Trump-appointed judge pokes hole in ICE arrest protocol

ST. PAUL, Minn. (CN) — The American Civil Liberties Union told a Minnesota federal court Wednesday that immigration agents are using race as a proxy to target certain ethnic groups during warrantless stops.

By targeting individuals based on perceived ethnicity rather than specific evidence, the nonprofit group claims the government has created an environment of “sheltering in place” where residents avoid public life to escape the threat of unlawful detention.

“We do not live in a country where people are required to show their papers to law enforcement,” Huddleston said. “Refusing to supply proof of citizenship is not grounds for probable cause … refusal to answer furnishes no basis of arrest.”

Wednesday’s hearing stemmed from a class action brought by Minnesotans who claim Immigration and Customs Enforcement agents targeted them for the color of their skin, with no other probable cause.

“The policy is systematically lowering the threshold for stops from reasonable suspicion to no basis at all,” ACLU staff attorney Kathryn Huddleston said, pointing to 36 declarations from individuals detailing excessive force by agents, including headlocks, pepper spray and instances where agents tackled, handcuffed or detained people even though they offered proof of citizenship.

The Justice Department argued ICE’s tactics are entirely lawful, pointing to aJan. 28 memo signed by ICE Director Todd Lyons giving ICE agents the discretion to detain those who could reasonably be assumed to be in the country illegally.

According to the memo, warrantless arrests are only legal if the targeted person is “likely to escape” before a warrant can be obtained. However, the ACLU said agents are arresting people with deep community ties who pose no flight risk.

U.S. District Judge Eric Tostrud pressed Justice Department attorney Sean Skedzielewski on ICE’s policy definition of “likely to escape,” questioning the constitutionality of giving ICE agents the authority to detain someone if they suspect they might leave the area.

“This is, ‘you’re escaping if we don’t think we’re going to find you in the same place in a couple of hours,’” the Donald Trump appointee said. “That would apply to me on this bench — I’m not going to be here at 5 p.m.”

The ACLU argues that this low bar for arrest has allowed agents to rely on racial profiling. In its pursuit of a preliminary injunction on these enforcement practices, the nonprofit pointed to data showing that roughly 95% of Somali Minnesotans and 76% of Latino Minnesotans are U.S. citizens — making race a statistically poor proxy for immigration status.

The Justice Department said any injunction is an “astonishing” attempt to obstruct federal law enforcement. Skedzielewski argued that, because the plaintiffs haven’t had encounters with ICE since their initial experiences, any threat of future harm is “mere speculation” — an argument strengthened by the recent announcement ending Operation Metro Surge in Minnesota.

“The concern that plaintiffs had were ‘at large’ stops and arrests as part of the metro surge operation,” Skedzielewski said. “Now that ICE is able to go into jails and prisons, the risk for U.S. citizens is diminished.”

On Tuesday, all six witnesses confirmed they’ve had no involuntary encounter with immigration agents since their initial stops.

“The likelihood of a future stop, whatever that might be — I’m not saying it’s zero — but it’s extremely low,” Skedzielewski said, noting that even if the plaintiffs were stopped again, there would be no way to prove the stop is unlawful.

Tostrud somewhat agreed, appearing wary of granting relief to the ACLU since the operation has ended.

Regardless of the written policy, the ACLU said statements from high-ranking government officials, combined with the actual actions taken by immigration agents on the streets, show a clear disconnect.

Skedzielewski argued it “defies reason” to suggest that officers “wake up in the morning,” check Twitter for what Homeland Security spokespeople are saying and ignore formal agency memos.

He**** also pointed out that many relevant incidents were consensual encounters where agents verified citizenship and left. Other instances, he said, included individuals fleeing from agents, creating a reasonable suspicion for a stop.

Tostrud grappled with the legal application of the so-called “consensual” encounters, pushing back when Skedzielewski said an officer approaching someone on the sidewalk doesn’t constitute a “stop.”

“If I accept that there’s an idea of this thing called a consensual encounter … what I hear you saying is that normal constitutional protections against singling people out based on race or ethnicity don’t apply,” Tostrud said, taking Skedzielewski’s skirting of the question as a yes.

The judge also noted the government has provided no testimony or documentation from the officers involved that would typically be expected in a case like this. The Justice Department simply said it hasn’t had time to look into that.

“Defendants have had ample time to develop the record,” Huddleston said. “What they have suggested to this court is the absence of evidence in their argument is enough to deny an injunction … they are displaying a disregard for legal violations.”