How ICE is being kicked out of Massachusetts

A month ago, in response to a lawsuit with my name on it, the Sheriff of Plymouth County announced that he’d stop working with ICE. I’m thrilled to be a very small part of it. Here’s the story:

Oren Nimni and I had gone to college together. Back then, I knew him as a thoughtful, quirky guy and committed campus anarchist. Years later, we both were cofounders (with Nathan, and others) of Current Affairs magazine. Some time after that, I saw his distinctive face grabbing getting back in touch after running into each other in a Somerville supermarket. We got back in touch.

When he wasn’t adjunct professoring, legal editing, or podcasting, Oren’s day job was with Lawyers for Civil Rights. He had a novel legal idea, and laid it out to me. I’m going by memory, but it went something like this:

  1. Some sheriffs were cooperating with ICE in specific ways, via these 287(g) contracts
  2. This was unconstitutional, because they didn’t have the authority to do so.
  3. But who could challenge it? Normally, you’d have to hope an attorney general, district attorney, etc would take it on.
  4. Luckily, Massachusetts specifically has a law that taxpayers could challenge any *spending* by executives, if certain conditions were met.
  5. The 287(g) agreements were spending.
  6. The conditions were pretty straightforward. You needed 24 taxpayers, no more than 6 per county, to file the suit.

Here’s the relevant statute in full:

If a department, commission, board, officer, employee or agent of the commonwealth is about to expend money or incur obligations purporting to bind the commonwealth for any purpose or object or in any manner other than that for and in which such department, commission, board, officer, employee or agent has the legal and constitutional right and power to expend money or incur obligations, the supreme judicial or superior court may, upon the petition of not less than 24 taxable inhabitants of the commonwealth, not more than 6 of whom shall be from any 1 county, determine the same in equity, and may, before the final determination of the cause, restrain the unlawful exercise or abuse of such right and power.

Massachusetts General Law, Part I, TitleIII, Chapter29, Section63

Oren was ready to file the case. But he needed some of those taxpayers to actually file the petition. That’s where I came in.

I was one of those 24 taxpayers filing suit, and got some more friends to sign on. With our names as plaintiffs, they filed the suit: Cofield et al v. McDonald et al. Every once in a while, a lawyer from Lawyers for Civil Rights would email us an update on how the case was going.

In July, the court ruled that our challenge could proceed.

In September, we won! The agreement was unconstitutional, and soon after the sheriff announced that they’d stop the agreement with ICE.

Last time I checked, only Barnstable County is left — and they’ve been hit with a copycat lawsuit.

We’re going to win this. Thank you Oren, and thank you Lawyers for Civil Rights.

As for Oren — recently, he moved to DC to become Litigation Director for Rights Behind Bars. He’s filing cases fighting for better prison conditions, and attacking qualified immunity. What a guy.

You can see my name right here in the list of plaintiffs on page 12 of the official petition to the court. And is that THE Morton Horwitz there with me? Honestly I am not sure but imagine if it was.


The system lacks legitimacy

Some thoughts rattling around in my little brain:

We face a crisis of elite impunity in this country. This isn’t new. Chris Hayes laid it out unsparingly in his excellent 2012 book, Twilight of the Elites. (Don’t want to read the whole thing? Freddie DeBoer had an excellent essay and critique that is arguably better than the book he was reviewing)

We face a crisis of elite impunity inside big companies. Even tech companies. Andy Rubin. Joel Kaplan. Golden parachutes.

Even in the last few months, we saw how corporations can fleece their customers during good times (they’re a monopoloy, what are you going to do), and then get bailouts in bad times. And don’t get me started on the lies that corporations tell to get mergers approved, or “economic development” funding or tax credits, or the post-2008 wave of legal immunity for fraud. Again, just read Twilight of the Elites.

We also face a crisis of impunity for our elites even in new, supposedly fair places, like social media.

These are related.

A cable news host’s facebook page will get better treatment than a normal person would. If their traffic goes down, they will complain to someone who will try to find out why, and fix it. If, say, the President lies on the platform, the platform will shy away from enforcing its own rules.

Epstein was a great encapsulation of elite impunity. He had so many accomplices! So many powerful friends. So many connections. And now — no followup.

Trump is a great symptom of this epidemic of white-collar lawnessness. In a world that prosecuted him for mob connections in the 80’s and 90’s, he would not be president.

Cops have also had impunity for a long time. Lately, they’re ratcheting up that impunity. Shooting journalists on live television is relatively new and a dangerous escalation. If they get away with it, we are one step closer to the police state.

Protests are happening because, in part, the lack of accountability for anyone in power who does things that are wrong.

Even the Iraq war cheerleaders are still literally the same people in the media, and those who dissented were fired.

All this was predicted.

I’m old enough to remember blogs, and civil liberties groups yelling about:

  • Sending military surplus gear to police departments.
  • Militarization of police post Miami
  • LRAD cannons being bought years ago
  • Surveillance of activists
  • Qualified immunity for police brutality
  • “Occupation corrupts, and the tactics used in Iraq will come home to us”
  • Even during Occupy, we said: “If they do this brutality to us, they’ll do it to you”.

It’s important to acknowledge that it was predicted. Predicted by leftists specifically, and also the free-internet, Edward-Snowden-is-good, crowd. Too often, the online civil liberties people and the left don’t see themselves on the same side.

This isn’t the first time that police in america have killed people on camera, beaten up bystanders, attacked the press. This isn’t the first time that they’ve attacked a peaceful march, unprovoked, and then blamed the violence they themselves instigated on “rioters”.

I want to be very clear about that. The model is now: people nonviolently march. Police march in and attack them. All is confusion and teargas. The news covers it as “protests get violent”. This was true before 2020. Luckily, it seems like more people are realizing it.

It is so important not to shame people for figuring it out now, rather than earlier. Convincing people is the main strategic goal of most political activity.

But convincing doesn’t happen without work. My twitter feed is full of videos of cops doing horrible things to unarmed, nonviolent people. The biggest Facebook pages are pushing out stories about evil looters and rioters. Even as television news hosts are being arrested or *literally shot at* on live TV, the dominant narrative is about riots, clashes, and violence. This is a great example of how the ownership of the mass media (corporate, conservative) matters much more than the views of labor (people who were just attacked by police) in how they slant coverage.

We’ve seen a ratcheting up of police terror. We’re seeing a ratcheting up of propaganda by the republican party. Now US Senators are calling for the military to shoot american citizens for the crime of believing in anarchism. Being “anti-fascist” is now … terrorism? It’s all bluster, and legally unenforceable. Until, of course, it isn’t.

The Erdoganization of the US continues. We should be excited that people are still willing to brave the streets, even though it means facing death by coronavirus and death by cop.