Last month, Bernalillo County District Attorney Sam Bregman, who is also running for governor, sent a letter to federal immigration authorities threatening to prosecute Immigration and Customs Enforcement agents who detain people without legal cause. Jeff Proctor, executive producer of New Mexico in Focus, sat down with former U.S. Attorney Alex Uballez to ask if a local DA can actually carry through on these threats. You can see the full interview here.
ALEX UBALLEZ: Laws are words that we have come together and agreed that are the rules by which we should abide, but they only exist so far as we believe in them. And so this is really important when we're thinking about the laws that the district attorney is talking about here. We're looking at false imprisonment, which is the specific one outlined in the letter, and how it would be used against folks who violate the law. In the district attorney's terms, a federal agent who makes an arrest without probable cause, reasonable suspicion or a warrant might be subject to local state laws. And that's true, everybody is subject to the rule of law. How they apply and whether they can be applied are separate questions.
We're talking about state law, federal law. And we've heard, of course, the terms of federal supremacy, and I think that that term doesn't quite carry as much water as many people believe it does.
NMPBS: How not?
UBALLEZ: The idea that if a federal agent is doing their job, the state shouldn't interfere in that. That means that the actions they're taking are necessary and proper in advancing whatever the federal interest or the federal law that they are pursuing. If they are not doing something that's necessary and proper to advance a federal law, then that supremacy doesn't protect them from state criminal prosecution.
NMPBS: I want to go back to those three standards that you just mentioned, judicial warrant. Next, you've got probable cause, and last, you've got reasonable suspicion. I want to hone in on that for just a moment. How do you think about reasonable suspicion in terms of the possibility of charging a federal agent for false imprisonment? What's that standard?
UBALLEZ: Yeah, and so we're looking at a broad range of activity, if you're looking at, for example, at Minneapolis or in Los Angeles, of things that federal agents are doing that the district attorney might consider as a component or target of this letter. That is everything from making an arrest of somebody who is committing a crime, making an arrest of somebody who is not legally in this country and subject to removal or detaining somebody for any less reason, that's usually where reasonable suspicion comes in, right? So that's the Terry stop. It's where an officer has to hold somebody temporarily seize them, right, in violation of Fourth Amendment, but with justification that being the reasonableness right? The Supreme Court's recently advised us that ICE agents when you're carrying out immigration enforcement have quite, and I would say, disturbingly, low bar to prove there, such as your skin color, the language you speak and the job that you have might be enough to establish reasonable suspicion for a stop. And so if we're looking at where the justification an officer would give for his actions if charged with false imprisonments, you sort of got to look at the lowest barrier, and see what would qualify what would not. With this ruling from the Supreme Court, it's going to be very difficult to assert that an agent didn't have at least that basic reason to go talk to someone and seize them temporarily.
NMPBS: I'm going to read a quote from an op ed written by a former Assistant US Attorney and ask for your reaction. He writes, “Bregman has chosen political theater over public safety. His recent threat to prosecute federal agents for enforcing federal law is legally wrong and reckless. It misleads the public, encourages confrontation with law enforcement and promotes a false narrative that could get someone seriously injured or killed.” What do you make of that framing?
UBALLEZ: Sure, I mean, a lot of feelings about it. The first really circles back to where we began, with the trust of the public. This Republic, this democracy, this country, is built on the trust of the people, and that trust has to be earned. And so when I'm thinking about these words from my former colleague, Reeve Swanson, I'm thinking about a world that may have existed in the past where there was trust earned by the federal government, by law enforcement, who showed, like in Border Patrol's case, that they would conduct an internal investigation and they would turn over the evidence to, you know, federal prosecutors, and that we would then charge this person who rammed the person's head into the wall. This trust has been broken over the past year by this administration, by the actions that we witness every single day in Minneapolis. And so when the trust is broken, it's tough for a government to ask a people to order people to just comply when they have not earned that trust, when we see day to day actions in Minneapolis against people who are not even involved, who are standing on the sidewalks, actions like spraying them with pepper spray or pointing guns at them or slamming them into the ground, actions that here in New Mexico, we have charged federally as deprivation of rights and convicted federal agents for and so this is a different world. Convicting federal agents for depriving people of rights is important to establishing that trust in the system, and when the people don't see that happening, it’s important for our leaders to stand up and say, “No, the law applies to everybody.”