The Volokh Conspiracy
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Magistrate Judge Recommends Not Dismissing Prosecution of Wisconsin Judge Hannah Dugan for Allegedly Interfering with Immigration Arrest
From yesterday's report and recommendation by Magistrate Judge Nancy Joseph (E.D. Wisc.) in U.S. v. Dugan:
The indictment charges as follows:
[Count One:] On or about April 18, 2025, Dugan knowingly concealed E.F.R., a person for whose arrest a warrant and process had been issued under the provisions of the law of the United States, so as to prevent the discovery and arrest of E.F.R., after notice and knowledge of the fact that a warrant and process had been issued for the apprehension of E.F.R., in violation of 18 U.S.C. § 1071[.]
[Count Two:] On or about April 18, 2025, Dugan did corruptly endeavor to influence, obstruct, and impede the due and proper administration of the law under which a pending proceeding was being had before a department and agency of the United States, namely the administrative arrest of E.F.R. for purposes of removal proceedings conducted by the United States Department of Homeland Security, by committing affirmative acts to assist E.F.R. to evade arrest, including:
- confronting members of a United States Immigration and Customs Enforcement (ICE) Task Force and falsely telling them they needed a judicial warrant to effectuate the arrest of E.F.R.;
- upon learning that they had an administrative warrant for E.F.R.'s arrest, directing all identified members of the ICE Task Force to leave the location of the planned arrest (a public hallway outside of Courtroom 615 of the Milwaukee County Courthouse) and go to the Chief Judge's office;
- addressing E.F.R.'s Milwaukee County Circuit Court criminal case off the record while ICE Task Force members were in the Chief Judge's office;
- directing E.F.R. and his counsel to exit Courtroom 615 through a non-public jury door; and
- advising E.F.R.'s counsel that E.F.R. could appear by "Zoom" for his next court date
[i]n violation of 18 U.S.C. § 1505….
Dugan sought to dismiss the indictment, on the grounds that her actions were protected by judicial immunity; the Magistrate Judge went through a long analysis of the precedents on judicial immunity (dating back to 1607), and summarized it thus:
In the civil context, it is well-established and undisputed that judges have absolute immunity from civil lawsuits for monetary damages when engaging in judicial acts. While it is not always crystal clear what constitutes a "judicial act," the Supreme Court counsels courts to consider whether the act is a function normally performed by a judge and whether the parties dealt with the judge in his judicial capacity. The Court has stated there is an intelligible distinction between judicial acts and the administrative, legislative, or executive functions that judges may on occasion be assigned by law to perform. The Court has articulated that judicial immunity is not overcome by allegations of bad faith or malice.
In the criminal context, review of the case law supports the following. First, judges are not immune from criminal prosecution for acts wholly outside their official roles as judges. Dugan cites several examples that fit into this category, such as a state court judge who was convicted of murdering his wife as they watched television at home and a state court judge who was convicted of sexual battery of a female lawyer in his chambers.
Second, judges are not immune from prosecution for the criminal deprivation of constitutional rights under 18 U.S.C. § 242.
And third, judges are not shielded by judicial immunity from criminal prosecution for acts, though related to official duties, are in violation of criminal law. See, e.g., Claiborne, 727 F.2d 842; Wallace v. Powell, 2009 WL 4051974….
Dugan tries to distinguish her case by arguing that the charged acts are "devoid of the self-enrichment or self-gratification that marks earlier cases in which judges were convicted for using judicial status as leverage or opportunity for a bribe, kickback, or favor, or to commit another crime." Again, the distinction that takes these official duty cases out of the shield of immunity is not self-enrichment or the motive of the judge. It is whether the criminal law has been violated. In other words, a judge's actions, even when done in her official capacity, does not bar criminal prosecution if the actions were done in violation of the criminal law.
Furthermore, consider the only case with similar allegations to this case. In United States v. Joseph, a judge on the Massachusetts District Court, Judge Shelley Richmond Joseph, was, similar to Dugan here, federally charged with obstruction of justice and obstruction of a federal proceeding in violation of §§ 1512 and 1505. In that case, an ICE officer working for the Department of Homeland Security arrived at the courthouse to take into custody an individual who had been arrested days earlier who was allegedly the subject of an immigration detainer and warrant based on a final order of removal. The DHS intended to detain the individual and effect his removal from the United States in the event he was released from state custody. Joseph allegedly facilitated this individual's departure from the courthouse using the rear sally port door of the lockup on the courthouse's lower level, rather than through the main door leading from the courtroom to the lobby where the ICE officer was waiting….
I agree that determining whether a warrant establishes probable cause; directing people outside her courtroom to talk with the Chief Judge about a planned arrest; addressing a case off the record; telling people in her courtroom what door to use to re-enter the public hallway; and allowing a party to appear by Zoom are all part of a judge's job. I also agree … that the appellate courts are the proper forum to address disagreements with a trial judge's opinions, errors, or mistakes. However, I do not agree that the case law supports that these judicial acts bar prosecution where the indictment alleges that the acts were done "corruptly" or to facilitate violation of the criminal law.
At bottom, the indictment does not charge Dugan for "opining on the fly," managing her courtroom, or allowing someone to appear by Zoom for future hearings. There are no, and there cannot be, federal statutes criminalizing such conduct. Rather, the indictment charges Dugan with violating federal criminal laws by (1) "knowingly conceal[ing] E.F.R., a person for whose arrest a warrant and process had been issued under the provisions of the law of the United States, so as to prevent the discovery and arrest of E.F.R., after notice and knowledge of the fact that a warrant and process had been issued for the apprehension of E.F.R., in violation of 18 U.S.C. § 107" and by (2) "corruptly endeavor[ing] to influence, obstruct, and impede the due and proper administration of the law under which a pending proceeding was being had before a department and agency of the United States, namely the administrative arrest of E.F.R. for purposes of removal proceedings conducted by the United States Department of Homeland Security, in violation of 18 U.S.C. § 1505."
This conclusion does not leave judges acting in their official capacities or judicial independence at the mercy of prosecutors. As the Ninth Circuit stated in Claiborne, judges enjoy the "same protections as ordinary citizens from vindictive prosecution." A prosecutor seeking to charge a judge of a criminal offense, if proceeding by criminal complaint as was the case here, must satisfy the reviewing judge that there is probable cause a federal crime has been committed. Additionally, the prosecutor must then present his case to a grand jury as required by the Fifth Amendment. And ultimately, the prosecutor must prove each of the elements of the charged offense beyond a reasonable doubt to a unanimous jury of twelve citizens….
The Magistrate Judge also recommended rejecting Dugan's constitutional arguments, which were largely based on the Tenth Amendment. And she concluded that the factual questions related to whether Dugan was guilty had to be resolved at trial, rather than on a motion to dismiss.
Read the whole opinion for much more, including the Magistrate Judge's explanation of why the U.S. v. Trump presidential immunity decision doesn't apply to judicial immunity claims.
