After federal operation in St. Paul, ACLU lawyer breaks down rights of protesters, bystanders

[MUSIC PLAYING] NINA MOINI: Our top story on Minnesota Now-- we are continuing to follow the federal operation in St. Paul, which led to a confrontation between federal agents and protesters. This morning at a press conference, St. Paul City Council Vice President Hwa Jeong Kim spoke in defense of people who gathered to observe and record the operation.

HWA JEONG KIM: Federal agents use chemical irritants, physical force, even their vehicles against our community members just utilizing their rights. Concerned and caring residents were shoved, thrown to the ground. One observer's foot was run over. This is not safety. This is not law enforcement. This is state violence.

NINA MOINI: In a statement to MPR News, an ICE spokesperson said the agency and law enforcement partners conducted court-authorized law enforcement activity and served a search warrant as part of a federal criminal investigation. MPR News also asked for additional information about the chemical irritants used by agents, but have not received a response.

With growing ICE operations across the country under the Trump administration, advocates have called for community to respond whenever federal action is happening that involves ICE. It's leading to more clashes like we saw yesterday. Joining us to break this issue down is Teresa Nelson, the legal director of ACLU Minnesota. Thanks for your time this afternoon, Teresa.

TERESA NELSON: Thank you. Nina, it's an honor.

NINA MOINI: It's really hard to watch these clashes happen for everybody, Teresa. What stood out to you about yesterday's clash between some of these protesters and federal law enforcement?

TERESA NELSON: Well, several things, I would say. First of all, the protesters, the people who were monitoring, who were watching and voicing their displeasure for the law enforcement activity were on public streets and sidewalks. And that is a location where your right to protest, your right to exercise free speech are strongest. Those are known as traditional public forums. And so even in situations where you've got a spontaneous reaction to what's happening, people who are in public streets and sidewalks have very strong First Amendment rights to be there, to be able to express themselves.

Another thing that struck me is that there was a significant level of violence by law enforcement, and I don't want to discount the ability of law enforcement to carry out their operations. They certainly have that right and that ability. Using this kind of violence and the tactics that I saw being used in this way essentially has the effect of shutting down the ability to protest. And that is not an appropriate way for law enforcement to handle demonstrators who are expressing their views.

NINA MOINI: It seems like we're seeing these interactions happen more and more as advocates will call on other advocates to come out who are trying to watch and record activity that they don't what actually is happening, but have an idea of what's happening. One of the things that we're talking about a lot is the term operation versus raid and IC saying that they are performing operations and some people on the ground saying that no, this was a raid. From your perspective, what are you calling these instances? What is more accurate, and why do you think that word choice matters?

TERESA NELSON: I think that word choice matters because when you say you're conducting an operation that sort of sanitizes the reality of what is happening, we don't what happened inside the facility. At this point, we haven't heard any firsthand accounts. But we do have pictures of the law enforcement folks who showed up, and they were in military-style gear.

They were carrying crowd control weapons. They looked extremely intimidating. And so I think raid is probably an appropriate terminology here. And the effect that it has on people is-- saying it's an operation kind of sanitizes that effect.

In other situations where we've seen raids occurring, a lot of times, we see ICE coming in into a workplace and telling people, all citizens go on one side of the room, all noncitizens on the other, and do all kinds of things without probable cause that are very problematic. And so, again, I think the terminology matters. The impact of what is happening matters.

NINA MOINI: For people who were out there, who said they were peacefully protested and then taken or detained, how do you go about representing people who have an account of the situation and say perhaps that they were just being peaceful, observing, recording. We've seen some accounts like that. But if there is no video of an incident, how do you go about addressing that?

TERESA NELSON: Well, I think in a couple of ways. First, there may not be video taken by bystanders. There may be video that a law enforcement officer has taken via body cam or via their vehicle camera. And so we would certainly look for all of those but also sometimes comes down to the law enforcement officer's version of the situation versus the individual and their testimony and credibility. And so we went through that in a lot of the cases involving law enforcement attacks on journalists and on protesters during the George Floyd uprising.

Ultimately, for some of our clients, we didn't have that video. We just had their accounts of what was happening. And we also had video of other attacks and other violence. And so their accounts were very plausible in that situation.

NINA MOINI: Because it's not about, from my perspective, certainly telling people to protest or not, it's just about the people who go, a lot of people are wondering what their rights are. What do you advise people who want to go either record these types of instances or just feel like they are mistreated if they are in those situations?

TERESA NELSON: Yeah, a few things. First of all, again, your rights are the most protected when you are in what's known as a traditional public forum. Those are typically streets, sidewalks, public parks, things of that nature. If you are on private property, a private property owner can set rules for the speech on their property. They can also restrict your speech. And so being on public streets, public sidewalks is-- again, you're going to have the most protection there.

For videotaping law enforcement-- and again, it doesn't matter if it's federal or state or local law enforcement. They all have to follow the same rules. They all have to obey the First Amendment. And so in that situation, as long as you are in a place where you are lawfully allowed to be and you are at a distance that is safe enough to not interfere-- physically interfere with what law enforcement is doing, you do have a First Amendment right to videotape and record. You have a First Amendment right to be present.

I mean, there is a line where physical interference with law enforcement can be considered obstruction, which under state law is a misdemeanor. And so that is a line that-- where your First Amendment rights give way to the ability of law enforcement to carry out their activities. You don't have the right to physically resist or interfere with law enforcement.

NINA MOINI: Moving forward, Teresa, as the months go on, without an understanding of what is being done during these operations or raids, what are you going to be watching for from your position at the ACLU? What are you kind of doing right now to track and follow what's going on in terms of people's civil rights?

TERESA NELSON: Yeah, so we are in the space of people who are monitoring, people who are witnessing, people who are protesting. We are looking at things like the excessive force that we saw yesterday. We are looking at things that effectively curtail people's speech rights. We are looking at interference with journalists and other people trying to videotape or document with cameras what is happening. Those are all things that we look at.

We've seen this in other states. In Chicago, there's a lawsuit happening right now where there was federal law enforcement systematically was violating protesters' rights, violating the rights of journalists. And that kind of pattern is unacceptable. It violates the First Amendment. And so that's something that we are looking at.

We're also looking at how immigration enforcement is happening. When law enforcement, when ICE agents use racial profiling, for example, to pull over people with Brown skin with no other reason for that kind of a stop, those are things that we're looking at. Those are problematic. The immigrant rights work that we do also includes unlawful detention, unlawful conditions, and things of that nature. And so as we see more and more detention, those issues are likely to arise.

Lastly, we're also looking at local law enforcement enforcing immigration law. Immigration law is typically civil, and our local law enforcement doesn't have the authority to enforce that civil immigration law.

NINA MOINI: All right, Teresa, thank you for checking in with us. Really appreciate your time.

TERESA NELSON: Thank you, Nina. Take care.

NINA MOINI: That was Teresa Nelson, the legal director of ACLU Minnesota.