Opinion | Appeals Court decision on retaliation against protesters is troubling

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The unprecedented presence in Minnesota of what looks like an occupying federal force is generating judicial orders at a rapid pace, but we should not forgo a critical analysis of the first major appellate order. It’s a troubling, split decision from the U.S. Court of Appeals for the Eighth Circuit denying early relief for protesters who sued over retaliation against their exercise of First Amendment rights.

Based on detailed affidavits and video through mid-January, the protesters presented to the U.S. District Court strong evidence of retaliatory stops, detentions, arrests and pepper-spraying by federal agents. The government’s response denying or explaining the incidents was weak, consisting mostly of an affidavit from a high-ranking supervisor that stacked hearsay upon hearsay.

District Judge Katherine Menendez then did what any prudent federal trial judge would do: She explained what evidence she was admitting, weighed it, applied the law, then issued an injunction prohibiting future retaliation using the specific tactics proven. The court ordered that the federal agents in Operation Metro Surge not retaliate against observers and protesters by use of arrests, stops, detention or pepper-spray unless they had other legal suspicion or cause to do so. The court made crystal-clear that the injunction did not prohibit enforcement of any immigration laws.

That seems simple enough. Indeed, at first the injunction seemed too simple to Secretary of Homeland Security Kristi Noem, who said it was a “little ridiculous” because it “didn’t change anything for how we’re operating on the ground, because it’s basically telling us to do what we’ve already been doing.”

Nevertheless, she appealed. In a 2-1 decision, an Eighth Circuit panel “stayed” the injunction indefinitely. In the majority were Judges Bobby Shepherd from Arkansas and David Stras from Minnesota. Judge Raymond Gruender from Missouri would have allowed the injunction for retaliatory pepper-spraying.

Rather than deferring to the district court’s review of sworn affidavits and videos, the panel majority seems to have relied on its own review of the videos. It observed that some of the protesters weren’t peaceful and that videos don’t always provide context. Therefore, it worried that in contempt proceedings to enforce the injunction there could be “wrong calls” about which protester was peaceful and which was not, and which agent retaliated and which did not.

The majority’s worry seems misplaced if, as the majority also asserted, “all it [the injunction] says is to follow the law.” In any event, isn’t that why we have courts — to decide, when someone is charged with contempt, whether violations have been proven by competent evidence? Isn’t that why we have trials and appeals? It strikes me that the majority displays too much confidence in executive branch officials and agents (and in itself, deciding which facts to weigh) and too little in the district judges on the front lines.

It’s unfortunate that the appellate majority gave so little deference to the district court’s careful assessment of the facts on the ground here in Minnesota. That assessment has been fully validated as the entire nation has seen federal agents engaged in wildly disproportionate uses of force in response to being followed, photographed and heckled.

As more decisions are appealed, we’ll see if this oddly reasoned opinion and its notable lack of deference to the district court is an outlier or is part of a pattern. Regardless, I expect that our District of Minnesota jurists will continue to do what they do best: consider the evidence, find the facts and apply the law to the facts.