Who's Threatening Who?

The Trump administration says immigration enforcement are being assaulted; the details tell a different story

America is living through an extraordinary experiment. We are watching the reality of what aggressive internal immigration enforcement looks like in American cities.

Greg Bovino, top Customs and Border Patrol official, very much dressing for the job he wants, not the one he has

For President Trump’s supporters, the law is the law, and immigration enforcement must do whatever is necessary to remove anyone whose is undocumented.

For those living in the affected cities, it feels like they have been invaded. Masked and heavily armed officials march through their neighborhoods, waving guns, assaulting, arresting and sometimes even shooting their residents. The invaders are not immigrants, but the American government, and there does not seem to be any legal power restraining them.

For the rest of us, we experience these events through our social media filters and media bubbles. That makes understanding the ingredients that feed those information loops all the more important.

A crucial source of that information is the state itself. What is immigration enforcement saying about it’s encounters with the public? For one thing, it is acknowledging conflict. The Department of Homeland Security portray immigration officials as a group of federal employees under threat, claiming that:

• Threats against immigration officials have increased by 8000%!

• Assaults against ICE agents have increased by 1000%

These claims are featured in headlines and coverage. For example, the New York Post reports the numbers uncritically, and then blames Democrats for the surge in anti-DHS threats.

Quite how DHS generates these statistics is unclear. Reporters for National Public Radio asked for something the New York Post did not: the underlying data. DHS declined to share it.

So NPR tried to come up with an estimate by themselves, by looking at the number of court cases that mention assault of an ICE official. This seems a reasonable tactic because the Trump administration has promised to prosecute anyone who assaults immigration enforcement officials. They are even prosecuting people who make broad threatening statements or urge violence against immigration enforcement employees on social media.

Here is what NPR found: there has been a 25% increase in claims of assaults in court cases. Just in case you are not a math major or a stats guru, let me break down the numbers for you: 25% is a lot less than the 1000% increase in assaults that DHS claims.

It is certainly the case that ICE and DHS more broadly are in the public eye, and generating a lot of hostility. And a 25% increase in assault is a big year-on-year increase. But the sheer increase in the ICE presence on the streets makes more conflict with the public inevitable. Even so, some of the claimed assaults NPR measured do not result in convictions.

So the aggregate data does not add up. I think its even more important important to look at the details of specific cases. So lets walk through a few high-profile examples where the government made aggressive claims about violent interactions with members of the public, saying that they were assaulted or in danger. You can judge for yourself, but for me the details shows government officials rather than public using excessive and in some cases deadly force.

While DHS data about threats to immigration enforcement do not add up, they are not measuring or discouraging something that is clearly increasing: the use of excessive force by agents of the state.

Dayanne Figueroa is a US citizen who was driving in Chicago near a site where federal agents were arresting landscapers. According to DHS she “crashed into an unmarked government vehicle and violently resisted arrest, injuring two officers.” The Assistant Secretary of DHS Tricia McLaughlin (remember that name) said Figueroa “used her vehicle to block in agents, honking her horn,” and that she “struck an unmarked government vehicle…In fear of public safety and of law enforcement, officers attempted to remove her from the vehicle. She violently resisted, kicking two agents and causing injuries. This agitator was arrested for assault on a federal agent.”

Got it? Figueroa drove into a government vehicle, and the officers arrested her due to public safety concerns, during which she violently assaulted them, causing injury.

Bystanders took a video. Please take a minute to watch it. It tells a different story.

The video shows a woman forcibly being dragged from her car after being hit by a larger vehicle, by three armed and masked officials. The officials do not identify themselves. They do not provide a warrant. They advance with weapons drawn, as bystanders yell “you hit her” and “let go of her.” They yank her, barefoot, from the car, and then place their body weight on top of her. If there is violence in this interaction, it is only coming from one party. At no point does the woman look like a credible threat to anyone. There is no exercise of restraint, judgment, or nod to due process or constitutional protections on display by the officers.

Figueora was arrested. She says she was moved to multiple undisclosed locations, denied access to contact with her family members or a lawyer before being released. Her family discovered what had happened by seeing the video you just watched. She was not charged, unlike some of the other examples I will discuss below, perhaps because the existence of third-party video and witnesses that would have made such charges difficult to prosecute.

Now, I want to ask you: the next time you hear from DHS Assistant Secretary Tricia McLaughlin, will you believe her?

If your answer is yes, thats a problem. As The New Republic has reported, McLaughlin’s track record here is not good.

McLaughlin’s statements justifying horrific ICE arrests have ranged from missing essential details to contradicting witness testimony and straight-up lying about every single detail of an arrest.

But it’s also a problem if you don’t believe McLaughlin, not because she deserves your credulity. She does not. But she she leads public communication for DHS. And when the public stops believing the words of a part of government whose job it is to protect the public, it raises the question of what they think that government organization is actually doing. It raises basic questions of democratic legitimacy.

Here is another examples of McLaughlin justifying the use of force in what became an ironic image out of Chicago. Again she says the citizen (“thug”) engaged in assault. If you don’t buy the assault claim, then this simply looks like the use of excessive force against a terrified 15 year old protesting an unwelcome force in his neighborhood.

These are not one-offs. The Chicago Tribune, which reported out the Figueora case, points to a pattern in Chicago:

On Oct. 9, federal prosecutors on Thursday dismissed felony charges against an Oak Park man with intellectual disabilities accused of assaulting federal officers during a protest outside the Broadview immigration holding facility. A day earlier, a federal grand jury refused to indict a Chicago couple arrested during a violent protest outside the U.S. Immigration and Customs Enforcement facility in Broadview in September. And a WGN producer violently arrested by ICE in Lincoln Square on Oct. 10 was detained for seven hours by federal immigration authorities before being released without charges, according to her attorney. limiting the use of force against civilians and media in Illinois.

The legal system generally defers to agents of the state, so when prosecutors, grand juries and judges stop believing them, it is a sign that something has gone fundamentally wrong.

It is also not just Chicago. In Colorado, a group of protestors were at a federal facility after the arrest of an immigrant and his two children as they were traveling to school. A 57 year old woman goaded a masked official she was recording by saying “You’re a good Christian, aren’t you?” He knocked the phone out of her hands. She follows him, touching his back, after which he yells “she’s assaulting me” while grabbing her by the hair, putting her in a chokehold, and tossing down a grassy embankment. In this case, he clearly initiated the contact, and there is no plausible way a 5 ft 2” retiree is a threat to an armed man two to three times her size.

Lets look at another example. ICE shot an American citizen and food bank worker in Los Angeles. After being released from hospital, he is facing charges of assault. Carlos Jimenez’s lawyer said that Jimenez got out of his car to tell ICE agents that students would soon be assembling for their school bus at the place where their vehicles were blocking part of the road. Then masked agents drew a gun on Jimenez who returned to his car, putting it into reverse. Officers then shot him.

Tricia McLaughlin claimed that Jimenez “attempted to run officers over by reversing directly at them without stopping” and that it is “another example of the threats our ICE officers are facing day in and day out as they risk their lives to enforce the law and arrest criminals.” His lawyer denies this, saying he was trying to back up to get around their vehicles. In this example, no video exists of the altercation, and so again we have to ask ourselves if we trust McLaughlin.

This is the fourth time in recent weeks federal immigration enforcement officials have fired into a vehicle. One of these, in Chicago, was fatal. Officers claimed that the immigrant they were seeking to arrest tried to run them over. A detailed breakdown of available video is inconsistent with that claim, and more consistent with ICE officers fatally shooting the driver as he sought to accelerate away from them. ICE is not allowed to use deadly force in such circumstances, but is allowed to do so if the subject posed an immediate danger to themselves or others, creating an incentive to claim such dangers. In Phoenix, ICE shot an immigrant under similar circumstances. The immigrant tried to pull away from a traffic stop, the ICE agent claimed the vehicle was driving in his direction, and shot the driver.

In another case in Chicago, Marimar Martinez, a citizen, was shot five times by a Custom and Border Patrol agent. She was accused of boxing in and ramming their vehicle. Tricia McLaughlin called the five shots “defensive” — the same language she used for the shooting of Jimenez. A DHS press release quoted McLaughlin:

law enforcement was assaulted yesterday, our brave law enforcement officers were rammed by vehicles and boxed in by 10 cars this morning. Agents were unable to move their vehicle and exited the car. One of the drivers who rammed the law enforcement vehicle was armed with a semi-automatic weapon. Law enforcement was forced to deploy their weapons and fired defensive shots at an armed US citizen who drove herself to the hospital to get care for wounds.

The “10 cars” claim is a bit unclear. Only the drivers of two cars are mentioned in the criminal complaint. Martinez is a licensed gun owner who had a handgun in her purse, and in the criminal complaint there is no claim she brandished the weapon. She also did not drive herself to hospital, which would have been impressive having been shot five times, but called 911.

For what its worth, here is the vehicle damage first from the CBP vehicle…

…and Martinez’s vehicle. Does this look like a ramming? A life-threatening assault? Defense lawyers are complaining the CBP vehicle was repaired before they could review the damage.

In this case, the driver admits she and another car was following the government vehicle, beeping to alert the community to their presence. There is, again, no video except for body camera from the CBP official, which has not been publicly released. Martinez’s lawyer was given access to the footage. He says the video shows CBP officials running into her. The video also allegedly shows the CBP agent saying “Do something, bitch” before shots were fired.

In private Signal chats, the CBP agent boasted to other officers: “I fired 5 rounds and she had 7 holes. Put that in your book boys.” If he felt comfortable enough communicating that to fellow employees, it speaks to an irredeemable organizational culture. And yet, it is the shooting victim who is facing punishment, with a felony charge that could result in a 20 year prison sentence.

DHS is not a credible source

The DHS has communications specialists to establish its version of events and modes to disseminate them. They have the resources of the Department of Justice to push their claims in court. The individuals they clash with do not. If they are lucky they have lawyers, who might decide it’s wise not to make statements to the press about what happened to protect their clients. And so, many DHS claims go uncontested, or get to frame initial impressions about the event.

But at this point anyone uncritically reporting statistics or narratives proposed by DHS is not really in the journalism business, if the journalism business is anchored on discovering and disseminating facts. Simply saying “The DHS said” is not a reasonable qualifier unless the media has more detail to report. Media have to weigh the news relevance of the state version of events while avoiding become stenographers for sources with a clear agenda and a record of misrepresentation.

I’m sure some readers have already thought to themselves “sounds familiar” as they recall how state and local police are afforded extraordinary credibility. When I posted about the tendency of federal officials to claim they were in danger, John Pfaff, a criminal justice professor, pointed out that “Years ago, AP [Associated Press] said it would not quote officers saying they “feared for their safety” after a police shooting absent independent verification, ostensibly bc those claims often failed to hold up.”

I take from John’s words that the credibility of government actors erodes the more often they are caught lying. The implication is also that what is happening now with immigration enforcement is nothing new. Fair enough.

But it is the case that the surge of so many federal officials into American cities, under conditions where they are uninvited by state and local elected officials, and unwelcome by the local population, is new. Their stock of credibility has quickly eroded. At some fundamental level, we have a deep democratic legitimacy problem.

The democratic legitimacy problem

Armed agents of the state have sworn to uphold a constitution whose creation was motivated in no small part by Founders opposed to having armed agents of the state imposed upon American communities. That basic democratic legitimacy problem cannot be easily fixed, but it is worsened when these agents of the state act in an imperious manner, seemingly unaccountable to anyone.

The adage “every accusation is a confession” is overused but we are seeing a distinct pattern of federal immigration officials claiming to be assaulted as they assault citizens and immigrants, saying they are under threat as they wave guns at people holding protest signs or honking at them. That pattern is encouraged by a federal government which will move heaven and earth to prosecute someone who tossed a sandwich at an official, but will excuse an official who shoots members of the public.

The extraordinary gap between the treatment of immigration enforcement officials and most federal employees is hard to overstate. The Trump administration has made good on its claim to put federal employees “in trauma” via firings, shutdowns, and politicizing their workplace. But federal officials waving guns have been offered bonuses, seen massive increases in resources, and promised free rein over the public.

Stephen Miller spelled this out: “To all ICE officers: you have federal immunity in the conduct of your duties. And anybody who lays a hand on you or tries to stop or obstruct you is committing a felony.”

Legally, “federal immunity” is not a license to kill. It is, in fact, dramatically more limited than Miller’s words imply. The official’s actions cannot be unreasonable (see Steve Vladeck for a longer explanation of case law). But as a statement of intent, this is chilling: Miller is telling federal officials to do what they want, and he is telling citizens that they will be turned into felons if they brush into the officers arresting their neighbors.

What about state and local officials? Not a single local prosecutor has filed charges against immigration officers. One reason why is threats from the federal government. The Deputy Attorney General (Trump’s former personal defense lawyer) threatened to prosecute California elected officials who suggested federal officials should be arrested for abuse of power, saying that any such arrests would be “illegal and futile.”

Without check, the violence will escalate. And the checks are not coming from the federal government. Every message DHS has sent is that the agents in all of the cases I have described have done nothing wrong; indeed, they are the victims. Organizational standards of professional practice are either absent, or completely at odds with what the public expectations of those standards should be.

This will get worse

Remember, we are in the early stages of this. DHS hopes hire thousands of new recruits. ICE leadership in many field offices was replaced for not being aggressive enough. Only a few cities have seen the surge. It can easily get worse. More shootings will mean more killings. An official waving an automatic weapon may panic and spray bullets into a crowd. Someone may shoot back. Every escalation becomes an invitation to more violence, and an excuse for more government officials to impose their will on an unwilling public.

All of this remains entirely predictable. But also preventable. Empires tend to collapse when they take unnecessary wars. Invading their own cities is the dumbest and least necessary of such wars. Even if it is not a literal war, the corrosion of public trust will have much the same effects on the people who refuse to accept DHS propaganda.