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Notes -
It's interesting that you preceded this little tidbit with examples of four non-ICE being accused of ICE. How many people accused of being ICE actually were ICE? If you're implying that a certain false positive rate is acceptable, at least show that the behavior you're complaining about is above that rate.
At most 2000 (i.e. every one of them), for an error rate of 0.2%. It's three times the rate just with those anecdotes.
Wait, there's only 2,000 ICE agents? Or just 2,000 in MN?
Just in Minnesota (mostly Minneapolis, AFAICT). They announced another thousand last I heard, but I don't know if they're there yet.
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Are you accounting for repeated encounters? A person is presumably removed by ICE only once, while protesters repeatedly interact with ICE agents, allowing for multiple accusations of being a part of ICE.
The second encounter presumably follows from the first. If an officer was identified once then harassed a hundred times, I'd count that as one true positive.
But ICE is going to different neighborhoods. While I would expect repeat harassers/protestors for a given geographic region, I would also expect a lot of churn from people only sticking their necks our for their own neighborhood and local community. I find it extremely plausible that you will get multiple true positives here as a result.
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The irony of you mentioning "equivocation" further down this thread, as any equivocation—to the extent that it eventually occurred—was initially enabled here when you made this comment and the false equivalence it contains. You discuss ICE and anti-ICE false positive rates as if they're different sides of the same coin, yet:
ICE false positive: ICE was wrong in incorrectly arresting someone.
ICE true positive: ICE was right in correctly arresting someone.
Anti-ICE false positive: They were wrong in harassing someone that had nothing to do with ICE.
Anti-ICE true positive: They were wrong in harassing an ICE officer off-duty or wrong in obstructing an ICE officer on-duty.
There's not a "positive" for which anti-ICE can be in the right. Furthermore, ICE is right X% of the time and wrong (100-X)% of the time, whereas anti-ICE is wrong 100% of the time.
You could take this even further:
Anti-(good-ICE)-true-positive: Protesters harassing ICE while they are conducting an operation lawfully
Anti-(bad-ICE)-true-positive: Protesters harassing ICE while they are conducting an operation unlawfully
Unless ICE has a 100% conduct-the-operation-lawfully rate, at least some of these will A(BI)TPs.
That'd still be wrong of anti-ICE.
Whether an arrest is unlawful is decided in the courtroom, not by a mob. Resisting an unlawful arrest is generally unlawful in most states, including Minnesota. Even in states where resisting unlawful arrests is legal, the advice on attorney websites is to cooperate temporarily and if necessary, litigate later. An "unlawful" arrest may be more lawful than you think, and suspects often incur (more) crimes while resisting arrest. I imagine a similar principle applies to obstruction, if not more so due to the potentially greater numbers involved.
Absolutely agreed.
But it is also lawful to protest a police action without obstructing it. I’m sure there are examples of protests in Minnesota that are & aren’t.
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That's simply a value judgment that doesn't get us anywhere. Being anti-ICE is only "wrong" when the activity in furtherance of that position breaks the law. You may not like the fact that people are protesting, recording their activity, or warning the community of their presence, but all of these things are both legal and constitutionally protected.
One of my values is that incorrect arrests are bad, although incorrect arrests are sometimes incurred in the "furtherance" of correct arrests, and there's a tradeoff between incorrect and correct arrests if one seeks correct arrests.
Another one of my values is that harassing people is bad, whether or not the person's occupation is law enforcement—if they're law enforcement, this especially goes while they're on duty. Perhaps your values differ on this front.
Either way, let’s play along and evaluate whether anti-ICE breaks the law in the "furtherance of [their] position" with the evidence that we have. I figured I'd take a look myself at Minnesota statutes given sometimes you might not have done your legal due diligence before commenting.
I was using "harassment" somewhat colloquially, but there's Subdivision 1. of Minnesota's Disorderly Conduct:
Where (3) of Subdivision 1. is:
I would say impeding the path of an individual or group of individuals, blowing loud whistles in front of them, following them and shouting things like "FUCK YOU NAZI," following them and blowing whistles at them and honking at them, would qualify as "noisy conduct" or "abusive language" that could be reasonably interpreted as an attempt to "arouse alarm, anger, or resentment in others."
There's also statutes on harassment per se:
Likewise, impeding the path of an individual or group of individuals, blowing loud whistles in front of them, following them and shouting things like 'FUCK YOU NAZI,' following them and blowing whistles at them and honking at them, could be reasonably interpreted as an attempt to "follow[] monitor[], or pursue[] another, whether in person or through any available technological or other mean... with the intent to kill, injure, harass, or intimidate another person." To intimidate would already qualify.
Then there's Obstruction. As (1) states:
Once again, doing things such as the aforementioned "impeding the path of an individual or group of individuals, blowing loud whistles in front of them, following them and shouting things like ‘FUCK YOU NAZI,’ following them and blowing whistles at them and honking at them," would apply, much less hindering the lawful execution of any legal process by pathways such as driving your vehicle at them.
I would certainly feel hindered and obstructed at my job if a crowd showed up to do things including, but not limited to—blocking my path, surrounding me, and/or blowing whistles in my face.
The state legislature can pass all the laws they want, but their application is limited to the bounds of the Constitution. Impeding the path of law enforcement may rise to the level of obstruction depending on the specific circumstances, but blowing whistles and shouting insults are expressive activities that don't fall within any exception to the First Amendment. The Supreme Court has already addressed this directly, and since they've already ruled that Nazis marching through a neighborhood of Holocaust survivors and members of the Westboro Baptist Church yelling insults during soldiers' funerals are protected speech, it's safe to say that people blowing whistles around ICE agents isn't going to cut it.
You may not like it, but unless the Supreme Court finds Minnesota’s Disorderly Conduct, Harassment, or Obstruction laws are in violation of the Constitution, Minnesota’s laws on those three fronts stand and are enforceable as such.
Fortunately, for leftist protestors who harass, obstruct, and create disorderly conduct—behaviors such as exhibited by the "mostly peaceful" protestors we saw in OP’s videos—they have many lawyers out there who are sympathetic and will carry water for their causes, including chief prosecutors who may or may not decide to prosecute.
And, to the extent the SC addressed “this” directly, it explicitly highlighted that behaviors, including but not limited to, those that fall under disorderly conduct or “fighting words” can still be punished:
Sounds awfully familiar with regard to the videos OP posted, as well as other videos of anti-ICE agitation. The Court’s main hangup was the word “interrupt” amidst the phrase:
The Court’s opinion specifically reinforced it was upheld that Colten’s conduct in Colten v. Kentucky did not fall under protected speech for disorderly conduct concerns:
Again, sounds awfully familiar with regard to the videos OP posted, as well as other videos of anti-ICE agitation.
Don’t know if you have a specific Court Opinion in mind with regard to purported ‘Nazis” and “Holocaust Survivors.” I did take a look for a bit as to what may constitute WBC activity nearby a military funeral and which incurred court rulings.
Insofar as you’d like to evoke something like WBC protesting near military funerals—only one popped up, the infamous case of Snyder v. Phelps. Where the WBC activists, not that these were prerequisites for anything:
1. Were 1,000 Feet Away
2. Did not disrupt the funeral’s activity
3. Ceased their activities prior to funeral
4. Were not seen or heard from the funeral site
5. Were not hindering the actions of LEO
It’s safe to say you don’t do your homework before commenting. It’s also safe to Notice your repeated attempts at minimizing what anti-ICE people were doing despite video evidence.
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I realize that you're the lawyer and I'm not, but I didn't think that harassing people (as we see in these videos) is constitutionally protected.
As I said in another comment, if Nazis marching through the neighborhoods of Holocaust survivors and the Westboro Baptist Church harassing mourners during the funerals of soldiers is constitutionally protected, this certainly is.
What about Nazis accosting and mugging random passersby to foce them to show their arms to see if they have certain tattoos?
What about driving a truck outfitted with concert grade loudspeakers through a Jewish neighborhood blaring Hitler speeches?
Forget about Nazis doing it and you'll have your answer. If they're using force or threat of force then it could be illegal. If they're merely asking then I'm not even goign to bother with an analysis of the First Amendment laws because, insofar as I'm aware, no state in the Union has laws that make it illegal to talk to strangers. For your second example, again, forget about the Jews and the Hitler speeches. If there is an applicable municipal noise ordinance and you can prove that the driver violated it, then they can be charged with the noise violation.
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Those are easily distinguishable. Yes, if the anti ICE people went to the local ICE HQ and did those things, then it would clearly be protected speech.
However, if anti ICE follow ICE and try to alert illegals to I E presence to thwart ICE from apprehending illegal aliens, then the anti ICE protestors are now obstructing officers. The examples you gave are examples of people being obnoxious but had nothing to do with interfering with police work. So they prima facie don’t control.
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Is it really constitutionally protected to warn a felon of the presence of the police? Like let's say Alice gets a phone alert that a white murderer who killed three black kids escaped from prison. Alice sides with the murder because she's a white supremacist. Alice later sees several police cruisers on a nearby street. Worried that her favorite convict is nearby and will be returned to prison, she starts blowing a whistle and making a ruckus to help the convict escape.
That is constitutionally protected speech?
Your scenario is a bit vague so I'll dress it up for you: If Alice feels strongly about the wrongness of the murderer's conviction and subsequent incarceration and she decides to engage in a boisterous on-woman protest on a street corner during which she yells words of encouragement for the fugitive and expresses hope that he will escape justice, then yes, she would be engaging in constitutionally-protected speech. As repugnant as one may find her views, opinions about the appropriateness of criminal convictions are a fairly common subject of public protest, and the fact that the police may find them distracting doesn't exempt them from constitutional protection. And even then, this case would still be somewhat stronger than what's going on with ICE, where the protestors don't even know the identities of the people ICE are looking for, or indeed if they're even looking for anyone (Renee Good was shot while ICE was returning to headquarters). They're just generalized warnings about law enforcement presence, and are as illegal as flashing your brights to warn a fellow motorist about a speed trap.
You seem to be missing the point that thy aren’t just protesting generally but doing so in ways to try to prevent ICE from doing their job. Your hypo is of Alice standing on a random corner.
Here Alice is following ICE and making noise for the express purpose of making it harder for ICE to conduct their legal duty of apprehending illegals / warning illegals so illegals can flee.
The activities are of a different nature from your hypo and caselaw.
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Blowing a whistle is not necessarily constitutionally protected though, there can be reasonable restrictions on noise levels.
Regarding City of Houston v. Hill, striking down a law that is too broad does not mean that none of the activities included in the law could be constrained by law.
The behavior of these people does not seem constitutionally protected to me. They are, in a coordinated way, mobbing officers of the law in the process of enforcing the law for the purpose of helping people escape, in such a way that they are actually successful a lot of the time. https://tiktok.com/@raebaebae28/video/7596446605474057527?_r=1&_t=ZP-93BispJ7Wlb
I hope a case like this goes up to the Supreme Court so we can get a clear ruling on this.
It could potentially violate noise ordinances, yes. But the way the Minneapolis ordinance is worded makes it clear that it almost certainly doesn't violate the law there:
There are obvious evidentiary problems here in that you have to know what the ambient noise level is and whether the sound exceeds it by the specified amount, but the problems go beyond ones of evidence; the statute is worded in such a way that there is no violation without a measurement. This could be a case of bad drafting, but if you look at noise ordinances generally they seem aimed at specific problems like noise emanating from point sources or adjacent apartments. They aren't really designed for intermittent loud noise coming from outside.
At least in the present situation there's no chance of that happening. Federal law requires that any interference with law enforcement be "forcible", and Minnesota caselaw does so as well. On the state side there are some limited exceptions, but warning people of police activity is specifically exempted. I can't speak for other states, but nobody in Minneapolis is able to be prosecuted for this.
But where is the line here? A lookout for a bank robbery is presumably an accessory to the crime, even though his only role is to use his constitutionally protected speech to alert the other robbers to the police.
A lookout for a gang is presumably an accessory to a crime if they whistle out as soon as a police officer comes onto gang territory, even if they don't know which specific crime the police officer is investigating. Or is that protected speech but the lookout for bank robbery isn't? What is the deciding factor?
I'm going to loop in @zeke5213a because this response acts as one for his comments as well, as I think there's some conflation going on here. Before we get going I want to point out that the original topic of this discussion was relative base rates for certain behaviors, and someone's assertion that opposing ICE was always wrong, to which I responded that that was simply a value judgment and that from a neutral perspective opposing ICE was only wrong if those doing the opposing were breaking the law. From there the discussion seems to have morphed into whether the protestors in Minnesota are breaking any particular laws. To that point, I will concede that there are probably some protestors who are unambiguously breaking the law, and you can count those into whatever base rate discussion you want, but I get the impression that nobody really cares about that anymore and is more concerned about the prospect that the protestors in Minneapolis are, en masse, committing any crimes. And I want to make it clear right now that that makes for a more interesting discussion than whatever stemmed from the half-forgotten base rate comment I tossed off last night before dinner, and I'll be addressing that question and I could care less about base rates at this point, and I get the impression that neither of you care much about that either.
With that out of the way, there's really a two-step analysis involved in all of these questions. The first step is to ask whether the speech in question violates a particular law. The second step is that, if the answer is yes, to determine if the enforcement of that law is precluded by the First Amendment. The conflation I'm referring to comes from the specific conduct of the ICE protestors, which seems to have two components:
That being said, I tried to focus on the First Amendment question, because laws vary across jurisdictions but the Constitution is a showstopper. The general rule here is that speech is protected unless it falls into an exception, and I couldn't find any applicable exceptions. What it seems like you're bringing up is the criminal speech exception, which is an exception for speech that is integral to criminal conduct. When discussing criminal conduct, it makes sense to think of various tiers of culpability. I'll use the bank robbery example because it's the most clear-cut:
Principle: This is what most people think of, i.e., you're the one walking into the bank and pointing a gun at the teller. Pretty much everyone understands that this creates liability for robbery or whatever the relevant crime is.
Accessory: The liability here is the same as it is for the principal, and it includes anyone who was involved in the crime prior to or during its commission. In your robbery example, the lookout is aware that the crime is going on and is actively participating in it. If you're guilty at this level, you're charged with the underlying crime, in this case robbery. Though liability is the same, some people may think it isn't or shouldn't be because the defendant played a limited role in the crime.
Accessory After the Fact: This is its own thing and isn't charged as part of the underlying crime but as a stand-alone offense. This liability applies when someone who wasn't involved in the planning or commission of the crime but has knowledge of it provides one of those involved assistance in avoiding capture. If the bank robbery lookout went to his friend's house and told him what happened, and the friend let him lie low at his house for a couple days and arranged for a ride out of town, the brother could be charged as an accessory after the fact, but not with robbery. there are three reasons why this wouldn't apply to the ICE protestors. I'll say as a preliminary that this isn't actually charged very often (it's most often used as leverage to get cooperation) and my cursory Google research revealed very little. What I can tell you from experience is that I've never heard of anyone being charged with this based on a communication alone. Sometimes the communication is part of the evidence, but those are cases where substantial other assistance was also provided. I certainly haven't seen any indication that the activity would override First Amendment concerns, though it is certainly possible. The second problem with applying it to ICE protestors is that it requires that the defendant have knowledge that a crime was committed and attempt to assist a specific person accused of that crime. I can almost guarantee you that very few of the ICE protestors even know the names of the targets let alone know what crimes they may have committed, which brings me to my third point. Much has been made about deportation actions being civil and not criminal, and while this is usually irrelevant to the conversation, this is one of the times when it matters, because, even if the first two concerns weren't a problem in a specific case, you can't be an accessory after the fact to a non-crime. If it were US Marshals trying to execute a warrant for illegal entry, then it would be different, but they don't do that because then they would have to give the guy a lawyer and be subject to heightened procedural safeguards. There are simply too many complexities here to make this something worth pursuing.
Obstruction/Impeding: This is the level in which the authorities don't have to prove that an underlying crime was committed, just that the legal process was interrupted in an impermissible way. We can forget about any liability at the Federal level, because the statutes simply don't cover it. Charges relating to impeding Federal employees (the once ICE agents most often cite when trying to get protestors to back off) explicitly only include forcible actions. The Obstruction of Justice statute includes an enumerated list of specific activities, none of which the protestors are known to engage in. At the state level, the statute looks more promising, as it doesn't specifically contain any language that would preclude any of the protestors' activities, but the case law interprets the statute as only applying to physical obstruction outside of very specific circumstances that are unlikely to apply. The state courts also specifically rejected the idea that warning someone of their impending arrest was prohibited under the statute, ruling that the obstruction had to be directed at law enforcement and not third parties.
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There's a review on the history of such speech in section 2(a) of this paper.
Ok, but the standard is Brandenburg and Brandenburg says you can't incite imminent lawless action. Evading the police is lawless action, and alerting criminals to police is inciting them to flee.
In your example Alice isn't inciting lawless action, the murderer is going to try to escape regardless. At best, she's aiding or facilitating it, which isn't squarely covered by Brandenburg.
If you care to read the section aptly titled The Existing Crime-Facilitating Speech Cases is a fairly comprehensive survey of cases on it.
Is a posted lookout for a robbery not committing a crime because them alerting the thieves is protected speech?
OTOH blinking your brights to warn of an oncoming speed trap is.
So much here depends on the analogy chosen.
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Would you like to specify which case you think matches Alice's example? Because the ones that match most closely take my side, for instance:
and
At most your source is saying there's a complex history of caselaw here and the Supreme Court hasn't ruled on this action specifically.
The very next sentence is
I agree, the caselaw is complex and there isn't a definitive ruling one way or the other. In particular, I don't think Brandenburg is deciding here, it's just an unresolved question.
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Do you believe "warning a felon of police presence" is the best analogy for the average case of people warning illegal immigrants about ICE? Isn't unlawful presence a civil offense, and a first offense illegal entry into the US a federal misdemeanor, so nowhere near as bad as a felony from a legal standpoint?
If you compared it to another non-felony, like having the fines from an overdue library book going to collections, do you believe that warning your buddy that a debt collector is going to their house should not be allowed under the First Amendment? Even if you think such a warning is anti-social and breaks the social contract of paying fines or debts that you accrue, surely you can see that the choice of analogy biases the analysis here?
Unlawful entry is criminal, not civil, under 8 USC 1325 carrying a maximum prison sentence of up to six months on the first offense (higher on subsequent offenses). That makes it a Class B misdemeanor (18 USC 3559).
So misdemeanor, no probs right? Still way worse than a library fine, but less than a murder. But a significant number of people ICE targets are felons, as in having committed a crime inside the US which they have been found guilty of. And a significant number of those who are not are guilty of committing crimes in their home countries. ICE's method in Sanctuary Cities is largely to go to locations where released criminals are, arrest the criminal, and grab anyone else there who shouldn't be here.
Cato (a pretty hostile source) says:
Note they say convictions, many of those without convictions have pending criminal charges. And then, as they say in the headline, only 5% have violent convictions.
So let's take that smallest number, 5%. You only have a 5% chance each time you mob ICE of preventing a violent convicted felon from being deported. If you make a habit of it, say you interfere in 10 arrests, you have at least a 40% chance of having interfered in the arrest of a violent felon. Great work!
Edit: I changed it to "At least 40%" because from my understanding, ICE often targets violent felons, and then catches others unlawfully present. So this is kind of a floor, the likelihood of a violent felon being caught in any given raid is likely higher than 5%.
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No. You can’t equivocate law enforcement with mob behavior. You’re trying to compare false positives with legitimate law enforcement with false positives in the disruption of said law enforcement.
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I agree that certain false positive rates are acceptable when enforcing the law (up to but not past the point of conviction/sentencing at least). I disagree that certain false positive rates are acceptable when forming a mob. This is not hypocrisy.
But the problem isn't in the false positive rates, the problem is the methodology of accosting random people in public. I can point to official statistics about ICE to demonstrate that this is not their methodology. I do not have comparable statistics for Anti-ICE protestors, but I can point to them literally doing the methodology they accuse ICE of in broad daylight.
There's a degree of equivocation though. The worst thing the mobs you described did was mildly irritate people for periods lasting up to five minutes (if I'm being generous). The feect on one guy was that there was a parade of cars behind him honking, which happens to anyone who drives in rush hour on a daily basis. It's not nothing, but it isn't in the same league as being detained for a day or more. The acceptable false positive rate you're really looking for is the number of people who were accosted by ICE but weren't detained.
I have grown convinced in the last couple of weeks that one of the defining characteristics of being on the left is a total lack of a theory of mind.
Mildly irritated? I can think of a few ways that I would feel if I were surrounded by a mob directing hostilities at me, and I don't think "mildly irritated" would describe any of them. "Legitimately fearing for my personal safety" would probably be a much better description. That seems to be not only a reasonable thing to feel in that situation, but also, the actual intent of the people engaging in this behavior.
As a resident of the Minneapolis area these sorts of scenes are the reason I will not go into Minneapolis for the foreseeable future, simply because I would feel absolutely justified in drawing a firearm to defend myself, but the "jury of my peers" would consist entirely of people like you who apparently think that I'm only supposed to be "mildly irritated" that a group of angry people have surrounded me.
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That would be closer to analogosity, but I don't think it quite reaches; someone hassled but not detained by ICE still has it worse, because of the implication.
"Because of the implication" cuts both ways. The mob is perfectly capable of attempting murder, just look at what happens to Jake Lang yesterday.
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And past it too - in a lot of cases, we won't have definitive proof, and part of that means that we will occasionally put the wrong person in jail.
Yeah, but I'm slightly less ok with that. Not 100% less ok, just slightly and it isn't really necessary to the point if we're comparing false positives on detainees.
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In that case it doesn't matter if the mob is harassing or assaulting ICE or non-ICE folks.
Which implies that the examples you gave are not relevant.
The examples I gave in the OP had nothing to do with a false positive rate. I'll repeat:
You wrote:
I'm sure ICE has done exactly this -- going to a place they suspect removable aliens to be present and demanding evidence.
I'm sure ICE has other operations where they target specific removable aliens on which they have prior information too.
Seems very similar unless you are really resting the justifiability argument cited.
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Agreed. The same generosity however is not applied to ICE
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