DOJ Argues Protesters Don’t Have Constitutional Right to Observe Immigration Agents

A Department of Justice attorney said in a Minnesota federal court Tuesday that there is no First Amendment protection for observing police.

The assertion came during a hearing in the lawsuit Minnesota protesters brought against the Trump administration claiming immigration agents arrested, pepper sprayed and intimidated them without cause. While the lawsuit preceded the fatal shooting of Renee Nicole Good, protesters cited the incident in asking the federal judge to temporarily stop federal agents from retaliating against them.

U.S. District Judge Katherine Menendez said she would rule on the emergency petition by Thursday or Friday morning. Menendez, who was appointed by former President Joe Biden, is also overseeing Minnesota’s lawsuit to end the surge of immigration agents in Minneapolis.

She questioned DOJ attorney Jeremy Newman about the legality of federal law enforcement stopping or drawing their weapons on protesters following in their vehicles, as long as they followed traffic laws.

“This overall climate of following leading to dangerous activity, I think it’s reasonable for officers to be concerned about their safety,” Newman said.

The government attorney relied on a 2023 ruling in the U.S. Court of Appeals for the 8thCircuit to support his argument that observing and recording police is not a clearly established First Amendment right.

The ACLU of Minnesota, Ciresi Conlin, Forsgren Fisher, and Riach Law brought the lawsuit on behalf of six protesters. Kyle Wislocky, an attorney for the plaintiffs, said that protesters following immigration agents’ vehicles were exercising their right to access information about the government’s public movements.

“It’s very clear that this is an ongoing emergency,” he said.

Amid the nationwide protests condemning ICE agent Jonathan Ross’ shooting of Good, Homeland Security Secretary Kristi Noem announced in a Sunday interview on Fox News that hundreds more agents would go to Minneapolis in addition to the deployment of 2,000 the first weekend of the year.

Judge Menendez expressed frustration with the DOJ attorneys for not submitting police reports, body camera footage or statements from ICE agents involved in the incidents with the named plaintiffs. DOJ only submitted a declaration from David Easterwood, ICE’s acting director in St. Paul, but Menendez said she didn’t know how many layers of hearsay it involved.

“Why doesn’t that weigh pretty heavily against the factual narrative put forth by the defendants?” the judge asked.

Newman blamed the heavy volume of declarations that plaintiffs submitted.

“We were responding to it over the holidays,” he said. “We did the best we could.”

The judge signaled she might not give plaintiffs a broad ruling reining in agents’ tactics toward all peaceful protesters. She expressed wariness toward a ruling that would expand beyond the six named plaintiffs because appellate courts had stayed previous rulings covering a class of protesters.