Appeals Court Blocks Injunction Against ICE in Minneapolis

I would not read a lot into today’s Eighth Circuit order of an administrative stay that, for the moment, blocks an injunction that would restrict ICE enforcement operations in Minneapolis. The injunction was ordered last Friday by Judge Kate M. Menendez, a Biden appointee.

As we’ve previously noted a number of times, an administrative stay is about as far as it gets from a ruling on the merits. It’s not even a ruling on the temporary injunction, which itself is not a ruling on the merits. Instead, an administrative stay is a brief time-out while a superior court familiarizes itself with the facts in dispute and the actions taken by the lower court.

Here, the circuit merely restored the status quo in existence prior to Judge Menendez’s ruling. Its order is all of one sentence long — again, indicating that the circuit hasn’t grappled with the case yet.

Menendez issued the temporary injunction (TRO), in an 83-page order, based on what appears to be an exhaustive review of witness statements and videos of ICE operations in Minneapolis. She found a number of ICE excesses and potential violations of constitutional rights.

In the main, her injunction admonishes agents to refrain from doing that which the law already forbids (e.g., don’t retaliate against people engaging in peaceful, unobstructive protest). In particular, ICE and the Justice Department object because the TRO purports to bar them from doing some things the law permits (e.g., stopping and restraining people who are not forcibly obstructing or interfering with them; Supreme Court Fourth Amendment jurisprudence has long upheld the authority of police to do brief investigative stops based on reasonable suspicion).

The main problem with the TRO is that a court has no business placing prior restraints on police investigations or superseding what the Supreme Court has held are proper police tactics.

That is not to say ICE has done everything right. To the contrary, Menendez portrays troubling incidents, including the forcible handling of people who appear to have done nothing wrong — indeed, one man was accosted after, as videos show, he was encouraging bystanders not to interfere with ICE agents.

But the thing is: If agents violate the law, they and their agency are subject to lawsuits — although, to be fair, the agents have a high degree of immunity if they are engaged in official conduct and are not patently violating a known legal standard.

To repeat what I said in discussing Minneapolis with my friend, Powerline’s Scott W. Johnson (who was way ahead of the curve on the now infamous shenanigans of Minnesota political officials), what gives a court jurisdiction to act is the actual occurrence of a concrete legal harm that has caused damage — not the supposition that legal harms and damage might occur. That being the case, it is dangerous to public safety for a judge to put police in fear that action the Supreme Court says is lawful might nevertheless land them in legal jeopardy.

In any event, I expect the Eighth Circuit will continue blocking Judge Menendez’s injunction until it rules on the Justice Department’s appeal of that injunction. I also anticipate that the circuit will expedite consideration of that appeal. We’ll probably get a scheduling order in the next few days.