We have previously discussed the lack of a credible defense for Milwaukee County Judge Hannah Dugan, who has been charged with facilitating the escape of an undocumented man being sought by federal officers in her courthouse. Indeed, despite having high-powered lawyers such as Paul Clement, her recent social media posts seem more like a pitch for jury nullification. One bright spot for Dugan was that she was assigned to U.S. District Judge Lynn Adelman, a liberal Democrat who has run for prior office and has been accused of bias on the bench. However, Judge Adelman just delivered a blow to the defense by rejecting Dugan’s claim that she had judicial immunity in taking her actions.
According to the criminal complaint, a six-person arrest team (including an ICE officer, a Customs and Border Protection officer, two FBI special agents, and two DEA agents) came to the courthouse to arrest Eduardo Flores-Ruiz, a Mexican immigrant facing three misdemeanor battery counts they intended to deport.
He is accused of hitting someone 30 times during a fight that erupted over complaints that his music was too loud and assaulting three separate individuals, the Milwaukee Journal Sentinel reported.
Flores-Ruiz was previously deported and then entered again illegally, a federal felony. He was issued an I-860 Notice and Order of Expedited Removal on January 16, 2013, and Flores-Ruiz was “removed to Mexico through the Nogales, Arizona, port of entry.” Not only is reentry a felony but when there is an order of expedited removal, you can be deported without any further court hearing.
After facilitating his escape, Dugan was later arrested and charged with obstructing or impeding a proceeding (18 U.S.C. 1505) and concealing an individual to prevent his arrest (18 U.S.C. 1071).
Calls for resistance and even replication have also come from colleagues on the bench. Monica Isham, a circuit judge in Sawyer County, not only defended Judge Hannah Dugan in an email to other state judges but added that she “has no intention of allowing anyone to be taken out of my courtroom by [Immigration and Customs Enforcement agents] and sent to a concentration camp.”
Recently, Dugan went public with an interview that notably lacked any discernible defense, other than stating that she helps defendants use the “backdoor” when she considers circumstances that “warrant it.”
Judge Adelman ruled on that:
“Ultimately, as the Supreme Court has stated, ‘the official seeking absolute immunity bears the burden of showing that such immunity is justified for the function in question.’ I cannot say as a matter of law that the defendant’s alleged conduct falls within even this more limited version of immunity…There is no basis for granting immunity simply because some of the allegations in the indictment describe conduct that could be considered ‘part of a judge’s job.’”
The lack of any cognizable claim in Dugan’s public pitch suggests that she might be hoping for a juror to simply vote to acquit as a visceral or political statement. This is a liberal jury pool where jury nullification must be a concern for prosecutors even though such an argument cannot be made overtly by the defense to the jurors.
I disagree with the prevailing opinion against Judge Dugan. She preserved the integrity of her courtroom, and with it, American Federalism.
DHS and the Justice Department engaged in an unethical, perhaps unlawful, conspiracy to punish her for opposing the federal government’s violent round-up of non-citizens. The judge protected the rights of the accused to a fair trial in a state court, for a state matter. Judge Dugan is a national hero.
GStreet – this is not about differences of oppinion.
If you do not like the Trump administration enforcing US immigration laws – vote to change them.
If you beleive they are unconstitutional – take that to the supreme court.
Dugan conduct was lawless.
She was perfectly free to keep ICE/DHS out of her court room while court was in session.
When her hearings were over or recessed – she is no longer acting as a judge, she is acting as a private citizen. And her courtroom becomes just another public space in a public building.
I have no problems with civil disobedience against laws that I beleive are bad or unconstitutional.
But core to civil disobedience is the expectation that you will be arrested tried and convicted.
Civil disobedience works ONLY when the public at large sees the conduct you are being punished for as legitimate and therefore your punishment as martyrdom.
If you do not have that public support – you are just another law breaker.
And even if you do – you should expect to be punished
That said – while our immigration laws are imperfect and I am in favor of broad immigration – both of my children were born in foreign countries and are immigrants and citizens by working of the law.
At the same time our immigration laws are NOT so egregiously evil that I would be willing to go to jail to oppose them.
The flaws in our immigration laws are not enormous and our immigration laws are similarly flawed to myriads of other laws that I think should be different – but do not oppose strongly enough to go to jail.
That is how the rule of law works.
Each of us does NOT get to decide individually what the law should be and which laws should be obey.
We are all obligated to obey the many laws that are not exactly too our liking.
It is not likely there is anyone who likes all of our laws exactly as they are.
Nor is this a federalism issue – immigration is the sole domain of the federal government.
It is not federalism when a democratic judge tries to circumvent federal law,
Just as it is not federalism when states try to create their own immigration laws – whether that is red states creating draconian ones or blue states trying to circumvent federal immigration law.
Nor is Dugan demonstrating integrity.
When she took on the role of Judge she swore to uphold the law and constitution – even if she did not like the provisions of the law or constitution.
“DHS and the Justice Department engaged in an unethical, perhaps unlawful, conspiracy to punish her for opposing the federal government’s violent round-up of non-citizens. ”
What is unethical or unlawful about enforcing immigration laws that have been on our books long before Trump was elected ?
Again if you do not like the law – Change it.
ICE/CBP/DHS/DOJ are enforcing our existing immigration laws.
Something that Biden did not do.
Something that all federal employees swear an oath to do.
There absolutely is a conspiracy here – a conspiracy to enforce US law.
Nor are they rounding up “non-citizens” – they are rounding up people who are here illegally.
As Turley noted – this is NOT the first deportation for Ruis.
Not only is he in the US illegally – but he is inarguably violent.
If Judge Dugan wanted to stand up on some prinicple – a person who was in her courtroom for violently beating up those living with him – is not the place to start.
Who exactly has a problem with deporting people like Ruis – who are here illegally and who are violent criminals ?
What is the principle that is reflected ?
“The judge protected the rights of the accused to a fair trial in a state court, for a state matter. ”
Federal law prempts state law – this is not something new. It is not unique to immigration.
Ruis was accused of agrevated assault – a State crime.
His immigration violations were already adjudicated (multiple times) in federal immigration court.
He was previously deported, and he returned. The only thing that ICE/CBP must prove to immediately deport you it you were already deported, is that you are the person who was previously deported. Ruis can challenge that. That is precisely the Habeuas claim that SCOTUS has not allowed the administration to circumvent. But again – that is in a FEDERAL court, and a habeaus claim where the petitioner is claiming not to be the person on the deportation order usually is resolved without a hearing in immigration court in a few minutes. For people who were deported long ago – we verify identity with fingerprints. For those deported more recently – we verify it with DNA.
These hearings are necescary, and they are quick, and they take place in federal courts.
“Judge Dugan is a national hero.”
No she is an ordinary felon nothing more.
She will likely only get a slap on the wrist – though specifically because she is a judge and swore to uphold the law she should be dealt with more harshly.
No matter what she should lose here position as a judge.
Judges who willfully break the law can not remain judges. It does not matter whether you like the law or not. We can not have a functioning society or country where whether to follow the law is merely opinion.
We are all obligated to follow the law whether we like it or not.
If we do not like the law – we can challenge the law – Judge Dugan is NOT doing that. She is claiming that she did not violate it – or that if she did, she is allowed to because she is a judge.
She is entitled to a presumption of innocence – but what is known publicly will lead to a certain conviction unless a trial proves the publicly alleged facts to be incorrect.
And that is the relevant question.
Not did Judge Dugan do something that for reasons that are hard to comprehend you think is good.
But did she do what DOJ has alleged in their charges, and do those alleged facts meet all the elements of the crimes charged.
Prof. Turley,
I have no problem firth Dugan OVERTLY seeking Jury Nullification.
I have a major problem with the fact that Lawyers can not argue for Jury nullification.
I forget the name – but there is a very famous case of Jury Nullification that occured prior to the revolutionary war.
The purportedly Tyranical Biritish Judges allowed colonists to argue jury nullification – to juries of colonists. But defendents in the US are Barred from mentioning it.
based on the facts we know – Dugan should lose this case, she should be convicted, removed from the bench, and personally the sentence should be severe.
Contra how things normally play out – those who are tasked with upholding the law who break the law- especially in their actions within the justice system should be punished more severely than the rest of us.
More then anyone they KNOW better and should be held to a higher standard.
‘
One of Biden’s egregious Pardons was of a PA Judge who was sentencing minors who often had done nothing to a private camp he was receiving kickbacks from.
But despite the above – I am fine with a politically biased jury acquitting Dugan.
This case is news and no outcome could shock people – VOTERS more than jury nullification.
Not punishing Dugan – who likely will only get a slap on the wrists, is a small price to pay for an electorate that is even angrier at democrats.
As you noted in another article – the democratic party has doubled and tripled down on Crazy.
The more examples we have the less people will trust them, and the more strongly inclined they will be to vote against them.
Generally this is where I part company with you.
I generally am in close agreement with the various offensive conduct that you turn into articles.
Where it is actually necescary for govenrment to act to protect peoples rights – I am for that.
But I am in no rush to make all bad conduct illegal conduct.
If what someone has done is offensive – speak out, do not hire them, do not trust them.
But unless the conduct is clearly criminal – keep government out of it.
Is it illegal to interfere or obstruct the Border Patrol or ICE from performing the lawful detainment and arrest of an illegal immigrant? Is it lawful for a member of the bench to break the federal law?
She’s done and good riddance of another activist judge. I hope it’s as painful as possible for her, financially and emotionally in the thoughts of the pain and suffering of the American families subjected to illegal immigrant criminal acts have endured.
Madman – I was NOT defending Judge Dugan’s conduct.
As I said – I would throw the book at her and the sentence would be harsh.
Not because of minor interferance with ICE – but because she is a judge who swore to follow the law and constitution – even when she did not like it.
My defense was of Jury nullification and those who advocate for it and those who do it.
Asking a jury to nullify MUST be legal. Doing so openly in court MUST be allowed – even our british tyrants allowed colonists to do that.
In the case of Dugan asking for Jury nullification is immoral and unethical.
But it should not be illegal A jury choising to nullify whould also be immoral and unethical – but not illegal.
There should be consequences if Dugan benefits from Jury nullification – but not LEGAL consequences.
Unethical and immoral (but legal) conduct by politicans and their minons should be punished at the ballot box.
I am all for people showing us who they really are so that we know who to vote against.
Madman – let my try to explain differently.
I think it is evident that without the lawfare against Trump – he Trump likely would not have been elected.
An outrageous result in the Dugan case will likely benefit republicans.
Trump has a knack for getting Democrats to rush headlong into fights that the lose even if they win. This is one of those.