OMG YES!!! JUDGE ABSOLUTELY SPANKS ICE AND NEWLY MINTED DHS DIRECTOR MARKWAYNE MULLEN FOR MAKING SH*T UP!!
This week Judge Nancy Brasel of the Minnesota Federal District Court tore DHS, and by extension their newly minted director Markwayne Mullen (hey, his name is even in the caption now) to pieces for, among other things, *making stuff up*! Seriously, you can’t make this stuff up! (See what I did there?)
(Oh yeah, she also issued not just a preliminary injunction, but a *”mandatory* preliminary injunction”! Meaning rather than just maintaining the status quo, as is the aim of a TRO and standard preliminary injunction (“PI”), it requires that enjoined party to do some *affirmative*, remedial action.)
This case was brought by the organization Advocates for Human Rights on behalf of several detainees who had been detained at and processed through the Whipple ICE detention facility in Minneapolis.
In a blistering 69-page opinion and order (included for Notes from the Front members) Judge Brasel didn’t just issue a preliminary injunction, and didn’t just *annotate the opinion* and give it a *table of contents* (very unusual for a court opinion), and doesn’t just *meticulously* go through each point (assuring nearly zero chance of successful appeal); she also blistered, removed, chopped into little bits, and then handed ICE their backsides.
The *very first words* out of her printed mouth are:
“In recent months, as part of “Operation Metro Surge,” Immigration and Customs Enforcement arrested thousands of noncitizens without warning, brought them to a holding facility, flew them across the country, and pressured them to sign self- deportation documents – all without the opportunity to speak with an attorney. Attorneys were refused physical and phone access to their clients, and vice versa. Often, attorneys did not know when or where their clients were detained.”
Oh, you just *know* it’s not going to get any better for them! And it doesn’t. The very *next* paragraph says:
“Due process is not a game of keep-away. ICE recognizes detainees’ right to access counsel in theory and written policy, but not in practice. Instead, it has placed obstacle after obstacle in front of detainees and their attorneys, blocking communication between clients and counsel.”
(pausing a moment to rub hands with glee)
Now, Judge Brasel refers to the TRO that she had put in place previously in this case, and acknowledges that Defendants *have* made efforts to comply, and that in fact things with respect to locating detainees, not transferring detainees away from Minnesota for at least 72 hours after they are detained, and some other requirements of the TRO *have* gotten better. But detainees’ access to counsel, and vice versa, is still *very* problematic.
After recounting the hardships faced by many at the Minneapolis Whipple detention facility, she goes through an analysis in order to grant provisional class certification. Class certification means you have identified a class of people to whom a decision will apply, beyond the plaintiffs. And Judge Brasel explains that she doesn’t even need to go through this analysis, but she *does anyway* (again, appeal-proofing).
“True,” she explains in the class certification section, “Defendants may not impede a detainee’s access to counsel in exactly the same way each time. Even so, each type of deprivation results in the same constitutional injury.”
Then, in what I am sure will come to be known in legal circles and law schools as “Judge Brasel’s footnote 19”, she says this (read this carefully, don’t skim over it! And maybe don’t have any liquid in your mouth while you read it.):
“Perhaps most egregiously, Defendants twice quote Planned Parenthood Minnesota, North Dakota, South Dakota v. Rounds, for the propositions that: (a) mandatory injunctions are “particularly disfavored,” and (b) Plaintiffs must show a likelihood of success on the merits by a “heavy and compelling weight of evidence” rather than a fair chance of success. Neither of these quotes appear in Planned Parenthood, nor in any Eighth Circuit case the Court has found that addresses injunctions. Even under the most charitable of readings, Planned Parenthood cannot possibly stand for such a proposition; the case discusses the heightened burden that applies to enjoining state statutes and does not involve mandatory injunctions at all. This portion of Defendants’ brief included other mis-citations as well.”
In other words, THEY MADE STUFF UP! Either that, or they used AI and the AI MADE STUFF UP!
Now, I’ve seen a lot of commentary on this that says that the DOJ lawyers must have relied on artificial intelligence (AI) in order to arrive at such an – to use Judge Brasel’s word – egregious falsity. But I think that underestimates the non-artificial intelligence level of the current crop of attorneys at the DOJ. Or, in the alternative, if their level of intelligence isn’t low enough to explain such a misreading, then their level of dishonest making stuff upitude and thinking the judge won’t catch it may be. My point is that the use of AI is only one possible explanation for the falsehoods in their brief.
Judge Brasel wraps Footnote 19 up by saying, about their false citations:
“The Court questioned Defendants’ counsel at the hearing and received unsatisfactory responses.”
(snort)
Then she goes on to issue that mandatory preliminary injunction, *requiring* ICE to, among several other things:
Provide a “list of free legal service providers, and written notification of the Detainee’s A-number shall be furnished to each Detainee in English, Spanish, Somali, French, and Hmong.” AND that “Defendants shall provide, without charge, to each Detainee who is illiterate or not proficient in any of those languages an in-person or telephonic oral translation of these materials,” AND that “Defendants shall provide Detainees with reasonable and equitable access to telephones. Within one hour of detention and prior to being transferred out of the Whipple Federal Building, Detainees shall be provided free, private, and unmonitored access to the telephone. Defendants shall permit Detainees to make a reasonable number of calls necessary to reach counsel or family.”
ALL WITHIN ONE HOUR OF THEIR BEING DETAINED!
Oh, I almost forgot to mention: guess who appointed Judge Bresel?
Notes from the Front members: this beautiful opinion and injunction is in your inbox now. You’ll want to save this one so that you can say that you have the actual opinion featuring the sure-to-be-infamous Footnote 19. And, oh yeah, the rest of the spanking is pretty darned good too!
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https://annepmitchell.substack.com/p/omg-yes-judge-absolutely-spanks-ice
P.S. If you actually read all the way to the bottom please leave a comment that includes the word “rabbit”. It will show me that my efforts aren’t in vain and that people actually *do* these things, and it will drive those who just skim crazy wondering why everyone is talking about rabbits. ;~)
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