On December 17 six named plaintiffs filed a purported class action lawsuit in federal court here seeking 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 the named 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. Department of Justice attorneys Jeremy Newman and Kathleen Jacobs represent the named defendants (i.e., the government). The case was assigned to Judge Kate Menendez.
I reported on the initial hearing held in the lawsuit earlier this week in “Who came first.” In that post I observed that the hearing did not go well for the government and that Judge Menendez intended to issue an order by the end of the week.
Thus it has come to pass. Judge Menendez has granted preliminary injunctive relief on a class-wide basis (without the inconvenience of a hearing or order on class certification). I have embedded the 82-page order via Scribd at the bottom. The New York Times reports on the order in Mitch Smith’s story “Judge Restricts Immigration Agents’ Actions Toward Minnesota Protesters.” The AP reports on it in Audrey McAvoy and Steve Karnowski’s accessible AP story “Judge rules feds in Minneapolis immigration operation can’t detain or tear gas peaceful protesters.”
On its face, the order may appear reasonable, but it is unreal. I think it reflects the judge’s intense desire to insert herself in an obstructive manner into the ongoing battle between federal law enforcement and the organized resistance to it in the Twin Cities. Not too put too fine a point on it, from the perspective of law enforcement — from the perspective of the covered officers confronting the unlawful misconduct with which they are dealing on a daily basis — it must be a giant pain in the ass.
On the issue of class-wide relief, Judge Menendez writes (at page 73):
Plaintiffs have asserted the claims here on behalf of not only themselvesindividually, but on behalf of a class of similarly situated individuals defined as: “All persons who do or will in the future record, observe, and/or protest against the DHSimmigration operations that have been ongoing in this District since December 4, 2025.” While Plaintiffs have not moved for class certification, nor has the Court granted it, Plaintiffs seek immediate interim relief on a class-wide basis. The Court concludes that limited class-wide relief is appropriate at this stage…
Here is the operative language binding covered officers (at page 82):
Covered Federal Agents are hereby enjoined from:
a. Retaliating against persons who are engaging in peaceful and unobstructive protest activity, including observing the activities of Operation Metro Surge.
b. Arresting or detaining persons who are engaging in peaceful and unobstructive protest activity, including observing the activities of Operation Metro Surge, in retaliation for their protected conduct and absent a showing of probable cause or reasonable suspicion that the person has committed acrime or is obstructing or interfering with the activities of Covered Federal Officers.
c. Using pepper-spray or similar nonlethal munitions and crowd dispersal tools against persons who are engaging in peaceful and unobstructive protest activity, including observing the activities of Operation Metro Surge, in retaliation for their protected conduct.
d. Stopping or detaining drivers and passengers in vehicles where there is no reasonable articulable suspicion that they are forcibly obstructing orinterfering with Covered Federal Agents, or otherwise violating 18 U.S.C.§ 111. The act of safely following Covered Federal Agents at an appropriate distance does not, by itself, create reasonable suspicion to justify a vehicle stop.
These provisions raise questions of fact subjecting federal officers to being hauled before Judge Menendez and proving his compliance in the face of the venomous multitudes seeking to obstruct them in the discharge of their duties. Every use of pepper spray or the like can give rise to a claim that the “protester” was the reincarnation of Mahatma Gandhi. The order puts covered officers in an extremely difficult or untenable position, as it seems to me intended to do.
Those engaging in unobstructive protest activity are not neatly separated from the organized resistance. Is a particular arrest or use of a crowd dispersal tool in retaliation for unobstructive activity or to clear the resistance out? To protect officers from unlawful activity?
The Times story quotes DHS spokesman Tricia McLaughlin:
“D.H.S. is taking appropriate and constitutional measures to uphold the rule of law and protect our officers and the public from dangerous rioters.”
She said agents had faced assaults, had fireworks launched at them and had the tires of their vehicles slashed. She added that despite “grave threats,” agents had “followed their training and used the minimum amount of force necessary to protect themselves, the public and federal property.”
Judge Menendez has refused the government’s request for a stay pending appeal (at page 81). She generously allows that “of course” the government can seek a stay pending appeal from the Eighth Circuit. In other words, Judge Mendenedez has restrained herself from limiting the statutory jurisdiction of the appellate courts — a power she obviously lacks.
Gee, Judge Menendez, that’s mighty big of you.
Injunctive relief in any form is subject to appeal even while the case remains pending. It is not subject to the general rule requiring a final judgment before appeal can be taken. One can only hope that the government attorneys get their act together over the weekend.
In any event, there is more to come. Judge Menendez has Attorney General Keith Ellison’s joke of a lawsuit pending before her. What comes next?
