Federal judge holds government in civil contempt for not imaging immigration agents’ personal phones

A federal judge in California held the Trump administration in civil contempt for violating a court order requiring it to forensically image personal phones used by agents present at 15 identified immigration operations.

U.S. District Judge Maame Ewusi-Mensah Frimpong ordered the government to pay $500 per day until it fully complies with a Jan. 16 order from a magistrate judge regarding the imaging of the phones.

“Upon review of the parties’ submissions and counsel’s representations at the hearing, it does not appear that Defendants’ noncompliance is due to an inability to comply,” Frimpong said in her order. “Instead, the clear and convincing evidence shows that Defendants have acted intentionally and not in good faith.”

Frimpong ordered the government to file a notice of payment every seven days. A Department of Justice lawyer filed its first notice Tuesday indicating the government had submitted a $3,500 payment.

In an emailed statement, the Department of Justice said: “We are aggressively defending the President’s immigration priorities and expect to prevail in this case, as we already did once at the Supreme Court.” The Supreme Court stayed a previous order from Frimpong barring stops based on race or ethnicity, language, location or employment, either alone or in combination.

“The district court is defying that decision by pressing forward despite the Supreme Court’s clear ruling that it likely lacks jurisdiction,” the statement read.

A spokesperson for the Department of Homeland Security said “agents are focused on protecting the American people — not entertaining performative outrage.”

Frimpong’s July 28 order, which was unsealed Tuesday, stems from a lawsuit filed last year by the American Civil Liberties Union of Southern California, Public Counsel and other groups and private attorneys calling to end unlawful stops and arrests and for the protection of due process and access to counsel rights for people in immigration detention.

The plaintiffs asked the government to turn over communications that agents had regarding the operations in order to show they did not have reasonable suspicion for all the stops.

As part of the lawsuit, U.S. Magistrate Judge Sheri Pym ordered the government in January to forensically image any cellphones used by agents during specific operations. In May, the plaintiffs in the case asked the court to order the government to prove why it should not be held in contempt over the failure to image a single personal phone since Pym’s order.

Frimpong, an appointee of President Biden, ordered the government to reimburse the plaintiffs and organizations that brought the lawsuit for the time and costs spent “in getting the Government to comply with the Magistrate Judge’s Order.”

“Not only are federal agents violating the Constitution on the streets, the government is violating court orders by intentionally withholding critical evidence about its immigration enforcement operations. The court has found the government in contempt and rightfully issued sanctions,” said Mayra Joachín, senior staff attorney with the ACLU Foundation of Southern California. “We cannot allow the government’s disturbing pattern of unlawful conduct and misleading public statements about its immigration operations to continue.”

The plaintiffs also noted in the May filing that the government had informed them that Gregory Bovino, the former commander at large for Border Patrol, had lost his previously issued work phone in January and was issued a new phone.

At a June 25 contempt hearing, Jonathan Robbins, a Justice Department lawyer, said they objected to the order regarding personal phones, stating that those “are not in our custody and control.”

Robbins told the judge that U.S. Customs and Border Protection had sent questionnaires to agents associated with Operation at Large Los Angeles, with more than 1,400 returned. Of those, 885 officers indicated they use their personal phones for work, according to Robbins.

Although 88 agents consented to the forensic imaging of their personal phones, Robbins said none of those had been imaged at the time of the hearing.

Robbins said government phones were still being imaged at that point, with a capacity for only three phones every two weeks. He told the judge it was “a very, very slow process.”

“It’s a completely overly intrusive way to collect discovery,” Robbins told Frimpong, noting that agents who had been deployed to L.A. were now scattered across the country. “We’re not trying to flout the orders of the court.”

“We’re over four months later and all I’m hearing is that an email and a questionnaire went out,” Frimpong said during the hearing. “We’re not going to wait forever.”

During the hearing, David Fry of Munger Tolles & Olson, which is representing the plaintiffs, told Frimpong that the imaging of the phones was a meaningful measure to address concerns that some agents may not be following the rules. Fry noted that racially insensitive comments had been found in some materials.

The Times reported last week that immigration agents were captured on body camera footage and text messages using slurs to refer to Latinos.

Frimpong dismissed the government’s argument that phone imaging would take substantial effort, noting that “the time-consuming nature of the imaging process makes Defendants’ delay less excusable.”

“Though they have explained that the process is time-consuming, they do not appear to have started it, or provided any adequate explanation as to why,” Frimpong wrote. “Moreover, Defendants appear unable to give this Court — or Plaintiffs — a realistic estimate of how long they can expect to continue waiting for the outstanding personal phones to be imaged.”

Frimpong said that since the June hearing, the government has not supplied information suggesting that personal phones are now beginning to be imaged.