Like many people in the Twin Cities, Jess has been observing ICE officers: following them in her car and documenting their actions. Earlier this month, she was in North Minneapolis, when immigration agents told her and another observer they were impeding a federal investigation.
"We followed at a distance. We never got in front of them. We never honked our horns. We never made any sort of noise. We were just keeping an eye on them," said Jess, who requested NPR only use her first name because she fears retaliation from the federal government.
She says she kept tracking the officers at a distance. But then the three vehicles she was following turned around and drove toward her. Federal agents hopped out.
"They all had their guns drawn. I kept saying, 'What you're doing is illegal. You have no right to do this,'" she said. "At that point, they started breaking my window. All I could think about was not being shot."
One officer shattered her driver's side window with a baton. At that, she opened the door. The agents pulled her out and handcuffed her. She was detained for about eight hours.
Now, Jess is waiting to see whether the federal government is going to charge her with a crime for observing its actions. She is not the only person in that position. NPR spoke with several other observers in Minnesota who said immigration officers told them they were impeding federal investigations.
'Perfectly lawful conduct'
Increasingly, the Trump administration is attempting to criminalize the actions of people tracking and observing its immigration officers, using one particular federal statute: A law that makes it illegal to forcibly impede or interfere with a federal officer.
"While the Trump administration supports everyone's First Amendment right to freedom of speech and assembly and to petition, it has to be done lawfully and peacefully, because we will not tolerate unlawful actions committed by agitators who are just causing havoc," White House border czar Tom Homan said in a Feb. 12 press conference announcing plans to end the enforcement surge in Minnesota.
Homan pointed out, accurately, that "forcibly assaulting, resisting, opposing, impeding, intimidating or interfering with a federal law enforcement officer is a crime." But legal experts say that's not what observers are doing.
"A lot of the activities that the government is claiming are interfering or obstructing, in the vast majority of those examples, they're engaged in perfectly lawful conduct," says Scarlet Kim, a senior staff attorney with the Speech, Privacy, and Technology Project at the ACLU, which is suing the administration for violating the First Amendment rights of protesters and observers in Minnesota.
At least three dozen people who gave statements under oath in the ACLU lawsuit said that while observing immigration activity, federal officers told them they were impeding or interfering with an investigation, or that what they were doing was illegal.
It is legal to observe and record officers and shout, whistle or honk at them. Following them in a car at a safe distance is also legal, Kim told NPR.
There are limits: Stepping into an officer's way or touching an officer are more likely to cross the line from observing to impeding, for instance. But that line also depends on the circumstances. Recording an officer from 20 feet away could be different than doing so from two feet away. Yelling at an officer may be okay, but it could also depend on what a person is saying.
Trainings for legal observers led by organizations like the Immigrant Defense Network in Minnesota advise people to stay a safe distance away and avoid any physical contact with immigration officers.
"People want to know exactly where the line is. But I think that's distracting from the fact that the vast majority of cases don't even come close to that line," Kim said.
She says the administration's animosity to people documenting its immigration enforcement activity is clear: "I think that's really rooted in their desire to keep what they're doing as secret as possible."
Seth Stoughton, a law professor at the University of South Carolina, said people film and watch local police all the time, and federal officers are no different in that regard, even if they'd rather not have observers present.
"The question is not, 'Is it annoying or frustrating to the officer?' The question is, 'Is that annoyance or frustration constitutionally protected?'" Stoughton said. "Criticism of government actions are at the very core of what the First Amendment protects."
The Department of Homeland Security did not respond to NPR's request for comment.
'Gross intimidation'
Beyond the initial arrests, the federal government is so far having more of a challenge in prosecuting the cases it has brought against observers during its immigration crackdowns.
In Los Angeles, a federal judge recently rejected the government's argument that protesters who were tracking federal officers during the surge there had met the bar for interfering.
In Chicago, court records show most of the people arrested for impeding during several months of that city's enforcement surge were released without charges. Of those who faced charges like impeding or assaulting officers, many of the cases have been dismissed.
"It shows what will happen in Minneapolis six months from now," says Steve Art, an attorney with the law firm Loevy + Loevy in Chicago. In Minnesota, federal prosecutors have already walked back or dismissed charges in more than a dozen cases.
Art, who represented plaintiffs in a recently dismissed lawsuit that alleged federal agents violated the First Amendment rights of journalists and protesters in Illinois, says even if a charge is dismissed, the notion that the government has deemed you a criminal can be a "terrorizing mechanism."
That fear often begins during the interaction with ICE officers, long before charges are ever filed.
"They're resorting to gross intimidation," said Will Stancil, a civil rights lawyer based in Minneapolis, who has also been told he is impeding investigations while following immigration agents around.
He says immigration officers have taken his photograph, particularly when Gregory Bovino, the Border Patrol officer previously in charge of the operation in Minnesota, was present.
"I would go up to them and give them my name and address, and I'd say, 'What I'm doing is legal. And if you believe it's illegal, come arrest me. And I suspect you will not,'" Stancil says. "It's not just bravado. It's that I think it's important to demonstrate that these are bluffs, that they're trying to frighten us, but they don't actually have the authority to do it."
Stancil has been public about following immigration officers, but he understands why others might feel intimidated. He has had officers lead him back to his own home twice. Once, he was with other people and laughed it off.
"The other one was much scarier because it was me and there were three ICE cars that surrounded me and they led me back to my house," he said. "That was just me alone. And, you know, I was frightened. I didn't know what was going to happen."
Those in-the-moment interactions scare him more than any potential legal repercussions. After all, he says, two people have been killed by federal agents in his city while doing what he has been doing: watching and filming.
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