Backlash Over ICE Tactics in Minnesota

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1:24Do that with Acrobat. Want to stop searching for files and finally get everyone on the same page? Do that. Do that. Do that with Acrobat. Learn more at adobe.com slash do that with Acrobat. This is Bloomberg Law with June Grosso from Bloomberg Radio. I don't think it's a pullback. It's a little bit of a change. Everybody in this room that has a business, you know, you make little changes. You know, Bovino is very good, but he's a pretty out there kind of a guy. And in some cases, that's good. Maybe it wasn't good here. That was President Trump on Fox saying they're de-escalating in Minnesota rather than enforcing a pullback.

2:06Trump is shuffling the lieutenants in charge of his immigration crackdown in Minneapolis after a second person was killed by a federal officer in a matter of weeks. He's dispatched Border Czar Tom Homan to the state to replace Border Patrol Chief Greg Bovino, who'd been the face of the aggressive, almost militarized operation. My guest is Christy Lopez, a professor at Georgetown Law. She served as the deputy chief in the special litigation section of the Civil Rights Division at the Justice Department and led the pattern or practice investigations of police departments. I want to get your general impression of what's been happening in Minnesota, the tactics that have been used by immigration agents.

2:52You have the shooting deaths of two people by ICE officers within weeks of each other. And we've seen all these videos showing aggressive tactics by officers. ICE agents throwing chemical agents at not even a crowd, at a few people, shoving people who are trying to film them. I saw one video where a man was already on the ground, subdued, and an ICE officer still sprayed a yellow chemical into his face. This is a law enforcement agency that is completely out of control. I don't say that lightly. I have just seen this happen in other places. You know, when I was at the Department of Justice Civil Rights Division, we would investigate law enforcement agencies.

3:39There were local agencies that were sometimes out of control. and they acted just like this one for all the same reasons. It's just that what's so disturbing about this, I mean, part of what is disturbing about this to many people is that it's the federal government. Part of what's disturbing about it is that this is a nationwide, you know, they have nationwide enforcement authority. And so it's been most pronounced in Minneapolis, but certainly not the only place where they've been shooting people and using excessive force, lying about what they're doing. And so when you have a law enforcement agency that's out of control, that's frightening on a couple of levels.

4:14One is just people are right to be concerned about their personal safety, but it's also a real threat to democracy. So I think it's hard to overstate how problematic this is. Problematic is too weak a word, right? It's really hard to overstate how dangerous what is happening is. Along those lines, Alex Preddy was the fifth person to be shot and killed by federal immigration officers since Trump launched his immigration crackdown in Los Angeles last June. And at least 19 times, federal immigration agents have opened fire on civilians. Most of those incidents involve agents firing at drivers during enforcement stops.

4:58None of the officers has faced criminal charges, and the administration hasn't announced any internal disciplinary measures against them. Is this very unusual? What would normally happen? So I'm hesitating about usual and normal for two reasons. One is with 18 ,000 law enforcement agencies, it's hard to say what's normal or usual in any given agency because there's a wide spectrum of what happens. And even when you talk about the federal law enforcement agencies, even when you focus on immigration enforcement, CBP, HSI, ICE, it's hard to know how abnormal this is. I will say it is completely unacceptable.

5:36And it is the reason that we see this law enforcement agency being out of control is because there is not any accountability, either external, right, there's no investigation that's being done so that there can be criminal prosecutions. There's very little accountability through civil litigation, because of how difficult the Supreme Court has made the law in this area. And the internal accountability mechanisms, which are the most effective, generally speaking, in the most real time, you just say to people, don't do this, you give them a day off if they start to do something wrong and you fire them if they keep doing it, that sort of accountability is not happening.

6:10Now, that's long been a problem with immigration enforcement in part because of the line, and we've been drawing it and discussing these cases, between what implicitly what people think is okay for law enforcement to do to non citizens versus citizens. And a lot of what immigration enforcement has been doing in this country has been done to non-citizens, oftentimes at the border, and they've essentially been given a pass. And so it's really important for a number of reasons to stop making a distinction between how they treat non-citizens and citizens. And one of the reasons is that that distinction is why they've been allowed to grow into an agency that uses excessive force with impunity and lies about it with impunity.

6:49So I think it's important for people to recognize that the way that these federal immigration enforcement agencies are working now did not come out of nowhere. It has a long history in being allowed to behave this way in places that were not as open to the public and against people that did not have as much sympathy as protesters do now. As far as investigations, it seems as if the federal government is doing an investigation on the latest killing of Alex Preddy. I'm not sure about the Renee Good shooting, whether they're actually doing an investigation on the federal level? It's a little unclear, and I think it's probably changing.

7:29It's probably fairly fluid, given that they're getting much more pushback than they expected. But from what I have read, it appears that they're doing what is called a use of force review, which is what you should do anytime there's a serious use of force. And what historically DHS law enforcement agencies have done, right? Any use of force, not just shootings, but, you know, strikes to the head, for example, anything that's a serious use of force, you would do a review to determine whether there are any policy violations or whether there were any maybe training problems or even equipment problems that were revealed by the incident.

8:03And that's something that should happen regardless of whether there's a complaint, regardless of whether there's any media about it. It's an internal, often called an administrative investigation. It sounds like they're maybe doing that now. I think people would be correct to be concerned about the robustness of that investigation and the credibility of that investigation, given the demonstrably false prejudicial statements that leaders of that organization have already made. And so what often happens when law enforcement agencies have those problems with credibility or just competency is you will have an outside agency conduct that administrative investigation.

8:40So that's what I think we should all be asking for. It's an independent agency for the federal law enforcement agencies to open up, provide all the evidence to an independent entity to be able to conduct that administrative investigation. In the past, the offices of inspector general, federal offices of inspector general would have been a good candidate for that. They're rather compromised because of the way that their independence has been threatened by President Trump. And so I'm not sure that's an adequate stand in here. In addition to that administrative investigation, there should be a federal criminal investigation.

9:15And specifically, there should be an investigation to determine whether there were criminal violations of these individuals' federal civil rights. We know from the good killing, they decided not to do that. And my understanding is that attorneys left the civil rights division because of that decision. I don't know whether they're rethinking that. They could. People should be pushing them to rethink that. And the same here with Freddie's killing. They could be doing a criminal investigation to see whether his civil rights were violated. And there's been no indication that I know of that they are.

9:44But that could change. So let me ask you this, because there's been a lot of talk about, you know, immunity with the vice president coming out last week about Renee Goods shooting and saying absolute immunity, then backing off a little bit. What kind of criminal charges could be brought against a federal officer? So there's not a large body of federal criminal law, actually. So oftentimes the only charges that are available at the federal level are charges for violating individuals' civil rights. So that is definitely something that the federal government could do. There are also oftentimes when law enforcement agents behave in this way, they are violating state criminal law.

10:26So, for example, in the Derek Chauvin case where Derek Chauvin killed George Floyd, he was found under state law to have murdered George Floyd, the state crime of murder. That is much more complicated when the state is trying to prosecute not a state or local law enforcement officer, but a federal law enforcement officer. There is a large body of law that makes it more complicated and more difficult to prosecute federal law enforcement officers criminally for state prosecutors to prosecute federal law enforcement officers criminally. That said, it's not impossible, and it is something that the state appears to be pursuing here, and they have legal grounds to do so.

11:07The state is sort of in an uphill battle here because, you know, the federal government has the initial evidence from both scenes. And apparently the local officials have said that federal officials are refusing to honor a search warrant that they had to get signed by a judge. So the federal government is withholding the information here. Yes, the federal government is essentially obstructing a criminal investigation. And that is highly unusual. Normally, federal and state governments will work together in trying to gather evidence, even in deciding, like, you know, quote, who will go first in terms of prosecuting the individual.

11:48But that's not happening here. And that's why people are right to be concerned that what the federal government is doing here is trying to cover up what actually happened. This is not, you know, sort of normal protocol. This is them behaving very differently for reasons that appear to be they don't want anybody else looking at what actually happened. The good news is that there is a lot of evidence you can gather outside of what the federal government is refusing to turn over. We should be so grateful to the individuals who are out there filming and providing that evidence, who are willing to testify and talk about what they saw before and after the cameras were on.

12:23That is really important information that can become evidence, right, once it's properly vetted and confirmed. And with these facts, it seems like you could make a prosecution on that information alone. Coming up next on the Bloomberg Law Show, I'll continue this conversation with Georgetown Law Professor Christy Lopez. The Eighth Circuit Court of Appeals was persuaded to freeze a judge's ruling that barred retaliation against the public in Minnesota. I'm June Grosso, and you're listening to Bloomberg. This message is brought to you by Apple Card. Apple Card members can earn unlimited daily cash back on everyday purchases wherever they shop.

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15:29Department of Justice and led the pattern or practice investigations of police departments. Christy, let's turn to the courts for a moment. Because not just in this case, but in many cases across the country, there have been complaints by federal judges that the Trump administration is ignoring orders or skirting orders or, you know, obeying them around the edges, however you want to describe it. And so the chief federal judge has demanded the acting head of ICE personally appear in court on Friday to explain repeated failures to comply with court orders. This might be a situation where the federal government might try to fight this.

16:14They could. The federal government has been very disrespectful to and defiant of the federal courts. they're really relying on the federal court's sort of deference and sense of propriety and hoping that that will keep the federal courts from really pushing all courts but especially federal courts have long given great deference to federal officials and you know giving them chance after chance after chance before actually coming down on them holding them in contempt they could hold people in criminal contempt but they generally don't do this and i think that's largely what the administration is relying on.

16:47I think they also see it's part of their brand to be sort of, you know, to be bullying the courts and to be, you know, to show the powers is more effective than the rule of law. So there's that as well. But I think that what will make the difference here, I think we are all beginning to understand this, and if we didn't already, but what is going to make the difference here is public pressure. That is what's going to determine whether Todd Lyons shows up in court, whether the administration backs off in this area of really egregious immigration enforcement, as in many other areas. In the midst of all this turmoil, the Eighth Circuit Court of Appeals was persuaded by the government to freeze a judge's ruling that barred immigration officers from retaliating against the public in Minneapolis, including detaining people who follow agents in cars.

17:36I thought it was surprising that the Eighth Circuit froze that judge's order that was intended to maintain the peace, basically. I agree. I want to be clear. I haven't read that opinion yet, so I'm happy to check back in once I have. I agree. There doesn't appear to be a strong basis or really any basis to not allow the district court's order to take effect. It was a very mild order. It was not anywhere near what the plaintiffs had asked for. And it does little more than say, no, you really do have to abide by the Constitution when you are policing these protests and when you are enforcing immigration law.

18:16It's really hard to see why the Eighth Circuit wouldn't have allowed that order to stand. Is there another event in our history that resembles what's happening here in Minnesota? Yes. I think we've gone through a number of areas of our history that resemble what's happening here. I think in some respects, the one that comes to mind for a lot of people, and I think is an accurate comparison, is the civil rights movement. The difference there was that in that context, in many ways, the federal government were the protectors rather than the primary instigants of violence. It's broadly understood that the federal government could have done more to protect civil rights protesters and activists than it did, But certainly they weren't seen, generally speaking, as the primary antagonists and, you know, violators of rights.

19:04And here that's oddly flipped. You see the Minnesota governor sending out the National Guard. You see the local police, you know, trying to protect individuals and trying to investigate federal law enforcement who's violating people's rights. That, I think, is fairly unprecedented. So you've seen this dynamic before of just, you know, people trying to speak out against injustice in some of the labor strikes from the late 19th century, early 20th century. You've seen things like that, but I don't think we've ever seen anything like this where you have the federal government, historically, the better protectors of individuals' constitutional rights, being the primary violator of those rights, and state and local governments having to step in and find a way to try to protect people's rights.

19:50Yeah, I'm just wondering what the federal government is thinking when apparently the officers involved in the latest shooting were allowed to continue working, but now they've been placed on administrative leave. It is common practice to put officers who are involved in shootings, you know, formally on administrative leave out of any public interaction during the course of the investigation, especially where there's some indication that force might have been unlawful or a violation of policy. I think the thing to understand here, and this is really important for people to understand, this administration doesn't actually have a problem with how much their immigration law enforcement officers are violating people's rights, how much violence they're using, the way that they are, you know, violating people's rights, you know, splitting apart families and sending them far away and leaving them to find their own way home.

20:46knowingly taking people who are here lawfully, sometimes who are even citizens, and just, you know, we don't care. We'll sometimes say that the cruelty is the point. And I think that holds here as well. I think the cruelty and the violence is the point of how this enforcement is happening. And a year ago, if I'd heard someone say that, I might have thought that it was hyperbolic and overly dramatic. But I think that's exactly what we're seeing. And the only reason that they are starting to hesitate a bit after this most recent killing is not because they've had a change of heart. It's because the country is demonstrating more broadly that they don't like what's going on.

21:27That is the only thing that's going to change the way they're acting because they do not think that there's anything wrong with how they're behaving. In fact, they're intentionally allowing their agents to behave in this way because they want to instill fear in people, because they want to demonstrate how powerful they are because they want to demonstrate how they can violate the law and get away with it. Another surprising thing to me was the statements by Kristi Noem, the DHS secretary, and Bovino that were contradicted by the video that everyone was seeing. Why say something that's demonstrably false?

22:04I think there's two schools of thought on that, and I think they could both be true in different ways and perhaps with different people. One school of thought is that they're saying things that are false about things that are on video in the hopes that the people who support them won't ever go watch those videos, right? And so they'll never find out what actually happened. The other school of thought is that they are saying things that are false, knowing that they will be shown to be false, and then able to demonstrate that they're allowed to say things that aren't true, that are demonstrably not true, and get away with it anyway.

22:38It's part of their trying to make people lose hope, right? Wow, they can do something so awful and then lie about it completely, even though we all can see that's not what happened and nothing happens to them. Nothing happens to this officer. They keep going forward. And so if they're able to get away with that, then they will, in fact, have become more powerful. And so that's why it's so important that people are now actually pushing back and why the only thing that's going to change this is more people pushing back more. They are demoting or however you want to call it. They're taking Bovino off the scene and sending him back to the border.

23:14And Tom Homan is coming in. Homan supposedly has a more targeted approach than Bovino. So might we expect that we'll see less of these aggressive tactics? I wouldn't rely on that. I think Homan has, if you just base on the things that he's said and done in the past, he has the exact same violent and authoritarian tendencies that Bovino did. And so they're just switching people around. Bovino's a target right now. You know, maybe that means something for the long term. It could just be a short term, you know, until things quiet down. I don't think people should feel good at all about Homan coming in.

23:51I think they should feel good that they've had some, they've moved the needle a bit on making the administration do something. but the administration is going to be waiting to see whether sort of moving people around will quiet people down. And what, again, people need to keep the pressure on until the actual behavior changes. And there is nothing about Holman the way he thinks about these issues, what he has done about these issues, what he has said about these issues that said that he has a demonstrably different approach to immigration enforcement. Well, thanks so much for joining me today, Christy.

24:21That's Professor Christy Lopez of Georgetown Law. Support for the show comes from Public. Lately, it feels like there are two types of investing platforms. Some are traditional brokerages that haven't changed much in decades, and others feel less like investing and more like a game. Public is positioned differently. It's an investing platform for people who are serious about building their wealth. On Public, you can build a portfolio of stocks, options, bonds, crypto without all the bugs or the confetti. Retirement accounts, yep. High yield cash, yes again. They even have direct indexing. Public has modern design, powerful tools, and customer support that actually helps.

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