A federal agent shot a pastor in the face with a chemical weapon. What can California do about it?

Rev. Jorge Bautista confirmed as much as Dennison Street in East Oakland early within the morning of Oct. 23 with different clergy to protest the Trump administration’s deliberate legislation enforcement “surge” within the Bay Space. He stood within the street with dozens of others as a part of a Sanctuary Religion Vigil as roughly 10 vehicles carrying Customs and Border Safety brokers sped to the doorway of the lone bridge that ties Oakland to Coast Guard Island. The brokers can be supported by the Coast Guard base for the operation, a spokesperson confirmed, and Oaklanders braced for the form of controversial crackdowns which have upset Chicago and Los Angeles.

Based on three eyewitnesses who spoke to The Oaklandside and images from three photographers who have been on the scene, just a few CBP brokers bought out of their autos once they bought stalled by the group. Different autos made it onto the bridge, the place some CBP brokers bought out and returned to the cluster of protesters, who have been all gathered on the town aspect of the blue line marking the sting of federal property. 

One of many brokers, sporting a camo helmet with a chin guard hiding a lot of his face and a ballistic vest with a CBP badge and “POLICE” emblazoned on the entrance, locked eyes with Bautista and stepped towards him, crossing the blue line and exiting federal land. The agent raised a big weapon, one which shoots “much less deadly” projectiles, leveling it on the reverend’s head.

Bautista didn’t assume something would occur. The brokers had simply lobbed some stun grenades towards the protesters, lots of whom shortly retreated, however Bautista and others stayed in place. He hoped to mediate, not believing they might fireplace something immediately at folks’s our bodies, he stated. “We’re right here in peace,” he recollects saying to the agent.

Then “growth!” The agent, standing roughly 5 ft away, shot a cloud of noxious chemical compounds proper into Bautista’s face. The poisonous vapors quickly enveloped him. The caustic powder entered his mouth and coated his face and coat. He couldn’t breathe. One witness, Jerome Parmer, stated Bautista’s face was lined with white mud and was bleeding from his chin.

The taking pictures, which was recorded on video and in photographs and witnessed by dozens of bystanders, raises lots of the identical questions that communities in different cities subjected to unpopular federal legislation enforcement operations have been grappling with. Related assaults on clergy turned the topic of a brief restraining order in Chicago earlier this month, when a federal decide barred agents from using violence or riot control weapons towards journalists, protesters, or spiritual practitioners except they posed an instantaneous menace to the agent.

Was the federal agent’s use of power in the course of the Oakland protest justified? Or was it against the law — an unprovoked assault?

If it have been against the law dedicated on metropolis or state property, inside Oakland metropolis limits, who had jurisdiction to carry the agent accountable?

Trump administration officers have repeatedly dismissed such considerations, claiming brokers’ use of power throughout operations in Democrat-led cities has been “exemplary” and essential to guard federal officers and the general public.

In response to questions from The Oaklandside concerning the taking pictures, a Division of Homeland Safety spokesperson despatched an announcement claiming that the protesters “swarmed, attacked, and refused to maneuver out of the way in which” of CBP autos and tried to impede legislation enforcement. The spokesperson stated the brokers “offered ample discover to those people to clear the road and used applicable power to clear the realm for the protection of legislation enforcement.”

The company didn’t reply to queries about whether or not the agent who shot Bautista was following CBP protocol or whether or not the company was investigating the incident. A CBP use of force policy issued in 2021 states that brokers “shall not deliberately goal the top, neck, groin, backbone, or feminine breast” with less-lethal chemical munitions, which is what seems to have been used towards Bautista.

Democratic Celebration elected officers against the militarized operations have repeatedly expressed considerations about federal brokers’ use of power. Some have gone as far as to say federal brokers who brutalize folks ought to face penalties, together with felony prosecution.

The day earlier than protesters in Oakland, together with Bautista, confronted CBP brokers on the entrance to Coast Guard Island, Rep. Nancy Pelosi, of San Francisco, issued a statement warning that California legislation enforcement companies might step in to guard the general public towards federal officers.

“Our state and native authorities might arrest federal brokers in the event that they break California legislation — and if they’re convicted, the President can’t pardon them,” Pelosi stated.

The identical day, San Francisco District Lawyer Brooke Jenkins instructed the media she would prosecute federal brokers who break the legislation. “If the brokers cross the bounds of the legislation, in the event that they do issues that we consider are felony themselves, then I’ve an obligation because the district legal professional to make sure that they’re held accountable, too,” she told the San Francisco Chronicle.

The following day, U.S. Deputy Lawyer Normal Todd Blanche fired off a letter to Pelosi, Gov. Gavin Newsom, and others, warning that the arrest of federal brokers can be “unlawful and futile.”

Authorized consultants say it’s true that states face obstacles to prosecuting federal brokers for crimes perpetrated within the line of obligation. Nevertheless, federal brokers shouldn’t have absolute immunity. Though uncommon, they will and have been arrested and charged for violations of state legislation, stated Michael Mannheimer, a professor at Northern Kentucky College and constitutional law scholar. 

Whether or not California’s police and prosecutors have the political abdomen to take action — and choose a battle with the Trump administration — is a complete different query.

“We’re going to harm you, and we don’t care”

Final week wasn’t the primary time Bautista discovered himself subjected to forceful therapy by a CBP agent.

In 2019, Bautista, who lives in Oakland, was on the U.S.-Mexico border in Southern California, protesting its elevated militarization. As he and different protesters locked arms and walked to the seashore, the pastor instructed us he was the primary individual brokers focused in an intense assault. He stated brokers took him out of the road, restrained him on the bottom, and put their knees on his neck. He was taken right into a van on U.S. soil, the place brokers took photographs of him with out clarification. He was returned to the border an hour later with extreme bruises.

The U.S. authorities charged him with a petty offense, violating guidelines of conduct on federal property. The case finally went to trial, and he was acquitted. 

The pastor didn’t take part in protests for years after that. However he stated what he noticed occurring in Palestine during the last two years, after which with the mass deportation decrees underneath the Trump administration this yr, pulled him out of the church and again onto the streets for protests.

When the CBP brokers confirmed up of their autos final Thursday, Bautista stated they got here in “scorching,” revving their engines and braking abruptly in entrance of the protesters. The brokers all poured out across the identical time, “screaming and making threats.”

Bautista stood his floor however stayed safely in entrance of the blue line, respecting the federal property boundary. As a result of the brokers have been shifting round quick, he wished to ensure they knew the protesters weren’t making an attempt to elicit a violent response. 

“The concept was to do a vigil, not civil disobedience, not blocking the street,” Bautista stated.

However the state of affairs bought tense, and the CBP brokers shouted on the protesters to maneuver out of the way in which or they might run them over with their autos. Some reacted angrily, particularly as a result of they stated they weren’t in the way in which and since there have been youngsters within the crowd. 

“‘We’re going to harm you, and we don’t care,’ was the sensation coming” from the brokers, Bautista stated.

Bautista raised his voice to be heard. He stated he wished them to know he was not afraid.

That’s when the agent shot him with the chemical irritant, and he went into shock. At first, the ache was so harsh that he thought his jaw was damaged from successful by the stun grenade.  

“Trying again, I believe to myself — I’ve been in a wide range of protests — and ask myself, ‘Why did I belief him?’” Bautista stated. “Was I silly sufficient to offer him the advantage of the doubt?”

Pals gave him water and Mylanta to clear the powder from his throat. He tried to take heed to his physique and never panic, as his coronary heart raced. His first intuition was to get again up and keep on the vigil, however different protesters urged him to go to the hospital. The chemical irritant was coating his physique so densely that it was making different folks sick. 

Bautista stated he might see no purpose why he was shot. He doesn’t consider the officer adopted coverage or the legislation. The officer who shot him didn’t converse to him earlier than he opened fireplace, didn’t determine himself, didn’t present a verbal warning that he may use power, and didn’t present medical consideration after the incident. No CBP or Coast Guard officers tried to assist him.

“Regardless of who you’re, you shouldn’t be assaulted that approach for any purpose,” he stated.

Since Bautista was shot, the pictures and video of the incident have spread on the web. He’s gotten calls from press around the globe. And domestically, some neighborhood members have questioned whether or not Bautista was the sufferer of an assault — one with none authorized justification.

Can state and native police and prosecutors cost a federal agent with against the law?

If native authorities have been going to research the CBP agent’s taking pictures of Bautista, the case would in all probability fall to the Oakland Police Division.

The taking pictures, based on movies and photographs of the incident, occurred in a public Oakland intersection, a number of steps away from the blue line on the street that demarcates the place federal authorities property begins on the entrance to Coast Guard Island Bridge.

Requested whether or not OPD is investigating the taking pictures, the division stated it “has no authority to oppose or stop federal investigations” and referred additional inquiries to DHS.

After the taking pictures, Bautista was rushed to Kaiser Permanente’s Oakland Medical Middle, the place he was greeted by emergency room employees who handled him “amazingly,” he stated. They made him bathe to do away with the pepper spray, checked his vitals, and requested about his psychological well being. A health care provider instructed him he was fortunate he hadn’t ingested extra of the pepper agent, which might have critically choked him; if extra had gone into his eyes, the physician stated, it might have affected his eyesight.

Bautista stated he appreciated the solidarity he felt from the medical employees, who have been outraged to study what had occurred. A nurse knowledgeable him that he had a proper to report the incident to police. She took down his model of occasions, instructed him that she referred to as legislation enforcement, and stated to count on a go to from the police at his house later that night.

OPD declined to substantiate with us whether or not or not the division had taken a report.

Ought to OPD or one other legislation enforcement company examine the incident and suggest felony costs, the choice of whether or not to prosecute would almost definitely relaxation with the Alameda County District Lawyer’s Workplace.

Final Thursday, DA Ursula Jones Dickson stood with Oakland Mayor Barbara Lee, Rep. Lateefah Simon, and different leaders at a press convention the place they voiced opposition to a federal operation in Oakland. The DA issued an announcement the next day reaffirming that her workplace won’t work with federal brokers to implement immigration legal guidelines, and cautioning that her workplace “can’t thwart lawful actions by the federal authorities.”

The DA’s workplace declined to offer an on-the-record assertion on the hypothetical query of whether or not it could prosecute the federal agent who shot Bautista if offered with a case from OPD or one other investigating company.

Requested concerning the legislation, the DA’s workplace pointed to a authorized precedent referred to as the supremacy clause, which constrains when state prosecutors can cost federal brokers. Nevertheless, the workplace declined to weigh in on the file with its interpretation of the supremacy clause.

Former Alameda County DA Pamela Worth, who was recalled final November, instructed The Oaklandside she believes there’s room for native legislation enforcement and state prosecutors to go after federal brokers for clear and apparent violations.

“An assault by a federal agent is illegitimate,” Worth stated when requested about Bautista’s taking pictures. “It’s unconstitutional, and it must be addressed by native legislation enforcement authorities, together with the district legal professional.”

Worth stated she believes OPD ought to examine the taking pictures as a felony assault — and the DA ought to take into account charging the agent.

“There’s an obligation on behalf of native legislation enforcement and the district legal professional to guard the residents of Alameda County,” Worth stated. “That’s the job.”

State Lawyer Normal Rob Bonta’s workplace might additionally take into account costs within the taking pictures incident.

Bonta has strongly criticized Trump’s deployment of the Nationwide Guard to cities. Calling these deployments unlawful, Bonta pledged last week to sue the administration if troops have been deployed to San Francisco. Bonta has additionally opposed ICE agents’ use of masks to cover their identities, and he’s joined lawsuits opposing a few of ICE and CBP’s ways during immigration raids in Southern California earlier this yr, together with stopping folks with out cheap suspicion of against the law. However this pushback has taken the type of civil lawsuits — not felony prosecutions.

The Oaklandside emailed and referred to as the AG’s workplace a number of occasions, asking if the workplace was conducting an investigation into the usage of power by CBP in Oakland final week, together with the taking pictures of Bautista. We’ve got not but heard again.

Avoiding a “pissing match” between the feds and the state

Whereas legislation enforcement officers take pleasure in substantial authorized protections for his or her conduct whereas on obligation, Erwin Chemerinsky, the dean of the UC Berkeley College of Regulation and a constitutional legislation knowledgeable, instructed The Oaklandside that federal officers will be criminally prosecuted for unreasonable conduct that violates the legislation.

Chemerinsky pointed to Idaho v. Horiuchi, a 2001 case during which Idaho tried to prosecute federal officers after a standoff at Ruby Ridge turned violent and three folks have been killed. The U.S. Court docket of Appeals for the ninth Circuit refused to dismiss Idaho’s prosecution of the federal officers, saying that federal brokers’ immunity from state prosecution has limits.

“When an agent acts in an objectively unreasonable method, these limits are exceeded, and a state might deliver a felony prosecution,” the ninth Circuit wrote in its opinion.

“I consider that courts ought to conclude that there is no such thing as a cheap want for ICE brokers to be sporting masks and by no means a necessity for extreme power,” Chemerinsky stated. “Being a federal officer will not be a ‘get out of jail free’ card that excuses all wrongdoing dedicated whereas on the job.”

Michael Mannheimer, the regents professor of legislation at Northern Kentucky College, additionally stated state police have the lawful potential to research federal brokers who might have damaged the legislation, and state prosecutors can cost federal brokers.

When these types of circumstances have come earlier than courts prior to now, Mannheimer stated, judges have drilled down on two questions. First, was the federal agent appearing underneath the scope of their federal job? And second, did the federal agent consider their actions have been applicable and cheap?

If the reply to each questions is sure, then judges will dismiss the case. But when an agent’s actions weren’t applicable and cheap, even when they have been in uniform and on the job, they will nonetheless be charged with against the law, he defined.

It’s uncommon, nonetheless, for state prosecutors to do that. “When it does occur, it’s sometimes the place you might have one thing like the current second, the place you might have an unpopular federal coverage on the state and native stage,” he stated. “Prohibition, for instance, or the standoff at Ruby Ridge.”

Mannheimer stated state legislation enforcement and prosecutors might hesitate to weigh in on explicit circumstances for political causes.

“Let’s give the Alameda County DA the advantage of the doubt that they perceive the legislation higher than they’ve addressed it,” he stated. “They in all probability don’t wish to become involved on this pissing match between the feds and state.”

A possible lawsuit

Bautista spent three days at house recuperating from the assault. By Sunday, he felt nicely sufficient to return to his San Mateo congregation and preach.

“You realize, I’m nonetheless within the ring, with a variety of hope,” he stated. “ I’ve been dreaming that this can be a time for us to do no matter it takes to cease criminalizing migrants, to see the larger image — that the criminalization of migrants is among the worst violations of human rights wherever.”

Pastor Bautista took a protracted path to the church. Greater than 25 years in the past, he stated, he was a teen who ran with the flawed crowd. 

Rising up in a gang-laden space of San Jose, a baby of a Mexican immigrant, Bautista bought into hassle, went to jail, and, on essentially the most crucial day of his life, had a gun pointed at his head. He remembers being in his room afterward, crying, asking for God’s assist for the primary time — asking God to let him dwell so he might discover a totally different path. Quickly after, a buddy took him to a community center that helped him develop a extra optimistic outlook on life after which to an evangelical church the place, in October 1998, he was referred to as to serve. 

“ I used to be sick and bored with being sick and drained,” he stated. “I wished my life circled. I bought uninterested in being harassed by cops and being arrested, and seeing my mother be depressing. I keep in mind her visiting me as soon as in jail and saying, ‘You realize, I didn’t migrate so that you can be incarcerated.’”

It took him years, together with ministry stints in Chicago and South Korea after which a seminary diploma in Berkeley, however he finally turned the kind of mentor he by no means had rising up. He turned a pastor at an Evangelical church, typically ministering to folks in native prisons, the place he sought to supply them non secular steering to assist them endure and, finally, be let out. However he disagreed with what he thought was the denomination’s indifferent stance towards social justice advocacy. 

“My mother labored in asparagus fields in Stockton as a farmworker, she was a janitor, and finally labored in a wide range of firms’ meeting traces,” he stated. “I began studying concerning the works of the German Lutheran Dietrich Bonhoeffer, who fought towards the Nazis. I discovered that as a Christian, we’re to be concerned in social justice work.” 

Bautista famous that within the Bible story of the delivery of Jesus Christ, the Christian household migrated from Bethlehem to Egypt as refugees, for security, when an angel warned Joseph, Jesus’ father, that King Herod would search to seek out and kill his son.

So Bautista turned a spiritual chief on the United Church of Christ, an egalitarian Protestant denomination aligned together with his beliefs concerning the divinity and human rights of all folks. When rhetoric in the US round undocumented immigrants ratcheted up a couple of decade in the past, Bautista might be discovered preaching from the pulpit concerning the injustices they confronted. 

Bautista stated he’s happy with the position many spiritual leaders are taking part in within the battle towards the Trump administration’s abuses. A number of have already served as frontline peace messengers throughout protests — and a few have ended up assaulted like him.

“I observe what Pope Leo is doing as a result of most migrants coming from Latin America are Catholics,” he stated. “As somebody who identifies themselves as ecumenical, we’re about standing on the aspect of affection of Christians at the beginning. However no matter their college of thought — like Jesuits tending to be extra energetic within the spirit of activism than Franciscans — all of us want one another. We’re all in settlement about migrant justice.”

Since arriving house from the hospital, as he waits to inform his aspect of the story to the police, Bautista stated he has begun to think about submitting a civil rights lawsuit. As of right this moment, Bautista nonetheless hasn’t heard from OPD or some other legislation enforcement company about what occurred to him.