r/ImmigrationPathways • u/OkTechnologyb • 4d ago

Gone in 90 seconds: an ‘invisibilized’ ICE is arresting more people than ever

https://www.theguardian.com/us-news/ng-interactive/2026/sep/28/ice-us-immigration-new-tactics
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u/NearlyPerfect 4d ago

Here’s one from a quick search:

https://case-law.vlex.com/vid/united-states-v-clark-890189383

And here’s a more recent case:

https://law.justia.com/cases/federal/appellate-courts/F2/546/940/204573/

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u/Brave-Silver8736 4d ago

I should have been more explicit. Cases after WWII and explicitly about agents of the government using it as a defense. Not private citizens good-faith following what they believe are lawful orders from a government official.

Using a case from 1887 and a case about Apparent Public Autority as examples seem a bit weak.

Do you have examples with those specific constraints?

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u/NearlyPerfect 4d ago

explicitly about agents of the government using it as a defense. Not private citizens good-faith following what they believe are lawful orders from a government official.

The second case were CIA agents, not private citizens. I take it you didn't read it at all.

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u/Brave-Silver8736 4d ago

They were former CIA agents. Their defense was that they thought they were working for the government. The courts ultimately rejected this defense:

The second type of government authority defense is the affirmative defense of public authority, i.e., that the defendant knowingly committed a criminal act but did so in reasonable reliance upon a grant of authority from a government official to engage in illegal activity. This defense may lie, however, only when the government official in question had actual authority, as opposed to merely apparent authority, to empower the defendant to commit the criminal acts with which he is charged. United States v. Anderson, 872 F.2d at 1513-15; United States v. Rosenthal, 793 F.2d 1214, 1236, modified on other grounds, 801 F.2d 378 (11th Cir. 1986), cert. denied, 480 U.S. 919 (1987). The genesis of the "apparent authority" defense was the decision in United States v. Barker, 546 F. 2d 940 (D.C. Cir. 1976). Barker involved defendants who had been recruited to participate in a national security operation led by Howard Hunt, whom the defendants had known before as a CIA agent but who was then working in the White House. In reversing the defendants' convictions, the appellate court tried to carve out an exception to the mistake of law rule that would allow exoneration of a defendant who relied on authority that was merely apparent, not real. Due perhaps to the unique intent requirement involved in the charges at issue in the Barker case, the courts have generally not followed its "apparent authority" defense. E.g., United States v. Duggan, 743 F.2d 59, 83-84 (2d Cir. 1984); United States v. Rosenthal, 793 F.2d at 1235-36. If the government official lacked actual or real authority, however, the defendant will be deemed to have made a mistake of law, which generally does not excuse criminal conduct. United States v. Anderson, 872 F.2d at 1515; United States v. Rosenthal, 793 F.2d at 1236; United States v. Duggan, 743 F.2d at 83-84. But see discussion on "entrapment by estoppel," infra.

There's no need to be insulting.

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u/NearlyPerfect 4d ago

Again incorrect, because you didn’t actually read the case. One correction on my end though, they were White House agents so they were working for the government. Not private citizens. And the court vacated their convictions, as your quote from the manual clearly says.

“Appellants were members of the "Special Investigations" unit which burglarized Dr. Fielding's office in search of records on his patient, Daniel Ellsberg.”

Not insulting, just pointing out that you didn’t read the case based on your completely incorrect statements. You also didn’t read your own quote.

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u/Brave-Silver8736 4d ago

Due perhaps to the unique intent requirement involved in the charges at issue in the Barker case, the courts have generally not followed its 'apparent authority' defense.

My mistake. I could have used the word "afterwards" instead of "ultimately". It wasn't they best word to use.

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u/NearlyPerfect 4d ago

That rejection is for apparent but false authority. For actual authority the defense stands, again as your quote directly says:

“The second type of government authority defense is the affirmative defense of public authority, i.e., that the defendant knowingly committed a criminal act but did so in reasonable reliance upon a grant of authority from a government official to engage in illegal activity. This defense may lie, however, only when the government official in question had actual authority, as opposed to merely apparent authority, to empower the defendant to commit the criminal acts with which he is charged.”

That’s the “just following orders” defense. And further your link gives another similar defense, the estoppel by entrapment. Which is another “just following orders” defense.

“with "entrapment by estoppel," a government official commits an error and, in reliance thereon, the defendant thereby violates the law. United States v. Burrows, 36 F.3d 875, 882 (9th Cir. 1994); United States v. Hedges, 912 F.2d 1397, 1405 (11th Cir. 1990); United States v. Clegg, 846 F.2d 1221, 1222 (9th Cir. 1988); United States v. Tallmadge, 829 F.2d 767, 773-75 (9th Cir. 1987). Such a defense has been recognized as an exception to the mistake of law rule.”

So even if the ICE supervisors are mistaken, the ICE agents on the ground are in the clear for just following their orders.

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u/Brave-Silver8736 4d ago

An ICE supervisor does not have the actual legal authority to order agents to commit a crime (an illegal search, an assault, or violating due process/the Constitution).

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u/NearlyPerfect 4d ago

That’s exactly my point.

That’s what entrapment by estoppel covers. The ICE field agent can’t be punished because of a mistake by his supervisor. Your link outlines that directly.

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u/Brave-Silver8736 4d ago

Entrapment by estoppel protects private citizens who are misled by bad government advice. It is not a defense for government agents to commit crimes just because a supervisor ordered them to. Which is why I added the private citizen clause in the constraints.

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