Below is my column in The Messenger on the call of Gov. Gavin Newsom (D., Cal.) for kidnapping charges against Gov. Ron DeSantis (R., Fla.) for shipping undocumented migrants to California. It is a curious call for a governor to make after he ran ads in Florida calling on people to “join us in California.”
Here is the column:
“Kidnapping charges?” That hopeful tweet from Gov. Gavin Newsom (D-Calif.) came across as the ultimate example of California dreaming, as Newsom and a chorus of politicians and pundits called for Gov. Ron DeSantis (R-Fla.) to be charged criminally for transporting 36 people to Sacramento. California Attorney General Rob Bonta (D) chimed in, declaring the flight from Florida might be “State-sanctioned kidnapping.”
Newsom added in the tweet: “You small, pathetic man. This isn’t Martha’s Vineyard.”
The problem, however, is that this is just like the transport of migrants to Martha’s Vineyard in September 2022, which a number of Democratic leaders and legal experts insisted was also a clear case of kidnapping and human trafficking.
Newsom previously asked the U.S. Justice Department to investigate whether the flights are violations of the federal Racketeer Influenced and Corrupt Organizations (RICO) Act — a ridiculous legal suggestion. To great acclaim, Rachael Rollins, then the U.S. Attorney for the District of Massachusetts, announced that she was taking a look, “long and hard,” at potential charges.
Newsom cited the kidnapping statute but apparently failed to read it or the underlying cases. While there is a fair debate over the policy of relocation by states like Texas and Florida, the effort to use the criminal process as part of that political debate is … well, pathetic.
First, let’s look at the law. The California provision states that kidnapping involves someone who “abducts or takes by force or fraud any person contrary to the law of the place where that act is committed, and brings, sends, or conveys that person within the limits of this state.”
There is nothing unlawful about conveying individuals who are lawfully in the country pending their immigration hearings. Indeed, public interest groups and the federal government do so regularly, including late-night flights to various cities. Many migrants are released soon after capture, including some without a hearing date or court dates that are years in the future. They are then left to their own devices and destinations.
Moreover, it is not clear how transporting migrants who entered the country illegally to another state is a violation of law. If so, there would be a host of local Democratic and federal officials who could be charged on that basis. New York City recently sent migrants to other cities without their permission or prior notice; Democratic leaders in El Paso, Texas, have also arranged such transports.
None of these were denounced as state-sanctioned kidnapping — because they weren’t.
To drive home the point, Florida released a video showing migrants dancing to music on a bus, signing waivers, and smiling as they posed for photos on a plane.
Florida Division of Emergency Management (FDEM) communications director Alecia Collins has publicly declared that each of these migrants gave “verbal and written consent … to go to California.”
California officials insisted that the consent must have been fraudulent, which seems a strange argument that the state itself is not an inducement.
There are good reasons why migrants might want to go to California, beyond just its beautiful weather and lifestyle. Newsom and other leaders have passed some of the nation’s most generous benefits for undocumented persons. In 2017, California declared itself a “sanctuary state” for undocumented migrants; Sacramento declared itself a “sanctuary city.” This all was enormously popular — until migrants actually began to appear in large numbers.
Obviously, if it can be shown that migrants were, say, promised a time-share in Malibu or other specific inducements by Florida officials, there might be viable claims of fraud. However, pitching the opportunities and protections of California as a sanctuary state is found on the state’s own websites. And Newsom has paid money for ads in both Texas and Florida, asking everyone living there to come “join us in California.”
Much of the media is reporting the pledge for a criminal investigation without noting the same allegations were made in the Martha’s Vineyard case and the glaring absence of criminal charges over that previous transport. While civil litigation is ongoing, the supposedly clear criminal charges have not been brought by Democratic prosecutors clearly motivated to do so. The reason is that these claims are made for cable news, not courts of law.
The sheriff in Bexar County, Texas, has reportedly submitted the results of an investigation to local prosecutors after the Martha’s Vineyard transport last year. It reportedly includes claims of felony and misdemeanor charges of unlawful restraint, but didn’t name individual suspects. Local prosecutors may yield to temptation in moving a case forward, but they are unlikely to get very far absent some new evidence that migrants were sent to Cape Cod or California against their will.
Newsom, Bonta and other politicians are suggesting that migrants could come to California on their own but that it is a crime to transport them at state expense. So, when public interest and migrant-assistance groups raise money to transport migrants, are they also kidnappers?
Bonta appears ready to dismiss the verbal and written waivers of these migrants as meaningless because, he says, “it was false. You can’t consent based on deception.”
Yet, given California’s ample package of benefits for undocumented migrants — ranging from free college to driver’s licenses, cash assistance and food stamps — it was no deception for Florida to highlight the Golden State’s status as a sanctuary state. It also is why it is perfectly rationale for migrants to want to go to the state.
Unless information to the contrary arises, these adults made the decision to enter the United States, and they can choose to go to any U.S. state once they are released by the federal government. That may be the meaning of opportunity to some, or the definition of insanity to others — but it is no kidnapping.
Jonathan Turley, an attorney, constitutional law scholar and legal analyst, is the Shapiro Chair for Public Interest Law at The George Washington University Law School.