Wisconsin Battles Over ICE

U.S. Immigration and Customs Enforcement. (Public Domain).

The video is chilling: masked men in black surround a person, offer no identification, and snatch the person off the street. International students legally attending universities in America are being grabbed this way, with no due process, no legal proceeding and put in custody. Some immigrants seized have been flown to a prison in El Salvador. President Donald Trump has even suggested American citizens could be treated this way.

In Milwaukee, Immigrations and Customs Enforcement (ICE) agents entered the hallways of the Milwaukee County Courthouse to arrest two individuals on March 20 and April 3. County officials and civic leaders held a press conference condemning this, as Urban Milwaukee reported, noting that the individuals arrested by ICE had not yet been found guilty of a crime and were participating in the judicial process.

“It’s a hallmark of the fairness of our justice system that the vast majority of people submit to it voluntarily, including those accused of crime in these hallways every day,” said Craig Mastantuono, a local criminal defense attorney. “And that’s because our system is fair and affords due process and a right to counsel to everyone accused.”

Speakers at the press conference noted that immigrants who enter the courthouse might be there to access vital government services, or as a victim or witness to a crime. If they fear being snatched by ICE agents, they may stay away, undermining the legal system.

Any policy that prevents people from participating in the judicial system is “flawed” and “a solution in search of a problem,” Mastantuono charged.

Arrests by ICE, have never been done like this, “with a complete lack of transparency and a random manipulation of government authority,” he noted.

“Perhaps the cruelty is the point,” he charged. “Perhaps chilling the immigrant community and making them fearful is the point.”

Last week ICE agents tried to arrest another individual at the courthouse. WISN talk show host Dan O’Donnell did what he called a “Bombshell” story, that “The FBI is investigating Milwaukee County Circuit Court judge Hannah Dugan for allegely helping an illegal immigrant defendant in her courtroom evade ICE arrest.” O’Donnell, of course, is an entertainer and need not prove any claims he makes.

But the Milwaukee Journal Sentinel jumped on this with a story citing “sources” saying there is an FBI investigation of Dugan. Yet it quotes the FBI saying it would not confirm or deny any investigation. And Dugan offered an email saying “Nearly every fact regarding the ‘tips’ in your email is inaccurate.”

At this point it is difficult to know precisely what happened, other than that ICE agents showed up at the courthouse. Chief Milwaukee County Circuit Judge Carl Ashley wrote an email to judges saying the agents presented a warrant to arrest the individual, but Dugan responded to the email saying this: “As a point of clarification below, a warrant was not presented in the hallway on the 6th floor [where her court is located].”

The crucial distinction here is between a “judicial warrant” and an “administrative warrant.” Judge Marisabel Cabrera wrote in an email to the other judges saying it was her understanding ICE agents had presented an administrative warrant. A judicial warrant is issued by a court based on probable cause and subject to the protections of the Fourth Amendment. An administrative warrant is simply issued by an ICE officer and need not comply with the requirements of the Fourth Amendment.

The Milwaukee Police will only honor a judicial warrant. “An administrative warrant is not a criminal warrant signed by a judge, and it shall not be used by any department members as the basis to detain or arrest a person,” its rules of procedure state. The Milwaukee County Sheriff’s Office follows a similar policy, as Urban Milwaukee has reported.

If Judge Dugan didn’t cooperate with ICE agents — and so far no one has proven this — she was arguably operating just as the Milwaukee Police and Sheriff’s officers do, not to mention in compliance with the U.S. Constitution.

Gov. Tony Evers entered the fray last week as well, writing a memo with “Instructions for State Employees Encountering ICE.” It too stresses that ICE agents must present a judicial warrant:

“Remember that every state employee has a duty to protect confidential data and information collected or maintained by the State of Wisconsin… state employees may not grant ICE or another agent access to any such data or information absent authorization from their legal counsel pursuant to a valid judicial warrant.”

Republicans blasted the memo, as Wisconsin Public Radio reported. “Instructing his employees to either break federal law or not cooperate with law enforcement is a new low for Tony Evers,” Republican Assembly Speaker Robin Vos charged. “Now he’s telling every single state employee to ignore a warrant. It’s really embarrassing.”

But Tim Muth, a senior attorney with the American Civil Liberties Union of Wisconsin, called Evers’ memo “a pretty plain, vanilla document that is consistent with the Fourth Amendment… If ICE is complying with its obligations under federal and state law and under the Constitution, they shouldn’t be concerned about having to fulfill these requirements.”

That’s all the county and state officials are asking for: adherence to the Constitution. Or as the elderly woman protesting Trump’s policies in Wauwatosa on Saturday wrote on the sign she held: “Due Process is the American way.”