Compounding Errors in Noem v. Vasquez Perdomo

<span>This Chapter considers two issues in Justice Kavanaugh's concurring opinion in <i>Noem v. Vasquez Perdomo,&nbsp;</i>standing for prospective relief and the balancing of equities for injunctive relief, and surveys how lower courts have—or have not—applied Justice Kavanaugh’s analysis in the roughly one year since his concurring opinion was released. As&nbsp;</span><span>a non-binding concurrence to an otherwise unsigned and unreasoned stay issued on the Court’s emergency docket, the concurrence should, in theory, have little to no precedential value. Yet the doctrinal errors contained in the concurrence matter for two distinct, overlapping reasons. First, the errors are not unique to the concurrence itself; standing doctrine, for example, is routinely deployed in police misconduct litigation to avoid granting plaintiffs prospective relief. Understanding Justice Kavanaugh’s reasoning, where it came from, and how to counteract it can help plaintiffs navigate similar arguments in future litigation. Second, because there was no majority opinion in </span><i>Vasquez Perdomo</i><span>, Justice Kavanaugh’s concurrence may carry outsized weight. Courts may use it as a crutch to deny relief that they do not want to grant or assume the opinion is an indication of the direction the court’s majority is headed, thus adopting it as canon prematurely. In both instances, Justice Kavanaugh’s errors, without understanding and correction, can become further entrenched in Fourth Amendment structural reform litigation. Pushing back against the concurring opinion in the ways set forth below is therefore vital to ensuring that prospective police misconduct remedies remain available to litigants.</span> <p><span></span></p>