ICE agents lost ‘irreplaceable video’ in Charlotte assault case, records allege
New court documents allege federal immigration agents destroyed “irreplaceable” video evidence after they arrested and made false statements about a Charlotte woman who was protesting the Border Patrol in the city last year.
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Ahead of a scheduled trial in the U.S. District Court for the Western District of North Carolina next month, attorneys for Heather Morrow are asking a federal judge to dismiss the case against her. The former Charlotte bus driver, who just unsuccessfully ran for a Mecklenburg County Commission at-large seat, faces charges of assaulting a federal agent while on federal property.
Her attorneys contend the alleged assault did not happen on U.S. property. They also maintain Morrow did not assault an agent and say that video shows that.
At the same time, assistant U.S. attorneys are asking a judge to move forward to trial and bar Morrow and her attorneys from suggesting her protest was protected by the First Amendment or arguing about the politics or the Trump administration’s immigration policies and enforcement.
The case is the last in a batch of charges that accused protesters and U.S. citizens of assaulting agents as they detained people in immigrant neighborhoods in south and east Charlotte for a week in November.
Federal prosecutors working for Trump-appointed U.S. Attorney Russ Ferguson dismissed all other cases, The Charlotte Observer previously reported.
Morrow was arrested alongside a man named William Stanley on Nov. 16 and charged the next day with felony assaulting, resisting and impeding a federal officer. The two were with several other protesters outside the U.S. Immigration and Customs Enforcement office off Tyvola Centre Drive. When agents came to the driveway, Stanley walked in front of a car trying to pass through and put his hands on the hood, prosecutors say and bystander video shows.
As the agent got out and struggled to arrest Stanley, Morrow approached and touched the arresting agent’s shoulder, video shows.
In a news release announcing her arrest, Ferguson repeated what agents alleged in a criminal complaint: “Morrow approached the officer from behind and forcibly made physical contact with him, including grabbing the officer’s shoulders and attempting to jump on the officer’s back.”
That’s not what happened, video shows. One of Morrow’s hands touched the agent’s shoulder. Her feet never left the ground — until two other agents tackled her onto the concrete.
Morrow spent a night in jail and was suspended from her job. Then prosecutors dropped the felony charge against Morrow on Nov. 24, after defense attorneys Rob Heroy and Xavier T. de Janon shared the bystander video with Ferguson’s prosecutors “prior to a likely-embarrassing preliminary hearing” that would have shown “the agents’ version was not true,” the defense attorneys wrote in a Thursday motion.
Prosecutors the same day filed new misdemeanor charges.
Morrow and Stanley, represented by Claire J. Rauscher and James P. Cooney III, are now both charged with misdemeanor obstructing the use of entrances on federal property, impeding and disrupting the performance of official duties of government employees, failure to comply with lawful direction of authorized individuals, and assaulting, resisting, opposing, impeding, intimidating, and interfering with persons performing official duties.
“ICE spread blatant lies to the media to intimidate Ms. Morrow,” Heroy said in a statement to the Observer. “We are grateful the constitution is there to protect citizens from abuses by their government and we are looking forward to trial.”
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In a series of motions filed this week, Morrow’s attorneys also argued that “dismissal is the only appropriate remedy” in her case.
They say the federal government only this month told them about now-destroyed surveillance video on the ICE building. The federal government told ICE agents to preserve it in November and learned it had been lost in February.
Defense attorneys learned of its short existence weeks ago. And it wasn’t the first time agents lost evidence in her case.
The attorneys contend that the video would have shown that protesters were not on federal property and that agents’ stories of what happened were “materially false.”
ICE rents a building on the Tyvola Centre Drive property, according to court documents. The government leases only 48,000 square feet and 29 parking spots in the 350,000-square-foot property, and the lease does not extend to the place where prosecutors say Morrow and Stanley encountered officers, the defense attorneys maintain.
They have asked a judge to dismiss the charge of obstructing the use of entrances on federal property.
Federal prosecutors Dallas Kaplan, Kenneth Smith and Caryn Finley have focused on other issues in their pretrial motions.
They’re asking Trump-appointed U.S. District Judge Matthew E. Orso to bar defense attorneys from arguing that Morrow and Stanley are being vindictively prosecuted, bringing up the Trump administration’s immigration policies or arguing that they were protected by the First Amendment.
Prosecutors say:
Morrow and Stanley “are free to argue that the evidence presented at trial is insufficient to support a guilty verdict on the counts charged,” prosecutors added.
“Our loyalty is not to headlines. It is not to politics,” Ferguson said at his Investiture Ceremony July 24. “Our loyalty is to the Constitution, the facts, and the law.”
“Nowadays, people try to insert politics into cases, but most of our cases have nothing to do with politics,” he told the Observer after the event. “We’re doing the same thing we do all the time: keeping our streets safe, helping people go to sleep at night without thinking about crime.”
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