The Trump Administration Is Abusing a Law To Threaten ICE Protesters. The Cases Are Falling Apart.

The Trump administration is using a law against impeding federal law enforcement to threaten and arrest people who are recording and protesting immigration officers. However, an unprecedented number of those cases are falling apart once they go to court, according to media investigations, think tank reports, and voluminous court records and video evidence.

The Cato Institute published a report on Monday detailing dozens of instances of federal immigration officers threatening people with arrest for following and recording them, which is protected under the First Amendment. The report, authored by David Bier, director of immigration studies at the Cato Institute, follows a December 4 memo by Attorney General Pam Bondi ordering federal law enforcement to prioritize alleged “domestic terrorism.” Among the acts Bondi defines as domestic terrorism are “doxing” and “conspiracies to impede or assault law enforcement.”

The language of the latter is important because it mirrors that of a federal statute, 18 U.S.C. 111, which makes it a crime to assault or impede federal law enforcement officers.

Bier concluded that the amount of video evidence, in conjunction with the memo, amounts to “an official, nationwide policy of intimidating and threatening people who attempt to observe and record [Department of Homeland Security (DHS)] operations.”

“In a series of videos that I have compiled over the past few weeks, [Immigration and Customs Enforcement (ICE)] and DHS agents are seen pulling over people who follow them and issuing scripted ‘warnings’ that the observers will be arrested if they continue recording,” Bier wrote. “Finally, just this week, Border Patrol agents made multiple arrests of ICE observers.”

In many instances, officers reference the statute. In one example Bier collected, Border Patrol agents stopped a woman in Charlotte, North Carolina, to claim: “18 U.S.C. § 111.…If someone is honking and shouting ‘la migra, la migra, ICE, Border Patrol,’ they’re impeding our investigations.”

Although the Supreme Court hasn’t weighed in on the issue, seven federal circuit courts have, and they all upheld the First Amendment right to record the police. Likewise, federal circuits have upheld the right to use vulgar language to oppose police without fear of retaliation, and to warn others of nearby police checkpoints or speed traps.

“On their own, yelling, protesting, honking a horn, blowing a whistle, following, and recording are all clearly First Amendment–protected activities, even if done during law enforcement operations,” Bier wrote. “Of course, it is possible to follow an officer in a dangerous manner or physically interfere while recording an operation or protesting, but following and recording by themselves without physical interference are clearly protected.”

In addition to threatening and arresting ICE observers, Bier found many cases of ICE agents unholstering or pointing their weapons at people following them, and brake-checking motorists in an attempt to cause a collision. In some instances, ICE apparently also called local police to arrest observers.

The Trump administration has also used 18 U.S.C. 111 to prosecute protesters accused of assaulting and blocking federal immigration officers, but those cases are faring extraordinarily poorly in court. 

An Associated Press investigation published Thursday found that, of the 100 people charged with felony assault on federal officers this year, 55 had their charges reduced to misdemeanors or dismissed altogether.

“Sometimes prosecutors have failed to win grand jury indictments required to prosecute someone on a felony,” the A.P. wrote. “In other instances, videos and testimony have called into question the initial allegations, resulting in prosecutors downgrading offenses. In dozens of cases, officers suffered only minor injuries, or no injuries at all, undercutting a key component of the felony assault charge that requires the potential for serious bodily harm.”

For example, on December 10, a federal magistrate judge dismissed assault charges against Nathan Griffin, a manager at Chicago’s Laugh Factory, after prosecutors disclosed that a grand jury had refused to indict him. Griffin was accused of closing a door on a Border Patrol agent’s leg outside the comedy club in October. The agent allegedly suffered “a small gouge and scrapes on his right leg.”

At least six other similar 18 U.S.C. 111 cases in Chicago fell apart after grand juries found insufficient evidence to indict, or federal prosecutors reviewed video evidence and decided it didn’t support officers’ claims. In several instances, prosecutors refiled those cases as misdemeanors, which don’t require a grand jury indictment, only to lose again.

There have been similar instances across the country in Los Angeles, Washington, D.C., and Charlotte. The collapse of these felony prosecutions has shocked federal judges and defense lawyers, who say they rarely see U.S. Attorneys’ Offices fail to persuade a grand jury, much less refile cases after striking out the first time.

“I’ve been doing this for 20 years,” Rob Heroy, a Charlotte defense attorney, tells Reason, “and I’ve never seen this done before.”

Heroy is representing Heather Morrow, who was arrested during a protest outside a Charlotte ICE office in November. Morrow was accused of grabbing a federal officer’s shoulders and jumping on his back. The two were charged with felony assault, but the U.S. Attorney’s Office for the Western District of North Carolina recently dropped the felony charges and refiled several misdemeanor charges against them.

Judges, too, have been alarmed by the trend,

“A ‘no bill’ vote by a grand jury was virtually unheard of in this district until Operation Midway Blitz,” Judge Gabriel Fuentes of the United States District Court for the Northern District of Illinois wrote in a November order dismissing charges against defendant Dana Briggs. “The last and only one the Court can remember was from the early part of this century. Then, in the past two months, at least three have occurred.”

Federal prosecutors in Chicago originally charged Briggs, a 70-year-old U.S. Air Force veteran, with felony assault on a federal law enforcement officer, but after a grand jury refused to indict him, prosecutors refiled the case as a misdemeanor. As Briggs’ case moved toward trial, prosecutors abruptly dismissed it in November, a day after the defense said they’d call Customs and Border Protection Chief Gregg Bovino as a witness.

Fuentes presided over the cases of four other defendants who were arrested outside an ICE detention center near Chicago in late September. Fuentes noted that in two of those cases, he “obtained sworn confirmation that video backed up the affiants’ allegations in the felony complaints – yet the grand jury refused to find probable cause.”

In one of the most dramatic Chicago cases, federal prosecutors in Chicago dropped charges against Marimar Martinez, a woman who was shot five times by a Border Patrol agent. The government originally accused Martinez of ramming an agent’s vehicle, but according to Martinez’s lawyer, video showed an agent turning his vehicle into her car, after which an agent said, “Do something, bitch.” The agent then got out of his car and started shooting at Martinez.

Fuentes noted in his order that there had been “a rash of federal prosecutions like that of Briggs” in the District of Columbia, where President Donald Trump deployed National Guard troops and federal immigration officers this summer. 

One federal judge in D.C. wrote that defendants “have been detained for days despite the Government having no reason to detain them” and called the wave of failed charges “unprecedented prosecutorial action.”

In the most famous Washington, D.C., case, a federal jury refused to indict Sean Dunn, the man who threw a sandwich at Border Patrol officers this summer, on felony assault charges. After federal prosecutors refiled the case as a misdemeanor, a jury acquitted Dunn at trial.

In another D.C. case highlighted by the A.P., prosecutors tried and failed three times to obtain a felony indictment against 44-year-old Sidney Lori Reid for allegedly injuring a federal agent during an anti-ICE protest. They eventually refiled the case as a misdemeanor, but body camera footage shown at trial revealed that Reid hadn’t intentionally hit the agent. “Instead,” the A.P. reported, “the agent had scratched her hand on a wall while assisting another agent who had shoved Reid and told her to ‘shut the f— up’ and ‘mind her own business.'”

A jury acquitted Reid in under two hours.

It would be tempting to call these cases failures, and they are in a legal sense, but the administration’s real goal isn’t to win cases. It’s to intimidate American citizens into giving up their First Amendment right to peacefully oppose and monitor the police.

In a statement to Reason, a DHS spokesperson said: “We are proud of the brave men and women of ICE who are facing a 1150% increase in assaults as cowardly politicians and activists encourage violence against them. We have said it a million times: ICE does NOT arrest or deport U.S. citizens. If a U.S. citizen is arrested, it is because they have obstructed or assaulted law enforcement. Every day the men and women of ICE put their lives on the line to protect and defend the lives of American citizens. This violence against ICE must end.”