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Can ICE be restrained?
00:28:40
<p>Anti-ICE protests continued throughout Minnesota over the weekend, as they have for nearly two weeks now. Since the shooting of Renee Good in Minneapolis, ICE agents have been getting in confrontations with the people they are targeting, and the citizens attempting to observe and document ICE’s actions.</p><p> </p><p>The city and state are on a razor’s edge — trying to observe and protest while not giving U.S. President Donald Trump an opportunity to escalate. Trump has threatened to use the Insurrection Act to deploy military troops against protesters, with some 1,500 troops reportedly standing ready.</p><p><br></p><p>Can he do that? And can anything be done to restrain the power of ICE officers deployed to Minneapolis and beyond?</p><p><br></p><p>Today we hear from Aaron Reichlin-Melnick. He’s a Senior Fellow at the American Immigration Council and has been following all of this very closely.</p>
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CBC Announcer
This is a CBC podcast.
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Jamie Poisson
Hey everybody, I'm Jamie Poisson. Anti ICE rallies continued throughout Minnesota over the weekend as they have for nearly two weeks now since the shooting of Renee Goode. ICE agents have been getting in daily confrontations with the people that they are targeting and the citizens attempting to observe and docum ice's actions.
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Reporter/Narrator
Chaos erupted. Anti ICE protesters throwing objects at officers who then used flashbangs and tear gas to disperse crowds.
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Jamie Poisson
The city and state are on a razor's edge trying to observe and protest while not giving US President Donald Trump an opportunity to escalate. Here is Minneapolis Mayor Jacob Fry, who the Trump administration's Department of justice is currently investigating for allegedly obstructing ice.
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Minnesota Official
We're not going to counter Donald Trump's chaos with our own brand of chaos here. Yes, we stand up. Yes, we peacefully protest. And we're not going to go down this route. That gives them the excuse to come in with greater numbers.
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Jamie Poisson
They're looking for an excuse because that is exactly what President Trump is threatening to do. To use the Insurrection act to deploy military troops against protesters over the strenuous objections of local officials. Some 1500 troops reportedly stand ready. He do that? And can anything be done to restrain the power of ICE officers deployed to Minneapolis and beyond? I'm going to get into this and more today with my guest, Aaron Reichland Melnick. He's a senior fellow at the American Immigration Council and has been following all of this very closely. Erin, hi. Thank you so much for coming on to Front Burner.
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Aaron Reichland Melnick
Thank you for having me.
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Jamie Poisson
So let's focus first on the latest from Minneapolis. As I mentioned, these anti ICE protests have continued throughout the weekend. Trump is threatening to send in the military to deal with protesters writing on.
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Protester/Onlooker
Social media if the corrupt politicians of Minnesota don't obey the law and stop the professional agitators and insurrectionists from attacking the patriots of ICE who are only trying to do their job. I will institute the Insurrection Act.
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Donald Trump
If I needed it, I'd use it. I don't think there's any reason right now to use it, but if I needed it, I'd use it. It's very powerful.
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Jamie Poisson
How would you describe these protests at the moment? What kind of clashes have been happening between protesters and ICE agents?
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Aaron Reichland Melnick
I think the most important thing to understand about this is that you haven't seen violent protest with some very, very rare exceptions. In general, the side of these conflicts that is carrying out the most violence has been federal law enforcement officers, especially with the deployment of riot munitions like pepper spray, papper balls, even rubber bullets. In some situations, they have taken people.
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Minnesota Official
Out of their cars to detain them on major streets. Left the car running, not in park. Car rolls down the street.
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Protester/Onlooker
Was going to go to the doctor up there. That's what all we heard was.
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Aaron Reichland Melnick
Boom.
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Jamie Poisson
And every airbag deployed.
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Reporter/Narrator
They say a flashbang went off near their car as tear gas enveloped them.
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Jamie Poisson
And I was screaming to my other. My oldest son, Sean, I'm like, get out. Get out. Like, I can't, mom.
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Protester/Onlooker
And I can't breath.
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Aaron Reichland Melnick
Whereas there have been a few instances where protesters have been alleged to have gotten too close to ICE officers or potentially interfered with them.
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CBC Announcer
A night of civil unrest in Minneapolis escalated after federal agents shot an undocumented immigrant while trying to take him into custody. Officials say they were trying to arrest a Venezuelan man when they were ambushed during a traffic stop. DHS says the man and two others attacked them with a snow shovel and broom, forcing an agent to open fire.
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Aaron Reichland Melnick
And one instance a few days ago where an FBI vehicle had its windows smashed in. But really nothing like what happened last summer in Los Angeles.
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Jamie Poisson
And just I saw over the weekend that a US Federal judge issued a ruling ordering sweeping restrictions on what tactics can be used by immigration agents in Minnesota against protesters after the shooting death.
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Protester/Onlooker
Of Renee Goodbye, an ICE agent. A federal judge is now prohibiting ICE from retaliating against peaceful protesters after many have been shot with tear gas, pepper sprayed, and physically assaulted.
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Jamie Poisson
I just wonder what you thought of that ruling and if you think it will materially impact anything on the ground moving forward.
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Aaron Reichland Melnick
That ruling really follows through on a common theme throughout the DHS's response to anti ISIS protest, which is allegations of excessive use of the force.
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Federal Official
We only use those chemical agents when there is violence happening and perpetuating, and you need to be able to establish law in order to keep people safe.
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Legal Expert
I wish the state officials, Minnesota, would investigate why you have so many people who are using their vehicles and other means to actually interfere with a legitimate law enforcement operation in Chicago.
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Aaron Reichland Melnick
Earlier, during this mass deportation operations, you had a federal judge look through hundreds of hours of Border Patrol body cameras and, and really reveal in an incredibly extensive opinion how much the government stories of what's happening in these clashes isn't true. How agents, you know, tossed tear gas grenades, how they deployed pepper spray and pepper rolls against people who posed no threat whatsoever. And the result of this is that now we're seeing in Minneapolis similar things happening where federal agents claim that they were under threat from violent protesters. And now we've had a federal judge look at the evidence and say, that's just not true. Now, whether this decision actually results in a major change remains to be seen. The government is almost certain to appeal this rapidly to the 8th Circuit Court of Appeals, which is one of the most conservative in the country. But the crucial thing is that we have, once again, a federal judge who has looked at the evidence and said, I don't believe what the government is saying.
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Jamie Poisson
I just. Of course, Trump is threatening to send in the military to now deal with these protesters. And just what are the big fears of what could happen if the military is sent in?
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Aaron Reichland Melnick
Of course, the biggest fear would be a Kent State site type situation where military, armed military troops end up using their weapons and somebody gets killed. Hopefully, that is not going to happen. But I think the more likely concern is that the deployment of the military inflames the situation further. I know there are a lot of people who are very frustrated with how the federal government has been handling this, have come out and protested them. But the deployment of armed military troops changes the tenor of the situation. It ratchets up the tension rather than trying to cool things down.
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Jamie Poisson
Yeah, and just to be clear, like, is there any way to stop him from sending in the military? Are there any options available to local law enforcement?
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Aaron Reichland Melnick
Certainly not ahead of time. If he deploys the military using the Insurrection act as he has threatened, there will almost certainly be a lawsuit in federal courts, just as there was a lawsuit against his use of the National Guard, which were sent to American cities using a different legal authority. And the Supreme Court has ruled that Trump's use of that legal authority was not appropriate. And so he has now been forced to draw back the use of the National Guard. But this is the Insurrection Act. It's a different law entirely. You're looking at a different court case that would have to be brought. And I don't think anyone can say at this moment how that's going to turn out.
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Jamie Poisson
These protests, you know, as you've mentioned, are in response to what people are seeing as they see these flood of ICE officers in cities right across the country. Right. In California, in Minnesota, in Illinois, in New York. I just want to go over with you some of the incidents that we've been seeing because Renee Goode was not the first time that someone had been shot and killed by ice. Right. The Trace, an outlet that covers gun violence, has found that at least four people have been killed in shootings involving ICE agents. And just take me through what some of the cases are that we have seen across the country.
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Aaron Reichland Melnick
Yeah, we have seen ICE use a lot more force in these operations, really, than we've ever seen federal law enforcement do during immigration operations before. The other case in which a migrant was shot and killed, not a US Citizen, here was the killing of Silverio Villegas Gonzalez, a 38 year old man who lived in Chicago who was shot in a very similar situation to the shooting of Ms. Good. ICE officers alleged that he hit and struck an ICE officer with his car and that they fired defensive shots.
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Reporter/Narrator
According to ice, this happened while its agents were trying to stop the man's car before he resisted arrest while trying to drive his car into officers. ICE says the suspect hit one of the officers dragging him with his vehicle. That officer, the agency says, then fired shots, striking Villegas Gonzalez, who later died at a nearby hospital there as well.
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Aaron Reichland Melnick
Video evidence seemed to undercut the claims with unfortunately, the video was not as clear as in the killing of Ms. Good. But nevertheless, the story that he had deliberately aimed at officers, again did not seem to be true. And following the shooting, DHS claimed that the officer had been seriously injured, yet he was caught on video a week later describing his injuries as so we've had several instances like this. A lot of them have involved vehicles because we are seeing an increase in people trying to escape ice. And I think this is in part due to how the agency is conducting these arrests. You look at how officers are supposed to carry out these enforcement. There's a choice between either trying to find somebody while they're driving their car, stop their car and arrest them in their vehicle, or wait, wait until they are at home, wait until they've left their vehicle, wait until there's a safer spot. And with the Trump administration prioritizing high arrest numbers, wanting to just get the agents out there and arresting as many people as possible, it's clear that slow down, wait, and do these arrests in safer positions is no longer something that the agency is focusing on. And that is leading to more situations where tensions are running high and people are genuinely terrified of masked law enforcement agents who don't always have identification on them.
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Jamie Poisson
Right. And then of course, the result of that is these videos that we're seeing. I'm thinking of the one of the two young target employees in Richfield, Minnesota, last week.
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Reporter/Narrator
The encounter captured on cell phones by bystanders as back and forth turns to two target employees being tackled and detained. As one video ends.
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Aaron Reichland Melnick
Christian, do you have. You want us to call my mom?
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Reporter/Narrator
Others begin as one of the men shouts that he's a citizen, leave him alone.
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Jamie Poisson
And then, of course, like ProPublica has come out with an investigation that found at least 40 instances of ICE agents using chokeholds on people even though it's banned. I just like the ICE agents themselves. I know they have these quotas to meet, but what are the rules that they're expected to follow when it comes to using deadly force or excessive force of any kind? Are they different than the rules other law enforcement agencies have to follow?
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Aaron Reichland Melnick
Not really, no. I mean, the general rule when it comes to the use of deadly force is that officers have to have a reasonable belief that the subject of the force, the person who they are using deadly force on, poses an imminent danger of death or serious physical injury to the officer or someone else. In other words, you can only use deadly force when your life or the life of someone else is threatened. And that's the basic rule when it comes to all of this. In addition, when you look at vehicles, department policy, which is presumably still in effect, says that officers generally should not try to fire into a fleeing vehicle because of course, if you shoot someone driving a car, then they can't steer and they're more likely to crash into somebody else, as exactly we've seen in these sort of situations. And generally speaking, officers, no officer, no law enforcement officer has the right to fire into a fleeing suspect. And yet there have been multiple allegations of this. But beyond that, of course, chokeholds are not permissible, as they're not permissible in a lot of other law enforcement uses. And officers should not use force against somebody who does not pose a threat. They can use reasonable force to arrest someone, but we've seen a lot of instances of unreasonable force, like beating people on the ground after they've already been and take it down.
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CBC Announcer
Hi there. Steve Patterson here, host of the Debaters, the show where Canada's top comics take on the world's most important questions. This week we're asking, is shawarma the best late night food? All right, time to wrap this up. Listen, wherever you get your podcasts, what about their training?
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Jamie Poisson
Is their training different than what other law enforcement agencies would receive.
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Aaron Reichland Melnick
So normally, ICE officers go through a fairly lengthy training process at the Federal Law Enforcement Training center in Georgia that is similar to what other agents get. But unfortunately, we have seen a lot of new officers coming onto the force in recent months who have gotten less than that. Reporting from the Atlantic says that ICE has shortened the training for new officers down to just 47 days, a number picked allegedly because President Trump is president number 47. So you have a politician. This is direct from the Atlantic, from a story Nick Miroff wrote of the Atlantic in November. And what this reduction in training suggests is that ICE isn't prioritizing getting people on the ground who are the best qualified for the position and who are willing to pause a second or think through the use of force before they act. Now, the person who shot Ms. Good was not a new officer. He is, in fact, a firearms instructor. He was very well trained. He was a trainer himself of other law enforcement officers. So I don't think you can say everything that's happening is down to training. I think the broader issue here is that it's very clear that officer discipline is being actively undermined by the people in charge. Following the shooting of Ms. Good, actually, ICE did issue guidance to officers saying, for example, people who cursed officers cannot be arrested. The First Amendment protects reasonable protest. But around the same time, you had Stephen Miller and the vice president saying, ICE officers have absolute immunity and will back you 100%. Yeah, to all ICE officers.
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Minnesota Official
You have federal immunity in the conduct of your duties.
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Legal Expert
The precedent here is very simple. You have a federal law enforcement official engaging in federal law enforcement action. That's a federal issue. That guy is protected by absolute immunity. He was doing his job. The idea.
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Aaron Reichland Melnick
So I think this gets you into a dangerous situation where you have the officers on the ground who are hearing one thing from their supervisors and their training and quite another thing from the people who are in charge of the agency itself.
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Jamie Poisson
What does absolute immunity? I mean, I watched Stephen Miller say that. What does that even mean?
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Aaron Reichland Melnick
So what he is referring to there is a sovereignty clause, immunity. So in the United States federalist system, you have the federal government, which, thanks to the Supremacy Clause, is supreme over the state. So if a federal law enforcement officer does something in a state that violates a state law, but was being carried out under the officer's federal law enforcement duties, that officer does have absolute immunity. You know, a state cannot arrest a federal law enforcement officer for following their job. But very crucially, that does not apply for things that are done outside of the scope of the law enforcement's official duties. And so when you look at the killing of Ms. Good, you will see prosecutors try to focus on whether that shooting was within the course of his duties or whether it so obviously violated the Constitution as to not be a permissible use of federal law enforcement authority.
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Jamie Poisson
Right. And have there been any attempts to. To do that?
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Aaron Reichland Melnick
At the moment, the state of Minnesota say that they are carrying out an investigation. That investigation has been significantly hampered by the fact that the federal government is not cooperating with them. And at the federal government side, it seems that they are actually criminally investigating the wife of Ms. Good, allegedly for whether she might have impeded or interfered with the arrest operation. It seems that rather than investigate the officer, they may actually try to criminally charge the wife of the victim.
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Protester/Onlooker
Several career prosecutors in the U.S. justice Department's Civil Rights Division have resigned this shortly after learning there would be no civil rights probe into the fatal shooting of Renee Good.
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Jamie Poisson
Tell me about the Department of Justice's Civil Rights Division, what it would normally do in a circumstance like this and why it's not functioning as it was designed at the moment.
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Aaron Reichland Melnick
The Department of Justice DOJ Civil Rights Division normally has some authority to look into cases where law enforcement state, you know, federal law enforcement officers, really, any law enforcement officers, violate people's civil rights and they can bring prosecutions for violations of civil rights. And some of the people who worked in that office wanted to look into the situation and say, did the officer actually violate their civil rights? Was there a crime committed by the officer? And were categorically told, you're not allowed to look into this, and then resigned because of that. And I think this is a broader trend at DOJ Civil Rights, a division that has for years focused on civil rights, among others. The Civil Rights Division has been gutted by the Trump administration. They've installed someone who is focused more on garden variety culture war issues than on carrying out the mission of DOJ civil rights as it's been done for generations under bipartisan administrations.
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Federal Official
We had six prosecutors who suddenly decided they didn't want to support the men and women in ice. One of them was busy doing a photo shoot with the New York Times while ICE was out there risking their lives. So the breaking news tonight. I fired them all. They're fired from the office and our U.S. attorney.
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Jamie Poisson
I just want to put a point on this before we move on. Maybe even if you could fill in the blank for me here, like, the ability to hold individual ICE officers accountable.
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Aaron Reichland Melnick
Right now is what extremely limited And I say that because not just state and local governments are impeded because of the various immunity doctrines and the difficulties of prosecuting any federal law enforcement officer, but because it's very hard, even for family members and others to hold ICE officers accountable or any federal law enforcement officers accountable. In the United States, you cannot generally sue federal law enforcement officers for violations of your civil rights. That's different from state and local police who can be sued for money damages if they do something like illegally arrest a suspect. The ability to do that is limited because Congress has never passed a law authorizing those kind of lawsuits. And that makes it very difficult to hold individual federal law enforcement officers accountable. And that's not just limited to ice.
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Jamie Poisson
I also want to understand if there's anything that can be done to stop or prevent ICE from entering these communities or kicking them out of these communities, essentially. So Minnesota is suing the federal government over the surge in ICE operations there. They say the Trump administration is targeting them over politics and that this is a violation of free speech rights.
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Minnesota Official
We don't retreat in Minneapolis. We don't back down in Minnesota. We stand up against bullies. And right now, what we are asking for is an intervention from the court to push back on this unconstitutional conduct, pure and simple.
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Jamie Poisson
Illinois has joined them, and they're asking for a restraining order to halt the enforcement action. Is there a president for a state or a city succeeding in suing federal law enforcement to regain control of their jurisdiction? Where do the people think that this case could go?
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Aaron Reichland Melnick
Yep. All of this is unprecedented. This is something we've never really seen in. In America, at least, certainly not in the modern era where you have state government saying we are being targeted because of our politics, simply because the president doesn't like our governor, doesn't like our mayor, and doesn't like the ethnic group that represents the largest in the city. Of course, President Trump calling Somalis garbage and then deploying federal officers there.
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Donald Trump
I don't want them in our country. I'll be honest with you. Okay? Somebody would say, oh, that's not politically correct. I don't care. I don't want them in our country. Their country is no good for a reason. Their country stinks. We're going to go the wrong way if we keep taking in garbage into our country.
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Aaron Reichland Melnick
So this is a difficult lawsuit to win. And it's a difficult lawsuit to win because Congress has actually made it very hard for federal courts to impact immigration enforcement operations. In 1996, about 30 years ago, Congress passed a lawsuit stripping federal judges of Their jurisdiction to enter what are known as injunctions orders, court orders, limiting the use of immigration enforcement. But I don't think Congress in 96 envisioned anything like what we're seeing today. So it is possible that we see a judge try to find some way to get around that very difficult thing. But as a result, if you can tell from the way I'm talking about this, this is a hard case to win. And unfortunately, political accountability is probably the best way anything happens here. You know, whether we have a change in Congress come next fall could lead to some sort of drawback of DHS resources. But it's going to be very hard for the state of Minnesota to stop federal law enforcement officers from doing anything. Sanctuary policies limit local cooperation, but they're not a force field.
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Jamie Poisson
So given what you've just said, you know, I've seen that New York, Illinois, New Jersey, California have also launched bills aimed at curbing ice. But look, are you anticipating that those. Those won't be able to do much either?
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Aaron Reichland Melnick
Well, the federal government has already filed a lawsuit against Illinois's law and the law in Illinois. You know, we've seen a couple of efforts by states to limit federal law enforcement. In California, they passed a law to limit the use of face masks. The federal government's response was try us, basically, and said, we're not going to follow this law. And Illinois, similar efforts to limit the use of face masks and also to create a way so that people could sue ICE officers under individual state law. That is an interesting area where there's some legal theory that suggests that might be possible, that states could create their own way to sue federal law enforcement officers for violation of constitutional rights. But all of these sort of suggest that states can act on the margins and they can push new legal theories, but anything decisive, you know, an action taken by state legislature that will change the federal government's behavior overnight. I don't think that's possible at this moment.
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Jamie Poisson
So Minnesota Governor Tim Walz, who I'll just note is being now investigated by the Trump DOJ for allegedly obstructing ice. So is Minneapolis Mayor Jacob Fry. They both say that these are politically motivated investigations.
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Reporter/Narrator
Frye responding on social media, calling it an obvious attempt to intimidate me for standing up for Minneapolis against the chaos and danger this administration has brought to our streets. Walls slamming the administration and calling the federal investigation of good shooting into question, saying weaponizing the justice system and threatening political opponents is a dangerous authoritarian tactic.
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Jamie Poisson
Walsh is saying that he's put the Minnesota National Guard on standby. In case they need to ensure that peaceful demonstrations against ICE there can continue. What could that potentially accomplish?
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Aaron Reichland Melnick
It's hard to say. He hasn't stated exactly what he would do with those officers. And of course, he is the commander in chief of the Minnesota National Guard, and he can deploy them as he sees fit under Minnesota law. Whether that means actually using the National Guard to protect protesters from federal agents. You know, that would be a shocking moment in American political history, really, especially given the ways in which the National Guard has been deployed in the past. Ironically, that might itself lead the Trump administration to escalate. So my fear, of course, is that both sides are in an escalation spiral right now, but the one with the most power, the federal government, is the one leading the charge.
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Jamie Poisson
And I guess, like, what if he brings in the military? And so what the Minnesota National Guard is facing off against the US Military.
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Aaron Reichland Melnick
I certainly hope we don't get anywhere near that situation. My suspicion in that situation would be that President Trump would seek to federalize the Minnesota National Guard and also seize control of them. Whether he could do that, under what authority, all of this remains to be seen. But certainly, I think it would be a very bad time for the United States should we see something like that. My hope is that it will be avoided. Aaron.
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Jamie Poisson
I mean, you watch this really closely than most people. Like, what. What is it that you're watching for over the coming days and weeks?
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Aaron Reichland Melnick
I think it's really interesting. It will be interesting to see whether the Trump administration keeps escalating. They have threatened to send even more federal law enforcement agents to the city of Minneapolis, expand and to expand their immigration crackdown. And for people who haven't been following those details, it's really crucial to understand why this is causing so much backlash because the federal government is arresting people with legal status. One of the things that is going on in Minneapolis is something known as Operation Paris P A R R I S, which is a government operation to detain lawfully present refugees and then fly them to Texas to be interrogated about whether they had their were granted their refugee status properly by the Biden administration. So you are seeing legal immigrants being detained for interrogation by federal immigration officers, and that is causing an explosion and a groundswell of support for protesters and others in the city. So if the government continues to accelerate in this situation, I think you will see more protests. I think that will potentially lead to more push from the federal government. But beyond that, I'm also looking at them expanding these operations. There have been talks that they are going to expand these refugee re arrests to Maine, potentially to the Lewiston, Maine, and Portland, Maine. And as they get more officers on board, this system is going to expand to other cities. Right now, the Trump administration seems to only be able to do one of these large scale operations at a time. But as new officers come online, as they get their 10,000 new ICE officers and the funding for that, I think we might see this, these type of tactics being expanded to other cities.
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Jamie Poisson
Okay, Aaron, thank you so much for this. This is really interesting, and it was great to have you on. Thank you.
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Aaron Reichland Melnick
Thank you so much for having me.
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Jamie Poisson
All right, that's all for today. I'm Jamie Poisson. Thanks so much for listening. Talk to you tomorrow.
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CBC Announcer
For more cbc podcasts, go to cbc ca podcasts.