement into neighborhoods and business districts on an unprecedented scale. Over a period of weeks, there were numerous publicized confrontations between federal agents and residents in the Minneapolis area. Witnesses described agents – often masked and heavily armed – surrounding people in parking lots and at transit stops, questioning anyone who looked like an immigrant and demanding proof of citizenship[34][43]. Many of these encounters were caught on video and spread on social media, fueling outrage.
Federal officials even appeared to adopt a “papers, please” stance toward the general public. In one startling statement, DHS Secretary Kristi Noem (who took office in 2025) said that everyone, including U.S. citizens, “should be prepared to present proof of citizenship” if they are near an immigration enforcement action[44]. She explained that if agents are carrying out a targeted operation, “there may be individuals surrounding that [target]…we may be asking who they are… and if they are breaking our federal laws, we will detain them as well until we run that processing.”[45]. In essence, the administration admitted that anyone in the vicinity of a raid could be caught up in a “Kavanaugh stop” – a stark warning that virtually no one is immune from having to prove their status on the spot[46][47]. Civil rights advocates note that this transforms public space: simply being near a person of interest (or in a community with many immigrants) can put citizens at risk of arbitrary detention – a scenario that would have been unthinkable prior to 2025.
Case Study: Minneapolis and Other Urban Areas
The impact of the Kavanaugh stop doctrine has been acutely felt in Minneapolis, Minnesota, which became a flashpoint in late 2025 and early 2026. Minneapolis is a self-declared “sanctuary” jurisdiction that previously limited cooperation with ICE, making it a friction point for Trump administration enforcement. When Operation Metro Surge flooded the area with federal agents, local officials and residents were alarmed by the aggressive tactics and the erosion of civil liberties on display. Minneapolis Police Chief Brian O’Hara remarked that “this was entirely predictable” – warning that the federal approach was creating a “very, very tense situation on the ground” and that his officers were left “in the middle” of an explosive dynamic between federal agents and community protesters[48][49]. Indeed, as ICE agents conducted raids and street stops, Minneapolis saw public protests and incidents of unrest; local police, who were not involved in the immigration operations, often ended up responding to clashes or calming crowds angered by ICE’s presence[50].
Tragically, the tensions culminated in a deadly shooting on January 7, 2026. In that incident, ICE agents confronted a 37-year-old woman named Renee Good in her vehicle, a few blocks from where George Floyd had been killed in 2020. According to video footage, Good apparently tried to back away and then drive off when armed agents approached her SUV; an ICE officer opened fire through her windshield, killing her[51]. The shooting sent shockwaves through the community. Chief O’Hara publicly lamented the loss of life and noted that Good’s death showed exactly why such militarized operations are perilous, “particularly when there is no underlying serious criminal threat” in many of these encounters[52]. (Good was not a cartel operative or violent felon – reports indicate she may have simply panicked when armed men surrounded her car.) The FBI is investigating the shooting, but DHS Secretary Noem quickly characterized Good’s actions as “an act of domestic terrorism,” defending the agent’s use of force as self-defense[53]. This official stance has been deeply polarizing, with Minnesota’s leaders pointing out that a routine traffic stop by local police would never have escalated to lethal force in such circumstances, especially absent a serious crime.
Beyond that high-profile case, scores of other Minnesotans experienced unjustified stops or detentions. For example, on Jan. 11, 2026, in suburban West St. Paul, armed ICE agents surrounded a 69-year-old Latina grandmother in her car as she arrived at the family restaurant she owned[54][55]. The woman and her husband are U.S. citizens. Her husband ran outside with her passport, frantically trying to prove her citizenship. When he demanded to know why they were stopping her, an agent replied bluntly: “because she is Mexican.” “She’s brown. I look white… My God, is this America?” the husband later recounted, still in disbelief[56][57]. In another case that week, ICE agents detained José Roberto Ramirez, a 20-year-old U.S. citizen of Latino and Native American heritage, in a grocery store parking lot in Robbinsdale, MN. Ramirez, sensing he was being followed, actually pulled over in a public place hoping to stay safe; even so, agents drew guns, dragged him from his car, and handcuffed him[58][20]. His mother rushed to the scene with his birth certificate and passport in hand, yet agents initially refused to release him – one even told Ramirez “he wasn’t from here,” despite him being born in Minneapolis[59][20]. ICE held Ramirez for several hours before letting him go without charges. According to his family, agents ignored proof of his citizenship and even tightened his cuffs when he asserted his rights[20]. Stories like these illustrate how Kavanaugh stops have shredded the sense of security of citizens in minority communities: having official ID and being a citizen no longer guarantees freedom from custody if an agent decides you fit their profile.
Such incidents have spurred legal and political pushback. In Minnesota, the ACLU and local civil rights attorneys filed a class-action lawsuit on January 15, 2026, against DHS and ICE, accusing federal agents of “quintessential racial profiling” and unconstitutional stops and seizures of Somali and Latino residents[60][61]. The complaint details the pattern of warrantless stops, baseless arrests, and excessive force used in Operation Metro Surge, alleging violations of the Fourth Amendment (unreasonable searches/seizures) and Fifth Amendment (equal protection and due process)[61][62]. Minnesota’s state and local officials have likewise condemned the federal actions – noting that citizens should not have to live in fear of being randomly accosted by immigration police on the street. Similar lawsuits and outcry have arisen elsewhere: for example, civil rights groups in Illinois and California have been battling the administration’s tactics in court as well[63][64]. (The original case in Los Angeles – Vasquez Perdomo – was one such effort to restrain ICE, until the Supreme Court intervened.)
Other cities with large immigrant communities have reported a surge in ICE operations under the new regime. In Houston and other Texas cities, ICE teams have been conducting workplace raids and neighborhood sweeps, which too have resulted in U.S. citizens being erroneously detained. Media investigations (including one by ProPublica) identified more than 50 Americans in 2025 who were wrongfully held after being questioned about their citizenship[65][66]. Many of them were Latino or Black U.S. citizens who simply didn’t have papers immediately on hand or whose documents were dismissed as fake by authorities[39][67]. These numbers likely underrepresent the true scale, as not every incident becomes public.
In sum, the Kavanaugh stop doctrine has aggressively extended immigration enforcement into the fabric of daily life in some U.S. cities. What used to be limited to border zones or specific targeted operations has evolved into a more generalized “show me your papers” regime affecting citizens and non-citizens alike. Community trust in law enforcement (federal and even local) has been severely strained. Lawmakers and activists compare this era to some of the darkest civil liberties abuses in American history – drawing parallels to Korematsu (the WWII internment decision) and warning that we are witnessing a civil-rights backslide in real time[68]. Whether these practices continue may depend on the outcomes of ongoing legal challenges and, ultimately, on how the courts and public opinion respond to what is unfolding on the ground.
Legal Recourse for U.S. Citizens Subjected to “Kavanaugh Stops”
For U.S. citizens (or anyone) wrongly detained under this new doctrine, legal recourse is limited and fraught with obstacles. The Supreme Court’s recent jurisprudence – Egbert v. Boule being a prime example – has made it exceedingly difficult to sue federal officers for constitutional violations. In Egbert, the Court flatly denied a Fourth Amendment excessive-force claim against a Border Patrol agent, refusing to extend the classic Bivens remedy to that context[28]. The reasoning was that immigration and border security involve “national security” considerations and are better left to Congress or internal executive remedies[69][70]. This stance suggests that if an ICE or Border Patrol agent violates someone’s Fourth Amendment rights (for instance, by detaining a U.S. citizen without cause), the citizen cannot easily get damages or personal accountability through the courts. Justice Kavanaugh himself is generally aligned with this view – he joined the majority in Egbert, and in other cases he has favored narrowing the availability of lawsuits against officers. In practical terms, lawsuits for money damages (Bivens suits) for “Kavanaugh stops” will almost certainly be dismissed as involving a “new context” or “special factors” (namely immigration enforcement) that the Supreme Court has deemed off-limits to judicially created remedies[71][72].
What about injunctive relief – court orders to stop these practices? That too faces hurdles. One major barrier is standing and the precedent of City of Los Angeles v. Lyons (1983). In Lyons, the Supreme Court held that a plaintiff who had been subjected to a police chokehold lacked standing to seek an injunction against chokeholds, because he couldn’t show it was likely to happen to him again. Justice Kavanaugh invoked Lyons in his concurrence, noting that the plaintiffs seeking to ban ICE’s profiling would have to surmount its strict standing requirements[73]. Essentially, to get a forward-looking injunction, a person must prove they face a real and immediate threat of being stopped unconstitutionally in the future – a tricky thing to establish. The government can always argue that any given individual’s chance of repeat harm is speculative. In Noem v. Vasquez Perdomo, the plaintiffs (who were Latino residents of L.A. frequently exposed to ICE operations) convinced the lower courts that they did have standing, but Kavanaugh’s commentary cast doubt on that, implying the Supreme Court might not agree if the case proceeded on the merits[73][74].
Despite these challenges, there are a few avenues being tested:
Habeas Corpus / Immediate Release: A person who is a U.S. citizen and gets detained by ICE can file a petition for habeas corpus in federal court to demand their release. In many wrongful detention cases, lawyers have used habeas or emergency motions to free citizens from ICE custody. For example, in past incidents where Americans were mistakenly held for deportation, courts have intervened once the facts surfaced. This is a critical remedy if someone is in prolonged detention (though ideally, proof of citizenship presented to ICE should result in release without needing a court order).
Class Actions for Injunctive Relief: As noted, the ACLU has filed class-action suits in places like Minnesota and Illinois on behalf of citizens and others who fear they will be profiled and stopped[60][63]. These suits seek injunctions to bar ICE from stopping people solely for looking like immigrants or for speaking Spanish, etc. While Noem v. Perdomo shows the Supreme Court’s current majority is hostile to such injunctions, these cases are still important. They build a record of what’s happening and preserve issues for potential Supreme Court review on the merits. The outcome is uncertain – it’s possible a different angle or a future Court could be more sympathetic, especially as evidence mounts of widespread rights violations. For now, though, the shadow-docket stay in Perdomo indicates that, at least temporarily, the Court has allowed these practices to continue[3].
State Law Remedies and Criminal Prosecution: In theory, state laws could provide some recourse. For instance, a person roughed up by ICE might have a claim for assault or false imprisonment under state tort law. The Federal Tort Claims Act (FTCA) allows suits against the U.S. for certain torts by federal employees, so a wrongfully detained citizen could file an FTCA claim for money damages. There have been cases in the past where U.S. citizens detained or even deported by mistake won settlements or judgments under the FTCA (or had local courts award damages for false imprisonment). However, FTCA claims have limitations: the government is immune from many intentional torts and any claim that hinges on a federal officer’s “discretion” might be barred by the discretionary function exception. Additionally, FTCA litigation is slow and the government often defends aggressively, so relief is not guaranteed.
In extreme cases like Renee Good’s death, state criminal law might come into play. A state prosecutor could attempt to charge the ICE agent who shot Good under state homicide laws. But here another obstacle arises: federal officers can invoke Supremacy Clause immunity, arguing that they were acting within the scope of their federal duties and necessary authority. This doctrine has historically allowed federal agents to avoid state prosecution if a court finds their actions were “authorized” or at least “colorable” as part of their federal role. Given Noem’s stance that the shooting was justified, the agent involved would surely claim such immunity from any state charges[53]. Federal criminal prosecution (e.g. by DOJ for civil rights violations) is another remote possibility, but under the Trump administration in 2025-26, it’s highly unlikely the Justice Department would charge its own ICE agent for doing what the administration encouraged him to do.
· Internal Agency Complaints or Oversight: Kavanaugh, in his concurrence, hinted that if there are abuses, individuals can pursue “excessive force claims” or presumably complain through official channels[75][76]. In reality, internal DHS oversight has a mixed record. One can file a complaint with DHS’s Office for Civil Rights and Civil Liberties or Inspector General. However, these mechanisms rarely result in prompt relief for an individual case, and they certainly do not change policy on a broad scale. With the current administration’s explicit approval of these tactics, internal complaints may fall on deaf ears. As the ACLU and others note, traditional safeguards are failing – hence the turn to public pressure and court action.
In short, post-Egbert, the legal landscape is grim for citizens caught in Kavanaugh stops. You might eventually get released (since you cannot legally be deported if you’re a citizen), but you might endure substantial harm in the meantime, and suing for damages afterward is very difficult. Equitable relief to stop the practice system-wide is also hard to obtain under current precedent. The most promising development for accountability is the wave of public attention and the documentation of abuses: this has led to questions being raised at the highest levels. Notably, legal journalists have directly sought comment from Justice Kavanaugh about the unfolding situations (such as the case of a U.S. citizen zip-tied by ICE after an agent told her she didn’t “look like” she could have her last name)[77]. Kavanaugh did not respond[78]. However, this public scrutiny may indirectly influence the Court in the future. If enough evidence shows that Kavanaugh stops routinely violate rights (and that the Court’s confidence in “brief” encounters was misplaced), it could build pressure either for a judicial course-correction or for legislative action to protect citizens. For now, though, anyone detained in a Kavanaugh stop faces an uphill battle to get justice – a reality that civil rights advocates decry as leaving a “rights without remedies” situation reminiscent of some of the most regrettable chapters in constitutional history[68].
Justice Kavanaugh’s Recent Clarifications and Ongoing Debate
In the wake of the backlash and real-world fallout from his concurrence, Justice Kavanaugh appeared to attempt a partial course correction. In December 2025, the Supreme Court decided Trump v. Illinois, an unrelated emergency dispute about deploying the National Guard in Chicago. Justice Kavanaugh wrote a concurring opinion (in what was essentially a footnote) that reiterated the core Fourth Amendment limits on immigration enforcement, almost as if reminding the government of the rules. In that footnote, he stated: “The Fourth Amendment requires that immigration stops must be based on reasonable suspicion of illegal presence, stops must be brief, arrests must be based on probable cause, and officers must not employ excessive force. Moreover, the officers must not make interior immigration stops or arrests based on race or ethnicity.”[6] (emphasis added). This statement was notable: it reads like a straightforward summary of existing law, and pointedly includes the prohibition on using race or ethnicity as a basis for interior stops. Observers immediately noticed the tension between this footnote and Kavanaugh’s prior concurrence in Vasquez Perdomo. In the earlier opinion, he had plainly said ethnicity can be a factor in stops (citing Brignoni-Ponce)[4], whereas in the December footnote he sounded a caution against any race-based interior enforcement[6].
Legal analysts have offered a few theories to reconcile (or explain) the discrepancy. One interpretation is that Kavanaugh is drawing a line between “interior” enforcement and border-area enforcement, suggesting that his approval of using ethnicity was meant for border zones or near-border circumstances only. The footnote’s use of the qualifier “interior” could imply that inside the country (away from the border), officers may not consider race at all, whereas near the border, perhaps the old Brignoni-Ponce rule still applies[79][80]. However, as Professor Dan Epps noted, Kavanaugh gave no explicit indication in Vasquez Perdomo that he intended to so limit his words – he spoke broadly about immigration stops, and Los Angeles (the site of that case) is well over 100 miles from the border[81][82]. Moreover, even cities like Chicago (the focus of Trump v. Illinois) fall within 100 miles of an international border – Chicago is roughly 70 miles from the Canadian border if one considers the Great Lakes coastline[83]. So if “interior” is meant geographically, it’s ambiguous what areas qualify. The distinction may not hold much water, and as Epps remarked, it seems more likely that Kavanaugh was responding to criticism rather than genuinely limiting his earlier position[84].
Indeed, by late 2025 the term “Kavanaugh stops” and their fallout were being widely criticized in legal media[85]. Kavanaugh’s concurrence had been accused of green-lighting racial profiling and creating a civil liberties crisis. It’s quite plausible that Justice Kavanaugh inserted the footnote to “walk back” or clarify his stance in response to the public outcry[85]. Even if so, the effort can be described as a “tiny step” at best. His reminder that stops shouldn’t be based on race “in the interior” didn’t actually repudiate the use of race as a factor – it might have simply meant “don’t stop someone solely for being Hispanic”, which was already his stated view. It did not renounce the broader idea that appearance or language can contribute to suspicion. In effect, Kavanaugh acknowledged the controversy but did not reverse his position that Brignoni-Ponce remains good law. Critics argue that the footnote was too little, too late: “an attempt to dial back his opinion a tiny bit” that has “done absolutely nothing to blunt… the behavior” of immigration agents on the ground[86]. The Trump administration certainly did not treat the footnote as a constraint – DHS continues to operate as if it has free rein to conduct Kavanaugh stops, and Secretary Noem’s statements in January 2026 didn’t reflect any newfound caution arising from the Supreme Court[47][86].
As for Justice Kavanaugh’s own recent comments or rulings, beyond that footnote, he has not publicly commented further on the “Kavanaugh stop” issue. Reporters like Chris Geidner have reached out to him with specific questions – for example, asking if he still stands by his assertion that these stops are “typically brief” and harmless in light of the many citizens who have been detained and harmed, and whether he is aware of the terminology “Kavanaugh stop” now attached to this practice[77][87]. No response has been given[78]. On the Supreme Court, no full merits case has yet been heard that squarely presents the issue of race-based immigration stops since Vasquez Perdomo was handled on the emergency docket. It’s possible that one of the new lawsuits (like the class actions in Minnesota or Illinois) will eventually reach the Supreme Court, forcing a more detailed examination. If that happens, Kavanaugh’s views will be front and center. He may be compelled to clarify whether he believes, for instance, that Brignoni-Ponce should apply deep in the interior or whether any meaningful limits exist on ICE’s authority to stop people who “look” undocumented.
It’s also worth noting Justice Kavanaugh’s broader track record on immigration and executive power: he has generally been deferential to the government. As a D.C. Circuit judge, he often sided with robust executive authority in national security and immigration matters. On the Supreme Court, he joined decisions like Department of Homeland Security v. Thuraissigiam (2020), which restricted judicial review for asylum-seekers, and he dissented in cases where the Court blocked aggressive immigration measures. This pattern suggests that Kavanaugh’s inclination is to support law enforcement and border control efforts, giving the benefit of the doubt to officers in the field. The “Kavanaugh stop” concurrence is consistent with that philosophy, prioritizing what he sees as effective immigration policing over the potential infringement of individual rights.
In conclusion, the doctrine derived from Justice Kavanaugh’s concurrence in Egbert v. Boule (via Noem v. Vasquez Perdomo) has introduced a controversial new chapter in Fourth Amendment law. It originated from Kavanaugh’s legal reasoning that aligns with older precedents but diverges from modern norms, it alters how immigration enforcement operates by loosening traditional restraints, and it has had tangible human consequences across the country. The term “Kavanaugh stop” now stands as a shorthand for a regime of heightened immigration enforcement – one that many believe sacrifices constitutional guarantees in the name of targeting undocumented immigrants. Legal pushback is underway, but under current jurisprudence, relief for those caught in these stops is hard to come by. Meanwhile, Justice Kavanaugh, facing a legacy tied to these events, has shown signs of concern (hence his later clarification) but has not taken concrete action to mitigate the doctrine he helped set in motion. As comparisons are drawn to infamous Supreme Court failures of the past[68], the ultimate resolution of the Kavanaugh stop – whether it becomes a permanent feature of American law or is eventually rolled back – remains an unfolding story, one that will test the balance between national immigration policy and the fundamental rights of individuals in the United States.
Sources:
· Supreme Court concurrence of Kavanaugh, Noem v. Vasquez Perdomo (2025)[9][4]; analysis by SCOTUSblog and others on Kavanaugh’s rationale[2][1].
· Egbert v. Boule, 596 U.S. ___ (2022), majority opinion (Thomas, J.) (limiting Bivens for border agents)[28][29].
· United States v. Brignoni-Ponce, 422 U.S. 873 (1975) (allowing “Mexican appearance” as one factor near border)[7].
· Trump v. Illinois (2025), Kavanaugh concurring footnote reiterating Fourth Amendment limits[6][16].
· Techdirt reports and LawDork (Chris Geidner) analysis of the aftermath of Kavanaugh’s concurrence, documenting detentions of U.S. citizens and coining of the term “Kavanaugh stop”[14][36][47].
· Minnesota Star Tribune (via ADN) report on ICE “surge” in Minnesota and resulting racial profiling of citizens[60][88][5]; CBS News interview with Minneapolis Police Chief on the ICE shooting[48][51].
· ACLU Minnesota class action complaint (2026) alleging constitutional violations by ICE in Operation Metro Surge[60][63].
· Institute for Justice case (Leo Venegas) challenging ICE practices in Alabama[89][90].
· ACLU commentary on border rights post-Egbert[29][91] and general Fourth Amendment principles.
· Other relevant case law: Whren v. United States, 517 U.S. 806 (1996)[16]; City of Los Angeles v. Lyons, 461 U.S. 95 (1983); Hernandez v. Mesa, 589 U.S. ___ (2020) (no Bivens for cross-border shooting).
[1] [3] [5] [20] [24] [25] [27] [34] [35] [43] [44] [54] [55] [56] [57] [58] [59] [60] [61] [88] Allegations of racial profiling of US citizens on the rise as ICE surge expands in Minnesota - Anchorage Daily News
[2] [7] [8] [18] [19] Justice Brett Kavanaugh and racial proxies - SCOTUSblog
https://www.scotusblog.com/2025/09/justice-brett-kavanaugh-and-racial-proxies/
[4] [9] [73] 25A169 Noem v. Vasquez Perdomo (09/08/2025)
https://www.supremecourt.gov/opinions/24pdf/25a169_5h25.pdf
[6] [17] The Supreme Court Signals a Rolling Back of ICE’s Power to Arrest and Detain in Trump v. Illinois - Law Office of Bhavleen Sabharwal, P.C.
[10] [11] [12] [13] [14] [15] [36] [37] [38] [68] [77] [78] [87] Brett kavanaugh stories at Techdirt.
https://www.techdirt.com/tag/brett-kavanaugh/
[16] [74] [79] [80] [81] [82] [83] [84] [85] Race, the Fourth Amendment, and Immigration in Trump v. Illinois
[21] [23] [26] [39] [40] [67] [71] [72] [75] [76] [89] [90] Supreme Court’s ‘Go Ahead And Round Up All The Brown People’ Decision Is Being Challenged In Court | Techdirt
[22] [45] [46] [47] [62] [63] [64] [65] [66] [86] Noem says that virtually anyone could face a Kavanaugh stop
[28] [29] [30] [31] [32] [33] [91] Four Things to Know About the Supreme Court’s Ruling in Egbert v. Boule | American Civil Liberties Union
https://www.aclu.org/news/civil-liberties/four-things-the-supreme-court-ruling-egbert-v-boule-ice
[41] [42] [48] [49] [50] [51] [52] [53] Minneapolis police chief says “this was entirely predictable” following deadly ICE shooting - CBS News
https://www.cbsnews.com/news/minneapolis-police-chief-ice-shooting-predictable/
What would be the reason for increased immigration activity? What would be the reason for the vast spread of illegal immigrants throughout these United States thus changing immigration from a near the border issue to a widespread issue? Do you acknowledge the exclusive jurisdiction of the federal government, acting through Customs and Border Patrol and Immigration and Customs Enforcement, to determine lawful entry into the US? Do you acknowledge that your much relied on Terry decision is criminal law decision? Do you acknowledge that the rights afforded to an illegal immigrant being investigated/detained for deportation is different than a person detained for suspicion of a crime? Do you draw a distinction between detained and subject to deportation and arrested and subject to criminal prosecution? Do you acknowledge the use of fraudulent social security numbers and other identity paperwork by both illegal aliens and more routine criminals? Do you acknowledge that actively interfering with Immigration and Customs Enforcement is criminal conduct? Are you a lawyer?