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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 Freddie 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 Schwaiber, 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.
Any number of specific fact questions could come into play.
There's no question. The absolute core of the First Amendment is protecting the right of crowds together in 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 protest after Crete's shooting, it has 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 protesters 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 of whether someone can be arrested, 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 Amendment 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 perfectly 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 it.
Sure. So here's what we get. I think most known will be the Cash Patel Director of the FBI.
Cash Patel's statement, you don't have a right to bring a gun to a protest.
Cash Patel'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 law enforcement in the United States.
We should mention the background in politics here. Generally speaking, liberals and progressives don't love the fact that in recent years the Supreme Court has expanded.
Second Amendment rights. Generally speaking, you know, 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're otherwise lawfully permitted to do so.
And the fact that 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 the space to get to them in the absence of any interference or challenge.
The officers initiated pepper spraying of the protesters and pretty moved into pose themselves between an officer and a woman being pepper sprayed.
He was then grabbed and dragged to the ground, at which point officers discovered his holster 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 case 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. It 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.
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 were more than 100 lawsuits,
presently in court, alleging that that model of pistol has a bad tendency of going off accidentally.
It's why law enforcement has stopped using it. So there's 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 that 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 protest and medicine 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 from a constitutional perspective, the biggest point of what's going on here is called the chilling effect.
The police are acting in a way that are causing people to self-sensor, 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 and then 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 way 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 were covering protest 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 operational 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.
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 that 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 a 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 that 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, 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, and 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 US Supreme Court, sometimes through statutes, and sometimes through political practice.
We have relaxed and reduced protections of constitutional rights, whether First Amendment, Second Amendment, Fourth Amendment, or Fifth Amendment, all of which are implicated in the shooting of Alex Prady, by the way.
We've relaxed those protections in the interest of making the executive branch more powerful, of making police more powerful, making prosecutors more powerful.
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, 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 all turn around and reconsider.
We consider the possibility that we need to strengthen or restore those constitutional safeguards.
We leave it there. How much labor? Thank you very much.
Thank you.
No.
No.
It was great.
Oh, Marissa wants me to ask you another question, yes.
It was still my smart guy pose. This is it.
Marissa was saying that she was interested to hear your kind of recitation of the step-by-step thing that happened to Alex Pretti, and she wondered how you thought.
So, if we use this, let me rephrase.
I wouldn't be here if I wasn't willing what it used.
Thank you.
How different would the, again, how different would this case be about Alex Pretti without all of that cell phone video?
Oh, right.
One of the big lessons of these events, and this is not the first time we saw this in the Black Lives Matters 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 Pretti 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 in 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 going to start having to deal with deep fakes and manufactured videos in addition to real ones.
You know, 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.
Yes.
There is one more thing I would add, and use it if you like, or not.
You want to do a leading question, or should I just talk? You can add a question later.
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 I mean, there's been a lot of discussion about protocol and training.
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 in the other federal force.
That the rate of crimes committed by immigration officers is higher than the rate of crimes committed by people, illegal aliens.
People don't know that.
And 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 are used,
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 detention have been unlawful.
And we've seen countless deployments of gas and non-lethal weapons than in any other 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.
If it was, fine.
Or I can redo it in a slightly more dignified way.
Okay.
So, I can reset that up again with a question.
Well, not necessarily if it sounds okay.
I don't know.
Mr. Marissa, do you want me to do that, or did...
She says we're good on that.
But I did have another question.
Oh, 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 push so strenuously against this.
And then it appears that the White House borders are 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.
Now, this is not law enforcement against protesters.
This is ICE, however you want to think of them against law enforcement and protesters.
It's very much being experienced as an invasion, a foreign invasion in the 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,
and 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 have contributed to 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.
We got extras.