On December 17 six named plaintiffs filed a class action lawsuit in federal court here seeking to declaratory and injuncitve relief against Kristi Noem et al. The case is styled Tincher v. Noem. The complaint in the lawsuit is accessible here. It alleges a variety of illegal misconduct by ICE officers against plaintiffs.
The lawsuit is a project of the Minnesota chapter of the American Civil Liberties Union (MCLU). MCLU has retained prominent counsel including lawyers from Ciresi Conlin, Forsgren Fisher McCalmont DeMarea Tysver, and Riach Law to represent plaintiffs. The case was assigned to Judge Kate Menendez.
When the state of Minnesota’s lawsuit (i.e., Keith Ellison’s glorified press release) was filed earlier this week, the civil cover sheet indicated that the MCLU lawsuit was a related case. That would account for the assignment of the Minnesota lawsuit to Judge Menendez. The cities of St. Paul and Minneapolis are also nominal plaintiffs in that lawsuit.
The nominal plaintiffs in Tincher have filed declarations detailing the misconduct they allegedly suffered. You can read all about it in the complaint or in accounts of yesterday’s hearing such as this MPR story.
Department of Justice attorneys Jeremy Newman and Kathleen Jacobs appeared on behalf of the government defendants to oppose the pending motion for a preliminary injunction. An attorney friend attended the hearing, sent me his notes, and called me to talk about it yesterday afternoon. He observed that the government appeared to lack substantial evidence to oppose the pending motion, or that Judge Menendez’s questioning expressed her concern to that effect. She asked why defense counsel had failed to file first-hand statements by the arresting officers bearing on plaintiffs’ declarations. As the MPR story puts it:
Menendez questioned the attorneys over why the department hadn’t issued additional evidence from agents at the scene of the cases in question and said that without it, she was relying on hearsay from a regional ICE field officer. She called on the department to provide video evidence from officers’ cell phones or body-worn cameras, if it exists. “Why don’t I have the officers’ testimony before me?” she asked Newman and Jacobs.
By the way, my friend counted 12 attorneys and/or legal assistants in the courtroom on behalf of plaintiffs. In the notes he prepared for me following the hearing he reported that Judge Menendez asked detailed questions regarding the language of an injunction. It appears to me that she is will grant some form of preliminary injunctive relief — this week.
My friend added that Judge Menendez concluded the hearing with a request for letter briefs from the parties on whether she could order plaintiffs and the government to produce any further videos of the incidents at issue. Apparently one or more ICE officers recorded incidents in issue. Judge Menendez also said she wanted to issue a written decision on Thursday. My friend concluded that “an injunction will issue and the anti-ICE folks will declare victory.”
I take it that the government is in some disarray defending this lawsuit, or in some disarray period. Neither defendants nor the Department of Justice lawyers have their act together. They have gotten off on the wrong foot with Judge Menendez in this case. They needed to have their act together yesterday and need to get it together now.
Dear Assistant Attorney General for Civil Rights Dhillon, please send in reinforcements.
Injunctive relief in any form is subject to appeal even while the case is pending. It is not subject to the general jurisdictional rule requiring a final judgment before appeal can be taken. The Eighth Circuit is a conservative appellate court. However, if the government has failed to create a record sufficient to resist injunctive relief, that is a problem that the Eighth Circuit cannot fix.
