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When an ICE agent shot and killed Minneapolis resident Renee Good after she allegedly obstructed immigration authorities with her vehicle, disobeyed their commands, and attempted to flee – drawing fatal fire from an officer nearly struck by the vehicle – politicians and pundits decried her death as murder. They called it particularly unjust because she was not acting as a protester but a legal observer.

After federal agents arrested Don Lemon for allegedly disrupting a St. Paul church service in protest of the same Twin Cities immigration enforcement surge Good had opposed. His lawyer defended the former CNN anchor as a journalist, persecuted by the Trump administration for having carried out “constitutionally protected work” in violation of his First Amendment rights.  So too did myriad media organizations ranging from the National Association of Black Journalists to the Committee to Protect Journalists.

While Good’s shooting presents a distinct issue, her case and Lemon’s highlight the complex legal issues surrounding those who claim to be chronicling protests. Legal observers and journalists have long worked on the frontlines of civil unrest, the former documenting instances of alleged police misconduct in violation of constitutional rights to peaceably assemble, and the latter chronicling the assemblies. Their efforts have brought transparency and accountability. But what happens when legal observers and journalists act, or are seen by authorities as unlawful protestors rather than the neutral parties they are supposed to be? To what degree do their titles afford them special protections from prosecution in a court of law?

These questions have been brought into sharp relief as the Trump administration has brought hundreds of cases against people whom it alleges have not merely monitored but participated in illegal actions impacting immigration enforcement operations. 

“We respect the First Amendment and the right to peacefully protest,” a DOJ spokesperson told RealClearInvestigations, but “journalists and observers are not provided special protections to obstruct law enforcement operations.”

Northwestern University Law Professor Steven Lubet, who has criticized the Trump administration’s approach to immigration, concurred that legal observers “have no special legal status,” nor do journalists have “license to engage in violence or disruption.” But, he added, “law enforcement authorities should have a heavy burden to show that a journalist…or legal observer…had overstepped their role.”

Although it did not respond to a request for comment, the American Civil Liberties Union has litigated against federal law enforcement authorities in connection with ICE’s activities in Minnesota. It argues that the government is violating the “constitutional rights” of people “observing, documenting, and protesting ICE activity in their neighborhoods.”

Like so many issues, the very nature of protest and the definitions of legal observers and journalists have come into question during the Trump years. America has a long history of protest, but the anti-ICE protests are different. Typically, protestors have engaged in somewhat organized demonstrations, with law enforcement responding if there is violence or property damage. But residents of Minneapolis, Los Angeles, and other sanctuary jurisdictions to which the second Trump administration has surged ICE agents have turned this dynamic on its head by arriving at the scene in response to law enforcement actions, and sometimes challenging such efforts.

It is hard to distinguish protestor from legal observer as many self-described ICE-watchers pursue officers in their cars and approach them during encounters – often times with phone in hand to record the events, and, they claim, to deter misconduct. Alex Pretti, an armed man who was killed by border patrol agents in Minneapolis after appearing to come to the assistance of another protestor, had been filming the scene before his deadly encounter. While he was widely described as a legal observer, just a few days prior, he had kicked in the taillight of an ICE vehicle, raising the murky issue of whether one can toggle back and forth between protester and observer depending on the circumstances.

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