Dugan Seeks Dismissal of Charges, Cites Judicial Immunity

Judge Hannah Dugan. Photo from Hannah Dugan for Judge.

Milwaukee County Circuit Court Judge Hannah Dugan is seeking dismissal of the federal charges brought against her for allegedly obstructing a federal immigration operation.

Dugan’s attorneys filed a motion to dismiss Wednesday, arguing judicial immunity from prosecution and that the prosecution violates the system of separation of powers set up by the U.S. Constitution. It also suggests Dugan has evidence that will cut against the facts of the prosecution’s case in court. Dugan is being represented by a crack legal team of attorneys from across the nation and political spectrum.

“The problems with this prosecution are legion, but most immediately, the government cannot prosecute Judge Dugan because she is entitled to judicial immunity for her official acts,” her attorneys wrote in the motion. “Immunity is not a defense to the prosecution to be determined later by a jury or court; it is an absolute bar to the prosecution at the outset.”

To support their motion, her attorneys are employing the legal precedent set in Trump v. United States, to support their argument that immunity for official acts is a bar to prosecution. The Supreme Court ruled in that case that the president has “absolute immunity” from prosecution for actions within his “exclusive sphere of constitutional authority” and that courts may not “adjudicate criminal prosecution that examines such presidential actions.”

Dugan’s motion comes less than 24 hours after she was indicted by a grand jury, which is a panel of citizens who are asked to determine whether the government has established probable cause to charge someone. Under the U.S. Constitution, a person cannot be made to stand trial for a crime in federal court until such a panel establishes probable cause.

Following her indictment, one of her attorneys, Craig Mastantuono, released the following statement: “As she said after her unnecessary arrest, Judge Dugan asserts her innocence and looks forward to being vindicated in court.”

Dugan was arrested by federal agents April 25 at the Milwaukee County Courthouse, following a event that took place the week prior. Federal prosecutors alleged, in an initial criminal complaint, that Dugan obstructed an Immigration and Customs Enforcement (ICE) operation and concealed a person from arrest.

The individual was Eduardo Flores-Ruiz, an undocumented Mexican immigrant, who was appearing in Dugan’s courtroom on three counts of misdemeanor battery. Flores-Ruiz was previously deported in 2013. ICE identified him for deportation action when his biometric data was logged by the Milwaukee County Sheriff‘s Office (MCSO). On April 18, federal agents showed up outside of Dugan’s courtroom to arrest him.

It’s alleged in the criminal complaint and the indictment that Dugan confronted the agents and asked for a warrant. They presented her with an administrative warrant, which is different from a judicial warrant signed by a judge. She is alleged to have directed Flores-Ruiz and his attorney to use a side door out of her court room, and to have told him that he can appear virtually for his next court hearing. Federal agents followed him out of the courthouse, before chasing him down and arresting him,

Her attorneys say these actions, which they characterize as “directing people’s movement in and around the courtroom” and “advising a party that he could appear remotely,” would fall under official judicial acts.

“Even if (contrary to what the trial evidence would show) Judge Dugan took the actions the complaint alleges, these plainly were judicial acts for which she has absolute immunity from criminal prosecution,” her attorneys wrote. “Judges are empowered to maintain control over their courtrooms specifically and the courthouse generally.”

Her attorneys also argue that the federal laws the government is using to prosecute Dugan do not cancel out her judicial authority, and that Congress doesn’t have the constitutional power to pass laws that would criminalize official acts of state judges, citing the constitution’s separation of powers.

Dugan’s arrest and prosecution, her attorneys argue, takes for the federal government powers that are left to the states, interfering with state judicial powers and authority and violating Wisconsin’s state sovereignty.

“The federal government violated Wisconsin’s sovereignty on April 18 when it disrupted Judge Dugan’s courtroom, and it is violating Wisconsin’s sovereignty now with this prosecution,” her attorneys wrote.

Dugan will appear for an initial hearing in her case on May 15.