Breaking: Judge hits ICE agents with brutal news - Brian Tyler Cohen

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Legal breakdown episode 662: Judge bars ICE from using aggressive tactics against protestors.

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BTC: You're watching the Legal Breakdown. Glenn, we've got some bad news for ICE. Can you explain what just happened in court?

GK: Yeah, Brian. Bad news for ICE for sure, but frankly, good news for peaceful protesters, journalists, and I would say democracy writ large. A federal judge, Michael Simon, in Oregon, just ordered that ICE not be permitted to, I don't know, gas peaceful protesters use chemical or projectile munitions against peaceful protesters, journalists who are gathering regularly outside an ICE facility in Portland.

And what I want to do is kind of set it up for our viewers because here is what these people were trying to do. And here is what Judge Simon said. He said, "In this class action, plaintiffs and all class members seek to exercise their first amendment rights to speak, gather news, and protest lawfully and peacefully at and around the Immigration and Customs Enforcement Building located at a particular address in Portland, Oregon."

And I think what's most notable about this lengthy opinion in which Judge Simon grants the petitioner's request for a TRO, a temporary restraining order, basically prohibiting excessive force by federal agents. Here is how he opens this order. He says, "In a well-functioning constitutional democratic republic, free speech, courageous news gathering, and nonviolent protest are all permitted, respected, and even celebrated. In an authoritarian regime that is not the case. Our nation is now at a crossroads. We have been here before and have previously returned to the right path, notwithstanding an occasional detour. In helping our nation find its constitutional compass, an impartial and independent judiciary operating under the rule of law has a responsibility that it may not shirk. For that reason, and as more fully explained below, the court grants plaintiff's motion for a temporary restraining order.”

And Brian, the reason I read that is because the federal judiciary is getting more and more forward-leaning in not just sawing the factual and legal wood in front of it, but in saying we recognize that we have a democracy in crisis. Why? Because of a runaway, lawless, abusive Executive Branch and the courts are not simply just handing down rulings in cases. They're setting the tone, they're setting the agenda and they're letting, you know, Donald Trump and his corrupt minions know that the federal courts will not effing stand for it. And you know, I think it's high time the federal judiciary not just rule against the administration, but call out the lawlessness and the unconstitutionality of the administration. And that is what Judge Simon and others have been doing more and more frequently.

BTC: So, in terms of this ruling, barring ICE from using aggressive tactics against protesters and journalists, does this apply nationwide?

GK: No, this this only applies to the jurisdiction where this judge presides, that is out in Oregon. And you know, it's not only saying that they can't use tear gas on peaceful protesters. And frankly, there were incidents where the judge noted that that peaceful protesters were being gassed and it included children who were, you know, being subjected to tear gas.

He also said, "Listen, you can't fire munitions, not bullets, but you can't fire other kinds of munitions at protesters. You can't fire at their heads. You can't fire at their necks. You can't fire at their torsos unless you would otherwise be authorized to use deadly force.”

In other words, if a protester raises a firearm and points it at an ICE officer, of course, that ICE officer would be entitled to respond with deadly force under those circumstances. But, you know, the judge is trying to do everything he can to put some constraints around how these ICE and, you know, Customs and Border Patrol officers have been behaving because they've been violating the constitutional rights of the people early and often, you know, and thus far largely without any consequences at all. Let's hope that this spreads to other jurisdictions, other states, and other cities where Donald Trump is sending his masked goons. You know, I'm sorry to call them that, but that is what they are proving to be. And uh you know, but as for right now, this only applies in the jurisdiction where Judge Simon sits.

BTC: Well, it's interesting because normally the Trump administration is super quick to appeal anything. But don't they risk if they appeal this case and the circuit court upholds the district court decision, then they risk that applying to the entire circuit? And if they want to appeal it up to the Supreme Court, and the Supreme Court upholds that decision, now they've got national precedent. And so, don't they have a vested interest here if the administration, which of course they do, wants to continue using these aggressive tactics against protesters and journalists to kind of let this one lie and not appeal as they normally would do?

GK: You know, that that might make a lot of sense to folks who kind of color within the lines of the legal and the criminal justice system, but there's no telling what Trump and his flunkies will do. Now, let me say a temporary restraining order only lasts 14 days so this one will expire in 14 days.

BTC: It becomes moot at that point anyway.

GK: Exactly. So, they may, you know what they may do, Brian? They may back off a little bit.

BTC: Right?

GK: And then once this TRO expires, you know, just go with both guns drawn, even if the guns are, you know, loaded with pepper ball munitions and tear gas canisters. But, you know, it's anybody's guess as to how the Trump administration and its frankly completely corrupt DOJ leadership will respond to anything that's going on in court these days.

BTC: Well, can't other plaintiffs across the country kind of mimic the case that was brought against the Trump administration, the successful case against the Trump administration, and seek to quell the violence at the hands of these ICE agents against protesters and journalists? Like can't we see prosecutors or attorneys in Minnesota bring the same case basically using the same format that they did in Portland?

GK: They can and you know what's great is they now have blueprints, right? They have the briefs that are filed by these plaintiffs. They can use those briefs and this ruling handed down by Judge Simon is a 22 page ruling setting out lots of case law supporting why he ruled the way he did. All of that can be used by plaintiffs all across the country.

And Brian, let me go back to a minute to the to the idea of precedent. Even though these cases don't create precedent, they only apply in the jurisdiction where they're decided, there is this atmospheric precedent that I think is being created nationwide by judge after judge in jurisdiction after jurisdiction acknowledging that you have federal agents who are engaged in lawless and unconstitutional activity, who are engaged in excessive force against the people who are just trying to exercise their first amendment rights.

And that, you know, begins to, you know, the tide begins to rise, I think, on the legal front. And it will continue to embolden judges to make sure they do everything they can to hold the Trump administration accountable. So, it's not actual legal precedent, but I think there is atmospheric precedent that is gathering and that will be used by judges and plaintiffs nationwide.

BTC: You know, we have seen a lot of Americans across the country I obviously share what ICE is doing, post videos about what ICE is doing, speak out against what ICE is doing. The Grammys are a testament to that. Judges live in society too and they can see all this stuff. So to what extent do you think that this big national mood against the abuses and excesses of ICE is in a way contributing you know if not directly to these cases like you said just in some atmospheric fashion to these cases where it gives them maybe the few percentage points more incentive to rule against what ICE is doing?

GK: You know, it's a good point because, you know, even though the petitioners are different from state to state, the defendants are largely the same. In this one, the name defendants include Kristi Noem, Donald Trump and because you have that sort of unanimity of the defendants, it is the federal government and federal officers nationwide who are engaging in chronic misconduct, abuses, excessive force, violation of constitutional rights. All of that seeps into a judge's determination.

You know, even if technically they're not reaching out and looking at evidence in other states, it has to have an impact on judges when they're deciding whether the federal government in their backyard, in their jurisdiction is overstepping legal or constitutional bounds, if they see that it's going on in cities nationwide, you know, I think that is why, frankly, we see some of this really scorched earth language referring to, you know, the pillars of our democracy and why they're so important and why judges have a non-negotiable duty, as Judge Simon said, we cannot shirk our duty as the judiciary to hold a runaway abusive executive branch accountable. {what a run-on sentence}

So listen, I think things are trending in a good direction for the rule of law, for the Constitution and for American democracy. It might not feel that because we see bad news stories particularly, you know, in corporate media. You know, they are forever focusing on the horror and the atrocities and it's good for us to see that. But they also need to focus on the points of light. And right now, so many of these federal court judges are points of light. They're beacons of light calling out the Executive Branch's lawlessness.

BTC: Well, you know, Glenn, like I said in the previous question, obviously there's a big national mood against ICE, but I'm curious to what extent judges witnessing other judges use this language and take more bold, aggressive stances against the overreach of a lawless, rogue agency within a lawless, out of control administration. To what extent does that have an impact? Like does more and more judges coming forward and using aggressive language and standing up to this administration give something of a permission structure for subsequent judges to also feel like they can step up?

GK: It has to. And I think we've seen that just in recent days and weeks where judges are going scorched earth. They're not sticking to the facts, the law, and the constitution. They're talking about history. They're quoting Thomas Jefferson and Ben Franklin. a republic if we can keep it. They're putting pictures of, for example, five-year-old Liam Ramos who was unlawfully, unconstitutionally jailed, detained, having committed no crime. I mean, this is the judiciary beginning to rise and meet the urgency of the moment.

So, I think your point is exactly right that courage begets courage. Judges like to pride themselves on being completely divorced from, walled off from what's going on in other cases, in other jurisdictions with other plaintiffs and other defendants. But the reality is their opinions are telling us everything we need to know about how they are now viewing the chronic lawlessness and unconstitutionality of the Trump administration and how they are stepping up because they feel like they have a responsibility to be that co-equal branch check against Executive Branch lawlessness.

BTC: All right. Well, we will of course stay on top of this issue as we get more lawsuits against ICE or any other legal news. So, for those who are watching, if you'd like to follow along and support our work, the best way to do that is to subscribe to both of our channels. It is and always will be 100% free. So, go ahead and hit the subscribe buttons right here on the screen. I'm Brian Tyler Cohen.

GK: And I'm Glenn Kirschner.

BTC: You're watching the Legal Breakdown.