Death During ICE Operation in Minneapolis Underscores, Deepens Immigration Divide

On Wednesday, ICE officers approached a 37-year-old woman driving an SUV who had apparently been blocking Portland Avenue in Minneapolis, Minn. As she drove away, an ICE officer fired at the vehicle, a shot struck the woman in the head, and she died. No matter how you view the videos of the incident, it was a tragedy, but we should all heed the counsel of “Border Czar” Tom Homan and reserve judgment until an investigation is completed and the facts are known.

ICE Operations Under Trump

DHS has run several targeted immigration operations across the United States since Donald Trump replaced Joe Biden in the Oval office last January.

There was an operation in Los Angeles that started in May and continued into the summer, triggering massive protests and resulting in the president calling out the National Guard.

“Operation Midway Blitz” started in early September, and again protests (some violent) ensued. Trump again tried to call out the National Guard in early October, a move blocked by lower federal courts. In late December, the Supreme Court kept that block in place for now.

“Operation Charlotte’s Web” in mid-November focused on the Piedmont region of North Carolina and netted hundreds of removable aliens. It also stirred protests, though on a much lower scale.

On December 2, ICE launched “Operation Catahoula Crunch”, targeting criminal aliens in New Orleans. Again, minor protests ensued.

Then, there’s Portland, Ore. ICE hasn’t launched a large-scale operation there (yet), but protests — once more, many violent — have been focused on an agency facility there since at least late spring.

On June 14, Portland cops declared a riot after “demonstrators used objects to break through a door” to get to officers at that facility. In October, Trump tried to call out the National Guard in the Rose City but was also blocked in the courts.

Minneapolis and the “Largest Immigration Operation Ever”

Which brings me to Minneapolis.

Early this week, it was reported that DHS was sending 2,000 federal officers to the Twin Cities, part of what was termed the “largest immigration operation ever”. According to PBS on January 6:

HSI agents were going door-to-door in the Twin Cities area investigating allegations of fraud, human smuggling and unlawful employment practices. ...

The HSI agents are largely expected to concentrate on identifying suspected fraud, while deportation officers will conduct arrests of immigrants accused of violating immigration law, according to the person briefed on the operation. Specialized tactical units are also expected to be involved.

The operation also includes personnel from U.S. Customs and Border Protection, including Cmdr. Gregory Bovino, [a] person familiar with the deployment said. Bovino's tactics during previous federal operations in other cities have drawn scrutiny from local officials and civil rights advocates.

That day, DHS issued a press release announcing it had “already made more than 1,000 arrests of murderers, rapists, pedophiles, and gang members in Minnesota”.

Those arrests included one “Tomas Espin Tapia, a fugitive wanted for murder in Ecuador and sexual predator”; three Laotian nationals with various convictions for “homicide”, “sexual assault”, “lewd acts with a minor”, “lewd or lascivious acts with a minor”, “kidnapping”, and “armed robbery”; a Liberian national with convictions for “rape, robbery, sexual assault, larceny, obstructing police, [and] assault”; a Vietnamese national convicted of rape and “second-degree criminal sexual conduct with a victim under 13”; and random other drug traffickers and criminal offenders.

The Incident on Portland Avenue

Which brings me to the January 7 incident on Portland Avenue in Minneapolis.

Published reports are sketchy and somewhat inconclusive, but in an interview that day, Minneapolis Police Chief Brian O’Hara told NPR that:

the information that we had preliminarily at the scene remains the same, that this is a middle-aged white woman who was not the target of a preplanned law enforcement activity, that this is a woman who was — her vehicle was blocking the roadway. And then the immigration agents got into an encounter with her.

NBC News provided its assessment of two separate videos that have emerged of that encounter, one of which shows agents emerging from a pickup truck pulling up to the SUV in the street as someone shouts “get the f--- out of our neighborhood”.

In that video:

Agents get out of the truck, and one walks up to the SUV and yanks on the driver’s door handle, ordering the driver to get out. The SUV reverses.

Another agent is standing near the front of the SUV as it pulls forward. The agent appears to draw his firearm, and as the SUV drives forward in his direction, he moves backward, shooting into the SUV as it drives off.

As per NBC News, in the other video, from a different angle, the “agent” (likely an ICE Enforcement and Removal Operations officer) who drew his weapon “appears to be knocked back as the SUV drives forward before it crashes into a parked car and hits a light pole”.

The outlet also quotes DHS Secretary Kristi Noem, who noted “The very same officer who was attacked today had previously been dragged by an anti-ICE rioter who had rammed him with a car and dragged him back in June. He sustained injuries at that time, as well.”

It appears the decedent was protesting the ICE operation in the area. Reports indicate her wife was present on the scene, and was heard to say, “I made her come down here, it’s my fault.”

A tweet from Reuters ostensibly shows the wife in the immediate aftermath of the incident:

Dueling Press Statements

Noem spoke in the aftermath of the shooting, describing the decedent’s actions as an “act of domestic terrorism” against ICE and arguing that she “attempted to run them over and rammed [the officers] with her vehicle. An officer of ours acted quickly and defensively, shot, to protect himself and the people around him.”

Minneapolis Mayor Jacob Frey responded on CNN in more earthy terms, telling host Anderson Cooper:

the narrative ICE is spinning immediately after this was that this was purely self-defense, and that the act by the victim was some sort of domestic terrorism — that, I’ll say it again, is bulls— . . .. That is bulls—. The way they’ve been conducting themselves is also bulls—. And we all need to be very clear-eyed about what’s happening. ... Because, by the way, this is not just about Minneapolis. ... This is about the endurance of our republic. The things that are taking place are not just illegal. They are unconstitutional.

A more measured tone was taken by Trump “Border Czar” Tom Homan, who after being shown one of the videos told anchor Tony Dokoupil on “CBS Evening News”:

I'm not going to make a judgment call on one video when there's a hundred videos out there, I wasn't on the scene. I'm not an officer that may have body cam video. ... It would be unprofessional to comment on what I think happened in that situation. Let the investigation play out and hold people accountable based on the investigation.

The Basics

Under 18 U.S.C. § 111(a), it’s a federal crime to “forcibly assault, resist, oppose, impede ... or interfere” with federal law enforcement officers while they are “engaged in the performance of official duties”.

If such action is “simple assault”, it’s a misdemeanor offense carrying a fine and/or imprisonment of up to a year, while “in all other cases”, a violation of section 111(a) is a felony subject to three years in jail and/or a fine.

A September 2018 DHS memo sets forth the department’s policy on the use of force. Consistent with constitutional law and Supreme Court precedent, it explains that DHS law enforcement officers (LEOs):

are permitted to use force to control subjects in the course of their official duties as authorized by law, and in defense of themselves and others. In doing so, a LEO shall use only the force that is objectively reasonable in light of the facts and circumstances confronting him or her at the time force is applied. [Emphasis in original.]

“Objectively reasonable” force is not a “one-size-fits-all” standard, as the Supreme Court made clear in its unanimous 1989 opinion in Graham v. O’Connor:

The "reasonableness" of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight. ... "Not every push or shove, even if it may later seem unnecessary in the peace of a judge's chambers," violates the Fourth Amendment. The calculus of reasonableness must embody allowance for the fact that police officers are often forced to make split-second judgments — in circumstances that are tense, uncertain, and rapidly evolving — about the amount of force that is necessary in a particular situation. [Internal citations omitted.]

The Court in Graham was also quick to add that “the ‘reasonableness’ inquiry in an excessive force case is an objective one: the question is whether the officers' actions are ‘objectively reasonable’ in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation” (emphasis added).

I make these points at the risk of seeming too bloodless and “clinical”. This is a tragedy for all involved, the decedent, her family, and the officer who fired the shots. Few want to be injured, and no officer wants to be responsible for injury to or the death of another.

But if our Republic is “a government of laws, not men” as John Adams famously proclaimed, we are all expected to follow those laws and to subject ourselves to lawful authority, including the decisions of courts.

Every American has an inherent First Amendment right to “peaceably assemble” and speak freely, and consequently has the right to engage in peaceful protests.

Those rights are not unfettered, however, and as 18 U.S.C. § 111(a) makes clear, they do not permit any of us to interfere with law enforcement actions. There are times and places for everything, and the middle of an arrest is neither the right time nor the right place.

Federal LEOs have a responsibility to enforce federal laws, and if you don’t agree with the laws they are enforcing, your recourse is to your First Amendment right to “petition the Government for a redress of grievances”, not physical impediment of specific arrests.

“Get the F*** Out of Minneapolis”

In that vein, I should note that Mayor Frey also told ICE at his press conference to:

Get the f*** out of Minneapolis. We do not want you here. ... People are being hurt, families are being ripped apart, long-term Minneapolis residents that have contributed so greatly to our city, to our culture, to our economy are being terrorized and now somebody is dead.

It’s unclear whether Frey was referring to Tapia, the three Laotians, the Liberian, or the Vietnamese national whose cases were detailed in the DHS press release, but with due respect to the mayor, such sentiments are likely why his constituents believe they have the right (if not the obligation) to impede ICE enforcement officers by blocking his city’s streets with their vehicles, notwithstanding the restrictions in section 111(a) of Title 18 of the U.S. Code.

It may be good politics for him, but in this instance, he looks like one of the “men” Adams warned us about.

If Mayor Frey wants ICE to cease immigration enforcement, in Minneapolis or anywhere else, he too can petition the federal government for redress of his grievances, or alternatively could run for Congress, which the Supreme Court has long held to have plenary power over such issues.

Maybe the latter was the point of his earthy tirade.

My old law school criminal procedure professor, Jonathan Turley, had his own take on Frey’s comments, referring to him and others as “traffickers in rage, feeding an addiction in the hope that these mobs will propel them further in power. Law enforcement officers are simply expendable when political advantage is at stake.”

For what it’s worth, Frey did later (sarcastically) apologize to those who took issue with his expletive-laden rant for having “offended their Disney princess ears”.

Back to the Czar

Homan is a career law-enforcement official, and understands the use of force rules better than anybody. It’s therefore no surprise that of all the public officials weighing in on this incident, the “czar” is the one advising all to reserve judgment until an investigation is completed. That’s how things should always be done in a Republic of “laws, not men”.