Minnesotans are being arrested for impeding ICE. What does that mean?
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Border czar Tom Homan has said he'll eventually reduce the number of federal immigration officers in the state from 2,000 to about 150, but he says that depends on whether members of the public stop what he describes as interfering with agents work. Homan did not define what actions he views as interfering. But MPR News has reported, federal agents regularly tell people who are recording or objecting to their activities to stop impeding them.
Homan said in the past month, at least 158 of these interactions have led to arrests. 85 people have been charged in federal court.
Minneapolis attorney Bruce Nestor is representing several people accused of impeding or assaulting ICE or Border Patrol officers. He says citizens are being charged with felonies and are being forced to turn themselves in, give DNA samples and attend hearings.
“Yet what we've seen in the past few days is that all of these charges are now being reduced to misdemeanors by the prosecutors by the United States Attorney's Office,” said Nestor.
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Minnesota Now host Nina Moini spoke to University of St. Thomas law professor Rachel Moran about what the law says about impeding federal officers.
The following conversation has been edited for length and clarity. Use the audio player above to listen to the full interview.
What do you make of the situation where prosecutors are charging people with felonies initially and then knocking those down to misdemeanors?
There's a couple of things to make of it. One is that they realize they don't have the evidence to prove felonies. Two is that they're trying to avoid the grand jury process, potentially, because if you're charging a felony in federal court, you need to get approval from a grand jury, whereas that's not required for a misdemeanor. And three is — this is the worst possible reading — but that they're intentionally charging people with felonies so that they can frighten them, so that they can get DNA samples, so that they can make arrests, knowing that they don't have likely evidence to be able to go forward with the felony.
[The third instance] would be unethical, and I hope that's not what's happening. But the reason I even brought it up is we do have a number of instances where the Department of Homeland Security and the Department of Justice have charged people who are observing or protesting ICE action with this specific felony charge and then not been able to meet their burden to prove the evidence.
How would the government get an impeding conviction? What would they have to prove?
I think the key thing to focus on for these claims about resisting or impeding or obstructing officers is that the government has to prove that someone acted forcibly. So the mere act of recording, for example, that alone is absolutely not resisting or impeding. It is protected by the First Amendment. So there has to be some element of force by the person getting charged, and I think that's something to pay really close attention to.
[In Chicago] I think it was around 90 or so people that got arrested at least, for assaulting or impeding federal agents. It's really been a total failure on the Department of Justice's part. They haven't gotten a single conviction, at least as of last week.
What legally counts as impeding?
So if I'm standing on the sidewalk observing, recording, even screaming — those things are certainly not forcible. We have seen examples where agents have retaliated, have knocked phones out of people's hands, but that's not appropriate. That's illegal action on the part of the agent. So where it becomes a closer call is if you're doing something like using a vehicle to try to block someone in where there's no actual physical contact, but maybe you're arguably using force to try to prevent them from accessing a certain space or leaving a certain space. That's where it becomes a closer call. I still don't know that that would meet the element of force, but it gets harder to distinguish in those kind of instances.
What threshold would you tell someone definitely not to cross to avoid being arrested or charged with any type of crime?
If someone wants to make sure they're on the side of what's protected, they're not engaged in criminal activity, then they don't want to touch the officer. They don't want to touch the officer's vehicle. They don't want to do anything that physically prevents the officer from moving or carrying out their duties. But being fairly close, recording, whistling, that is not impeding. It might the agents might feel like it is because it makes their job harder. But if you're not physically impeding them, you are not engaged in obstruction.
