EL PASO, Texas (Border Report) – A county court-at-law judge on Monday found no probable cause to continue holding 140 migrants at the El Paso County Jail on state riot charges.
The charges stemmed from an April 12 mass illegal crossing from Mexico into the United States in which migrants cut or tore down razor wire placed by Texas in front of Gate 36 of the border wall in El Paso. A state prosecutor alleged the “push” forward by 142 migrants out of a group of more than 300 that forced Guard members to “back off” constitutes a riot.
Border Report has documented at least two other instances (March 21 and March 24) of multiple arrests on various charges by state authorities who have set up barriers along the river several yards in front of the U.S. border wall to discourage migrants from crossing the border between ports of entry.
But a public defender said the arrest affidavits don’t say what each migrant did April 12, nor name an officer or agent who saw them do it. She said migrants who followed the crowd may not have been aware of what happened at the front of the crowd.
“It’s like someone at the front of a line at a concert gets in a fight with the bouncer and you arrest everyone that was in line,” El Paso County Chief Public Defender Kelli Childress said.
El Paso County Court-at-Law No. 7 Judge Ruben Morales said the arrest affidavits didn’t show probable cause that everyone named in the documents participated in the riot. He excluded from his ruling two individuals, one who was never arrested and one being held on a felony charge.
“The question is whether the affidavits provide the necessary probable cause to believe this individual named has committed the offense of rioting. Not whether there was a riot, and people were involved in that, or that he was in the group of (300-plus), but that this person took some specific action detailed in the affidavit,” the judge said in court.
Morales added he could give prosecutors and the defense time later to present witnesses and additional documents, but that the bar for his ruling on the probable cause of the case to keep people in jail is lower.
Jennifer Lynn Vandenbosch, who represented the state at the hearing, said the migrants would not be walking out of jail, anyway, because the federal government has placed immigration detainers on all of them for illegal entry into the United States. That means they must stay at the county jail for up to another 48 hours until the Border Patrol picks them up.
After the ruling, Childress said the state wants to charge large numbers of migrants coming across the border.
“To defend real charges is one thing, but what we have is mass arrests that don’t have probable cause. What we’re seeing is an effort to get the headline, to get it on the news that 142 migrants breached the border, and they’re using inflammatory language that’s just not true,” she said. “With the very limited resources we are going to fight very hard those that are true injustices as opposed to that have real evidence of criminal action.”
Vandenbosch declined to speak with reporters after Monday’s hearing and referred further questions to District Attorney Bill Hicks.
In court, she complained repeatedly that the court did not give prosecutors sufficient notice — she said the state was notified of the hearing Sunday night — to prepare.
El Paso District Attorney Bill Hicks said in a news conference on Tuesday, April 23 that he was considering an appeal of the ruling.
He said his office took 141 cases to a grand jury, which believes there is probable cause to charge the migrants with riot participation. Hicks also said they objected to the hearing because they didn’t have adequate advance notice and were not fully aware of what the hearing would cover.
