When considering ICE enforcement
in places like Minneapolis,
what is the intersection between the
First Amendment, freedom of speech
and assembly, and the Second
Amendment, the right to bear arms?
Because Alex Pretti was in
the crowd protesting the enforcement
surge and carrying a
legally permitted gun when
U.S. Border Patrol agents shot
him dead.
We turn to UW-Madison political
science professor and legal scholar
Howard Schwaber.
And thanks very much for being here.
Thanks for having me.
So, in your
expertise, are crowds like we've
seen protesting ICE legally
under the First Amendment?
There's no straight answer to that
question.
That is protected activity, but it
can be subject to regulation.
And so, for example, there could be
permitting requirements, the crowd
could be blocking traffic, right?
Any number of specific fact
questions could come into play.
There's not question.
The absolute core of the First
Amendment is protecting the right of
crowds to gather and protest.
As always, the devil is in the
details. But the short
answer is yes, but with the caveat
that there might be some legal
issues involved.
That are more specific.
For example, in the protests after
Prati's shooting, it is alleged
that two protesters
bit immigration officers, and if
that occurred, that would be
illegal.
Because there are, as you say,
exceptions to First Amendment
rights. I read, like,
uttering fighting words that would
apply to protestors and somehow
justify violence against them by
agents.
Well, justify arrest.
The question of justifying violence
is a whole different set of
questions. So just in the last two
years, the U.S.
Supreme Court has actually raised
the bar, made it harder for
police officers to justify their use
of deadly force by insisting
that an evaluating court has to
look at all the circumstances.
Not only the question was the
officer subjectively in fear at the
moment that he or she fired their
weapon. So the question of use of
force is separate from the question
whether someone can be interested?
Which may be separate from the
question of, is the First Amendment
applicable or not?
It just gets really complicated.
I think the easy way to think about
this is as follows.
The First Amendment protests the
right to protest.
No right is absolute.
There are things you can say, fraud,
blackmail, threats, that the First
Movement does not protect.
And if you do that during a protest,
that's not protected.
There are limits on the exercise
of First Amendment rights that are
known as Content-neutral time,
place, and manner requirements, like
noise ordinances, or don't block
traffic, or you need a permit
for a crowd above a certain size,
those are enforceable and generally
constitutionally permissible.
So just because something is
constitutionally protected doesn't
necessarily mean that it's legal.
What about justifying shooting
to kill if someone was legally
possessing a gun in the midst of a
protest?
Clearly there's a difference between
having a weapon and brandishing.
Sure. So here's where we get, I
think most known will be the Cash
Patel, director of the FBI, Cash
Patels statement, you don't have a
right to bring a gun to a protest.
Cash Patell's statement will get a
failing grade in a freshman class in
an undergraduate institution.
He is not just wrong,
he is wildly and almost bizarrely
wrong for someone who occupies a
position in law, a senior position
in the law enforcement in the United
States.
We should mention the background
politics here. Generally speaking
liberals and progressives Don't
love. The fact that in recent years
the Supreme Court has expanded the
Second Amendment rights.
Generally speaking, stereotyping,
conservatives have approved of
that expansion. But there's no
question that the Supreme court has
made it very, very clear that
you have a right to carry a weapon
in public if you are otherwise
lawfully permitted to do so.
And the fact you're at a protest is
utterly irrelevant.
The best formulation I've heard, I
didn't make this up, I wish that I
had, is We are allowed to
exercise two fundamental rights at
the same time.
You can engage in First Amendment
protest and exercise
your Second Amendment rights at the
first time and one does not somehow
erase the other.
And yet in the heat of a moment,
like the chaos that we
saw in these protests,
how difficult is it for
police agents, federal agents,
to know about that
gun and that protest?
So, sometimes very difficult.
The video evidence is very,
very strong that in this case the
answer is really easy to
break it down. The protesters were
not approaching the officers.
The officers approached the
protesters. They crossed space to
get to them in
the absence of any interference
or challenge.
The officers initiated pepper
spraying of the protesters and
a pretty move to interpose himself
between an officer and a woman being
pepper sprayed. He was then
grabbed and dragged to the ground,
at which point...
Officers discovered his holstered
weapon, removed it from him,
and an officer walked away holding
the weapon, all of this before
shots were fired.
So you could have a case where
the facts are really complicated,
and you could have a place where the
police judgment is a close call
and has to be debated.
This is not one of them.
The evidence seems absolutely
overwhelming that this was,
in any other context, this would be
a murder.
I would like to add one thing
which shows up on the video which is
very interesting The officer
removing the gun is running,
seems to be in a hurry, and some
people have suggested that he may
have inadvertently fired the gun
into the ground while he was
carrying it, and that that might be
what triggered the shooting, that
the officers heard a shot go off.
The possibility of that is enhanced
by the fact that the pistol was a
Sig Sauer, and there are more than
100 lawsuits presently in courts
alleging that that model of pistol
has a bad tendency of
going off accidentally. It's why law
enforcement has stopped using it.
Some circumstantial evidence that
might provide a narrative that
might explain what happened.
None of that changes the fact that
there was no legitimate
justification for the police
officers to open fire, and the
fact the guy on the ground had
previously had a licensed
weapon in his holster has absolutely
nothing to do with changing that
evaluation.
All of that description of
what happened, how
dangerous is it for
protesters to be on
the streets exercising their
right to protest?
So this morning, I had a
conversation with someone who
was thinking of participating in
protests in Madison today and is not
going to do so because they're
afraid.
That person may be overreacting or
not, but the
intimidation and spreading
of terror among
protesters and potential protesters
is not only very real, it certainly
appears to be intentional.
And that's the, from a
constitutional perspective, the
biggest point of what's going on
here. It's called the chilling
effect.
The police are acting in a way that
are causing people to self-censor,
to refrain from engaging in speech
they're entitled to engage in,
because they're afraid of what might
happen. And it's very small
comfort to say, you know, a year or
three down the line a court might
say the police officer was wrong in
killing you.
That's not really something
that relieves us of that sense of
fear.
And from a free speech
perspective, we protect free speech
in a we don't protect any other
right. There's no
other...
Category of constitutional right
that we protect with this extra
layer of protection.
It's not only that the government
can't prevent you from speaking
freely, the government is not
permitted to cause you to be afraid
to speak freely, even
if it might turn out you were within
your rights ultimately at the end of
the day. That's that chilling
effect. And there's, from my
perspective, or in my view,
absolutely no question that the
operation in Minnesota has crossed
that line of chilling effect and
it's far in the rear-view mirror,
and these operations are wildly
unconstitutional.
And now today, federal agents
have arrested two journalists who
are covering protests
inside a church in St.
Paul.
That's also a chilling effect.
It can be. This one is a little more
complicated only because there are
facts that I don't know.
I think we, the public don't, know.
The facts that we do know are deeply
disturbing. So the law is the Free
Access to Clinic Entrances Act.
It was a law enacted to protect
abortion clinics.
As part of the political compromise
to get that law passed,
a section was added that also
protects churches.
That section hasn't really been
tested in court. The abortion
clinics part has.
But it is a crime, a federal crime,
under the FACE Act, to disrupt.
Or obstruct the operation of a
religious service.
The allegation by the Justice
Department is that these journalists
were not there covering the event,
but were part of the conspiracy to
hold the protest.
And the evidence of that, as far as
we know, is solely that they
attended and filmed a meeting ahead
of time at which the protest was
being planned.
There's really good reason to think
the government's case is extremely
weak. A judge refused to
issue a warrant, and a court of
appeals refused to order the judge
to issue the warrant.
So these guys swung
at the ball twice and missed.
On the grounds that there was not
sufficient evidence to justify an
arrest, and went ahead and arrested
these journalists anyway and impaled
a grand jury.
It is, I think, extremely
likely that this will be yet
another, I've lost count,
but yet another instance of this
DOJ failing to secure
an indictment from a grand jury,
which is supposed to be impossible.
I mean, that's a sign of not just a
weak case, but a mind-bogglingly
wrong-headed exercise of
prosecutorial discretion.
But I think it's clear.
But the Trump administration doesn't
care about getting convictions.
What it cares about is bringing
these cases in order to harass
journalists and political opponents
to make them reluctant to
exercise in, well, in this case,
journalism. Again, I believe
that this is now purely subjective.
But from looking at the facts that
we know thus far, it appears to
me that this is an attempt to chill
journalists from doing their job
rather than any serious attempt or
serious expectation that any
criminal charges here will stick.
What lessons are we as a nation
learning from all of this?
That over the course of years
and decades, in a really bipartisan
way, let me be clear about that,
we have given prosecutors far,
far more leeway to
game the system and abuse the law
than we had realized.
We have relaxed and reduced,
sometimes through the actions and
rulings of the U.S. Supreme Court,
sometimes through statutes, and
sometimes through political
practice, we have relaxed and
reduced protections of
constitutional rights, were the
first amendment, second amendment.
Fourth Amendment, or Fifth
Amendment, all of which are
implicated in the shooting of Alex
Pruddy, by the way.
We relaxed those protections in the
interest of making the executive
branch more powerful, of making
police more powerful and making
prosecutors more powerful.
And in the past, it's always been
the case, and maybe it's still the
case that as long as it was the
other side politically that was
suffering, we would say, oh, well,
that's fine with us.
What we continue to seem to
be unable to recognize as a nation.
Is that we all need these
protections because just because
your side is abusing the system now
doesn't mean the other side won't
abuse it later.
It's just this basic fundamental
notion of limited government under
a constitution.
And in the case of criminal, and in
the area of criminal prosecution,
those guardrails have slipped
dramatically over, as I
said before, a period of decades.
And it's long, and maybe this will
be a moment that we'll all turn
around and reconsider.
Or reconsider the-
Consider the possibility that we
need to strengthen or restore those
constitutional safeguards.
We leave it there.
Howard Schwaber, thank you very
much.
But I eventually got here.
Knows.
That's great.
Oh, Marissa wants me to ask you
another question.
Yes.
Restore my smart
guy pose, this is it.
She, Marissa was saying that
she was interested to hear
your kind of recitation of the
step-by-step thing
that happened to Alex Preti,
and she wondered how you thought,
so if we use this, let
me rephrase.
I wouldn't be here if I wasn't
willing to let it be used.
Thank you.
How different would the
How different would this case be
about Alex Pretti without
all of that cell phone video?
One of the big lessons of
these events, and this is not the
first time we saw this in the Black
Lives Matter protest, we've seen it
before, is how the
ubiquity of video
evidence obtained by private
citizens using cell phones is
changing the conversation.
We would not know what had happened
to Alex Prettie without that
evidence. We would simply have no
idea. We would have witnesses
claiming something, we'd have the
government claiming they were lying
and almost certainly, you know,
many people, if not most people.
Would accept the government's word
just because the fact that some guy
on the street says this happened is
not itself compelling evidence.
This video evidence, it's remarkable
how this is changing the
conversation and changing just the
public baseline of awareness.
This is a long-term trend.
We're going to be dealing with this
for a long time.
We're gonna start having to deal
with deep fakes and manufactured
videos in addition to real ones.
There's all sorts of questions
and all sorts of both good and
bad. Possible outcomes that
could come from this every
person a journalist Phenomenon
that we're seeing at the moment
though It is by far the
most powerful if not the only
effective mechanism that we have for
holding government agents accountable
All right, great, thank you.
There is one more thing I would add,
and use it if you like or not,
you want to do a lead-in question or
should I just talk, you can add a
question later.
What is, what is the?
These cops are the worst of the
worst.
The federal border patrol
and ICE.
These are not ordinary law
enforcement.
Right and and i mean there's been
a lot of discussion about uh...
Protocol and training and yeah
Yeah what people don't know is that
a study in 2022 found that
immigration officers are convicted
of crimes at a five times the rate
any other federal force that
the rate of crimes committed by
immigration officers is higher
than the rate or crimes committed by
people illegal aliens.
People don't know that.
And
That the training for them was
shortened to 47 days in a farcical
attempt to honor the 47th president.
And that every review that has been
done by police of the tactics that
these officers use have agreed that
they're absolutely appallingly
terrible. They give contradictory
commands, they resort to violence
much too quickly, they engage in
aggressive assaults.
There have been more than 2,300
rulings by judges that
immigration detentions have been
unlawful. And we've seen countless
deployments of gas
and nonlethal weapons that in any
their context.
In any other context, each one of
those events would have required a
police report and an internal
investigation.
For these guys, this is normal
practice.
And so, along those lines,
how...
Wait, was that being recorded?
Because that was not my official
version, that was just me ranting.
It was, I think.
Or I can redo it in a slightly more
dignified way.
So I can
reset that up again with
a question.
Well, not necessarily if it sounds
okay, I don't know.
And Marissa, do
you want me to do that or
did?
She says we're good
on that,
but I did have another question.
Um,
No, one thing I wanted to ask
pertaining to that was
how the
governor of Minnesota and the
attorney general of Minnesota,
and the mayor of Minneapolis,
how they pushed so strenuously
against this and
then it appears
that the
White House borders are,
is saying he's going to make things
better, he's going to step back.
How important is that
kind of almost legal
resistance to what's happening?
It's hard to say.
I should point out that the
Minnesota Association of Police
Chiefs also went to
the White House and asked for a
meeting with the President to raise
this same point.
This is not law enforcement against
protesters.
This is ICE, however we want
to think of them, against law
enforcement and protesters.
It's very much being experienced
as an invasion, a foreign invasion
in this state, which is a way that
Americans, unless they live in a
place like Compton, are not
accustomed to thinking of law
enforcement officers.
There's a lot of people are using
the term militia,
that these are an armed militia
being sent to attack the American
public.
It's increasingly hard to resist
that description, particularly when
you consider the fact, for example,
that there are approximately 10
times as many illegal aliens in
Texas as there are in Minnesota.
So to try and frame this
as the White House is trying to
frame this as law enforcement
against angry citizens
is wrong.
And what's happened in the
last few days because of all the
things we're talking about.
Is that there's been a large-scale
public reaction rejecting
that narrative.
I believe the White House is
reacting to that, the loss of
support, particularly from
Republicans in Congress, for
example, who are starting to speak
out. The legal resistance from Waltz
and the mayor of Minneapolis, I
don't think that really affects this
president very much.
What affects him is resistance from
Republicans, first of all,
from his base, the president of
Latinos for Trump has come out
speaking against the actions going
on in Minnesota.
The perception that he's losing the
battle of public narrative.
So it's a political calculation not
a legal one To
the extent that the governor's
statements, you know have have
contributed at that little
Calculation it's part of the
discussion. But honestly, I think
your earlier question was more on
point I think cell phone video
footage has been the thing that has
created the change in environment
All right, great.
Thank you.
Sure thing.
We got extras.