Sixth Circuit Reverses Pretrial Release for Antifa Member Accused of ICE-Related Threats

Some excerpts from the long (>16K word) opinions in Wednesday’s U.S. v. Wagner, written by Sixth Circuit Judge Whitney Hermandorfer, joined by Alan Norris:

A grand jury indicted Kyle Wagner for cyberstalking and transmitting interstate threats. The conduct giving rise to the indictment followed a series of escalating communications in which Wagner threatened federal law-enforcement officers and their supporters, solicited resources to evade detection by the authorities, and entertained an inquiry about killing a former government official. A magistrate judge ordered Wagner detained pretrial. But the district court changed course and permitted Wagner’s release. Though acknowledging that the record exhibited some risk of Wagner’s danger, the district court reasoned that certain release conditions—like requiring Wagner’s assurances that he will limit his internet access and avoid making additional threats—would adequately ensure public safety. The Government appealed and sought an emergency stay of the release order, which we granted. We now reverse the district court’s decision….

Kyle Wagner is a self-professed member of Antifa—short for anti-fascist—based in Minneapolis, Minnesota.

Wagner has stated that he’s willing to die in what “he view[s] as” an “ideological battle” against “violent fascist government actions and its supporters.” Around January 2026, Wagner undertook a series of escalating steps to oppose Immigration and Customs Enforcement’s actions in Minneapolis and broadcast his efforts to a social-media following. As the month progressed, Wagner’s social-media posts transitioned into direct calls for violence against federal agents and their supporters.

A few examples paint the picture. Wagner proclaimed that the situation in Minneapolis was “kill or be killed.” In that same post, Wagner encouraged his online followers to “hunt” ICE by “sacrific[ing]” their “vehicles.” In other posts, Wagner declared that he and his followers were “f**king coming for” ICE and were “coming for [ICE’s supporters] too.” Wagner urged his followers to “f**king fight” ICE and “put[ ] hands” on law-enforcement agents and “take their f**king guns.” He suggested that he and his followers should “have a little f**king fun” by “identify[ing] every single” ICE agent, “at the barrel of a gun” if necessary.  Wagner also lamented that protestors had yet to “march on f**king Whipple”—the federal building in Minneapolis—”with guns.”  He therefore directed his followers to “[g]et your f**king guns and stop these f**king people.” Wagner prefaced that directive by exclaiming that he was “not talking about peaceful protests anymore.” Other videos of Wagner’s stressed that Minneapolis was “where ICE has come to die.”

At points, Wagner disavowed any intent to commit physical aggression. Still, Wagner’s followers—spanning Minnesota and beyond—understood him to be calling for violence. In response to one of Wagner’s posts, an Instagram user referenced firearms, commenting that it’s “[t]ime for [ICE agents] to meet your friends. Namely AR15 and 9MM.”  Others expressed interest in joining Wagner’s “cause” from out of state.

Wagner also sought tangible resources from his followers to aid his efforts to “organize.”  Wagner specifically requested funds to help him “evade” detection by law enforcement. And he provided the name of several financial-payment accounts for use in transferring him money. In all, Wagner’s followers sent him between $10,000 and $15,000.

After Wagner posted calls for “[b]oots on the ground” to a local intersection near ICE agents and urged his followers to “[g]et your f**king guns and stop these f**king people,” Instagram deleted Wagner’s account. Yet he quickly resurfaced with a different account—employing the username “@antifa.kaos”—and a new series of online postings.  Among other things, Wagner used his updated account to publish a video of him distributing gas masks and riot shields at a protest.

Wagner’s activities were not just public facing. In one private Signal chat, a user allegedly contacted Wagner with a request to help “kill” a man named J.P., a former high-ranking government official. Wagner responded in the chat that “we do stuff, me and my family of friends” and “[w]e like to know about people who deserve consequences.” He then asked for “credible verifiable information” that he could pass onto his “team” so it could “assess the situation.” In another chat, Wagner allegedly stated that he “may have found” the address and phone number of N.S., an individual “who did investigative work.”

On January 29, 2026, Wagner allegedly “doxxed” J.S., “a pro-ICE individual,” by publishing what he claimed was J.S.’s name, phone number, birth month and year, and address. Alongside that information, Wagner described J.S. as a “bb nazi boy” and said “we can all knock on strangers doors … See you soon kiddo – stay safe out here.”  After the alleged doxxing, J.S. and Wagner apparently discussed fighting in a cage match. In a subsequent post, Wagner allegedly published what he thought was the address and phone number of J.S.’s parents….

Several days later, the Government filed a criminal complaint charging Wagner with one count of cyberstalking and one count of transmitting interstate threats for his alleged doxxing of J.S. Wagner was subsequently arrested in Minnesota. During his arrest, Wagner allegedly began “pushing” agents and “spitting on them” while stating that he would “beat” them. He also told the arresting agents “[d]on’t let me out.” During his booking photo, Wagner flashed two middle fingers at the camera. His message: “This is for the judge.” …

The Government argues that Wagner is a danger to both J.S. and the broader community. It also argues that Wagner is a flight risk. We agree with the Government that it carried its burden on dangerousness. Because that conclusion is sufficient to support Wagner’s detention, we need not address risk of flight….

Wagner … defends the district court’s apparent attempt to draw equivalency between Wagner’s threats and the actions of federal law enforcement. Specifically, the district court remarked during the detention hearing that “protection of the public” was “kind of like a two-way street” that “depends on what side of the street you’re on whether or not an individual might feel they are protected or in need of protection.” Both Wagner and the Government interpret that remark as a “compar[ison]” between “Wagner’s actions in the community to those of ICE.” In context, it thus appears that the district court may have discounted the dangerousness of Wagner’s threats based on its view that ICE also threatened the public.

Any reasoning along those lines was error. The Bail Reform Act focuses on the danger the defendant poses to “any other person and the community.” The district court’s views on the Executive Branch’s immigration policy have no bearing on that inquiry….

Judge Rachel Bloomekatz dissented:

In December 2025, the Department of Homeland Security launched Operation Metro Surge, a mass immigration enforcement effort that deployed thousands of federal agents to Minnesota and triggered widespread protests. Kyle Wagner, a Minneapolis native, was a vocal opponent of Immigration and Customs Enforcement agents throughout the operation. He regularly posted on social media, sometimes multiple times a day, to denounce ICE agents and to call for his followers to resist ICE. Wagner also criticized ICE supporters, and, in one Instagram post, shared the purported personal information and address of a pro-ICE online influencer. Based on this single post, the government charged Wagner with cyberstalking and transmitting interstate threats, and then it moved for his pretrial detention. The district court found that it could reasonably protect against any risk of danger or nonappearance that Wagner posed by imposing numerous restrictive pretrial release conditions, so it ordered his release.

The government appeals the district court’s order denying pretrial detention and releasing Wagner subject to these comprehensive conditions. The government seldom appeals pretrial release orders, so why is it insistent here? Wagner, who identifies as “antifa” (anti-fascist) and has large tattoos on his face, neck, and chest, looks aggressive in his social media videos, so it is no surprise that the White House Press Secretary held up a photo from one of his videos while touting law enforcement efforts against “left-wing agitators.”

But Wagner has never committed a violent crime. He does not own a gun and has disavowed owning one. And there is no evidence in the record that he has ever assaulted or otherwise physically harmed anyone, save for spitting towards agents during his arrest.

Instead, as the government admits, Wagner’s purported dangerousness is based almost entirely on his online speech—namely, his anti-ICE posts. His commentary is no doubt fiery and aggressive, but it is also clearly full of bravado and rhetoric. And the government does not point to a single harmful action his speech has incited. Yet, because of his speech, the government says—and the majority agrees—Wagner poses a danger to the public that no conditions of release can address, so he must be incarcerated awaiting trial.

I disagree. On this record, the government has not provided “clear and convincing evidence” that Wagner is so dangerous, or proven by a preponderance of the evidence that he is at such a risk of absconding, that no set of release conditions “will reasonably assure” the community’s safety and his appearance. Not only does the government overstate the evidence of dangerousness, but in my view, the government has not provided a convincing reason to overturn the district court’s conclusion that the stringent conditions of Wagner’s release—including no social media access, no communication with anti-ICE organizers, GPS monitoring, home confinement in the presence of a custodian, and electronic surveillance on all his devices—are sufficient to protect the public and assure his appearance….

Danielle Asher represents the government.