Judge Finds 'Compelling And Troubling' Evidence Of Racial Profiling By Federal Agents In MN

By Max Nesterak Max Nesterak Alyssa Chen Brian Martucci, Minnesota Reformer

A U.S. district court judge in Minnesota found “compelling and troubling” evidence that federal agents racially profiled Somali and Latino residents during the immigration crackdown known as Operation Metro Surge.

The 111-page ruling by U.S. District Judge Eric Tostrud, an appointee of President Trump, adds weight to claims in a lawsuit brought by the American Civil Liberties Union that the federal government authorized its agents to arrest people based solely on their race or ethnicity to fulfill the Trump administration’s demand for mass deportations.

“Plaintiffs have made a clear showing that defendants have adopted a policy authorizing federal immigration officers to conduct investigatory stops based on ethnicity or race without reasonable suspicion that the individuals were violating immigration laws,” Tostrud wrote.

Despite acknowledging the substantial evidence of aggressive and unconstitutional immigration enforcement, Tostrud did not grant a preliminary injunction against the federal government ordering them to stop the practice in his ruling filed on Monday.

He wrote that because Operation Metro Surge is now winding down, the residents who brought the case are unlikely to be harmed again in the immediate future. Tostrud also declined to provisionally certify the case as a class-action lawsuit, which would cover all residents racially profiled during the operation, although it could be in the future.

“This is an important vindication of the rights of Minnesota residents who have been racially profiled,” said Catherine Ahlin-Halverson, an ACLU-MN staff attorney. “We’re disappointed not to have a preliminary injunction in place but we think this decision is foundation for further accountability.”

The lawsuit will continue and Tostrud said it is likely to succeed in its claims that the federal government violated residents’ Fourth Amendment protections against unreasonable search and seizure.

The lawsuit filed on behalf of three American citizens in mid-January is part of a wave of litigation in response to the federal incursion of some 3,000 immigration agents to the state from December through February, which the Department of Homeland Security called its largest operation ever.

The ACLU has also filed suit over widespread abuses of bystanders, demonstrators and journalists by federal immigration agents. And lawyers have filed more than 1,000 lawsuits challenging the detention of immigrants, which have been mostly successful and led federal judges to threaten Department of Justice leaders with contempt.

The lead plaintiff in the racial profiling case is Mubashir Khalif Hussen, a 20-year-old who was tackled and put in a chokehold after he ran away from agents in the Cedar-Riverside neighborhood of Minneapolis. He repeatedly told them he is a citizen, and said he asked to show the agents his passport or driver’s license as they put him in the back of an SUV.

Hussen testified in court that his employer even chased down the SUV and showed a copy of his passport through the windshield, but agents did not release him.

One of the ICE officers involved in the arrest, William Berry, submitted a declaration to the court that contradicted much of Hussen’s account, but the judge didn’t find him entirely credible. For instance, Berry said that he didn’t see anyone trying to show agents Hussen’s passport, despite bystander video evidence to the contrary.

“It would have been impossible for someone in the SUV not to notice the man standing at the front of the vehicle, obstructing the vehicle’s path, showing the passport card copy,” Tostrud wrote.

The agents drove Hussen to the Whipple Federal Building, where they shackled his legs and took his fingerprints. They didn’t present a warrant or even seem to know who he was and released him about two hours later.

The other two named plaintiffs are Mahamed Eydarus, a 25-year-old citizen of Somali descent, and Jonathan Aguilar Garcia, a 22-year-old Latino citizen.

Eyadarus was shoveling snow out of a parking spot in Minneapolis one morning with his mother when more than half a dozen armed men got out of unmarked cars and demanded he prove he was “not illegal” as two livestreamers filmed the incident. At one point, the agents asked his mother to remove her niqab, a religious face covering, and asked why she was speaking a “foreign language.” The agents detained them for about half an hour before leaving without arresting them.

Aguilar Garcia was working at Target delivering drive-up orders in Richfield when masked agents and former Border Patrol Commander-at-Large Gregory Bovino approached him and another Latino worker in the parking lot and asked if they were citizens. Aguilar Garcia replied “f*ck you” while filming them — in accordance with his First Amendment rights, his lawyers noted in court filings.

Agents tackled him in the store’s entrance and pinned him down with a knee on his neck, in an incident that was widely shared online, before taking him and his coworker away in an unmarked SUV as he yelled he was a U.S. citizen. They released Aguilar Garcia about two hours later at a Walmart one town over in Bloomington.

“There were many white people at Target the day Mr. Aguilar Garcia was arrested; they also yelled at the agents, but they were not questioned, photographed, harassed, followed, tackled, or arrested,” Tostrud wrote. “I find that Mr. Aguilar Garcia was stopped and detained based solely on his race or ethnicity.”

Tostrud found that the federal government adopted a policy to stop and question people about their immigration status based solely on their race or ethnicity based on the testimony from 23 people. He also found the federal government adopted a policy to arrest people without warrants or probable cause that they were violating immigration laws based on testimony from 11 people.

Lawyers for the federal government did not produce any witnesses during an evidentiary hearing in February to contest the allegations. They did submit statements and declarations from federal officials stating that the government’s training and policies adhere to the constitution.

Government lawyers also argued the incidents presented as evidence represented a tiny sample of the thousands of arrests made during Operation Metro Surge, and that they don’t show it was government policy to racially profile people.

The judge found that not persuasive, writing that the plaintiffs submitted a “significant volume of testimony” in a short time frame.

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