DeSantis’s Migrant Stunts Come Back to Bite Him

Image courtesy of Fox 13 Tampa Bay

Florida Gov. Ron DeSantis’s infamous migrant flights are back in the headlines today. After over eight months of investigation, the Bexar County Sheriff’s Department in Texas has recommended that the DA bring criminal charges relating to DeSantis’s political stunt of gathering asylum seekers and sending them to blue enclaves. In September 2022, at DeSantis’s instruction, 49 migrants were flown from Texas (yes Texas, not Florida) to Martha’s Vineyard in Massachusetts without any advance notice to that community.

But in seeking to score political points, DeSantis (and/or his top aides such as his chief of staff and head of public safety) may have crossed a legal line. According to a spokesperson for the Bexar County Sheriff’s office, the proposed charges, which are not yet publicly known, include both felony and misdemeanor charges of “unlawful restraint” because the migrants were apparently lured onto the planes under false pretenses. The names of the defendants in the case are not yet public.

This move follows news that DeSantis apparently pulled another pair of stunts over the weekend, with the state of Florida flying two sets of migrants picked up at the Texas border to California’s state capital of Sacramento. The use of asylum seekers as pawns is widely viewed as a way for DeSantis to demonstrate his willingness to abuse his authority in order to “own the libs.” It also represents an escalation of the political feud between Gov. Gavin Newsom of California and DeSantis, who have publicly attacked each other’s state policies.

Gov. Newsom responded angrily to the move on Twitter.

you small, pathetic man.

This isn't Martha's Vineyard.

Kidnapping charges?

He then attached the relevant code section setting out the crime of kidnapping where the victim is transported across California state lines.

What should we make of the proposed criminal charges, what might they contain, and whom might they name as defendants? And what about potential legal action by the state of California? Could Attorney General Rob Bonta bring similar charges? (Full disclosure, Bonta is a former work colleague of mine while we were in private practice together.) And where are the feds in all this?

Let’s take a deeper dive.

A Texas sheriff seeks justice

Back in September of last year, Bexar County Sheriff Javier Salazar made clear that he considered what took place in San Antonio, which is within his county, to be a crime. The migrants, he said, were used as a “photo-op” after they were “stranded” in Martha’s Vineyard. Salazar called the move “disgusting and a violation of human rights,” adding he believed there needed to be accountability for what happened.

Within a month, Salazar had confirmed that his office considered the 49 migrants to be victims of a crime and had identified other suspects in his office’s investigation beyond the woman, Perla Huerta, who had lured the asylum seekers onto the plane under false pretenses. But he also indicated, at least back then, that he was only considering those in the area at the time of the incident to be suspects, appearing to rule out charges against Gov. DeSantis or his top aides.

But that of course was before further details about how the operation was planned and executed became known. The plan to fly migrants from Texas to Martha’s Vineyard, including the knowledge that they would be lured under false pretenses, may have gone much farther up the chain—which might also explain why it has taken nine months for the case to come to charges.

Felony and misdemeanor unlawful restraint

The requested charges all apparently relate to unlawful restraint, which in Texas is a misdemeanor when it involves an adult but becomes a felony when it involves children. Here, five of the migrants were under the age of 17, meaning felony charges will lie with respect to unlawful restraint charges relating to them.

As Norman L. Eisen and Fred Wertheimer of Just Security noted, the primary actors here were Huerta and an accomplice identified only as “Emmanuel” who made false statements to the migrants about what was awaiting them in Martha’s Vineyard. Looking more closely at the Texas unlawful restraint statute, they observed,

It is an offense to “intentionally or knowingly restrain […] another person.” Tex. Penal Code Ann. § 20.02(a) (West 2021). “Restrain” means to “restrict a person’s movements without consent, so as to interfere substantially with the person’s liberty, by moving the person from one place to another or by confining the person.” Id. § 20.01(1). And restraint is considered to be “without consent” if it is accomplished by “force, intimidation, or deception” in the case of adult victims. Id. § 20.01(1)(A). While the interference with liberty must be “substantial,” there is no specific time or distance requirement. See Hines v. State, 75 S.W.3d 444, 448 (Tex. Crim. App. 2002).

And further, there is no exception for a felony being charged for the transport of children without consent, even if their parents were present. As Eisen and Wertheimer observed,

restraint of children is “without consent” if it is accomplished “by any means, including acquiescence of the victim” if the victim is a child, and (i) the child is under 14 and the child’s parent or guardian “has not acquiesced in the movement or confinement”; or (ii) the child is older than 14 but younger than 17, is taken “outside of the state and outside a 120-mile radius from [their residence],” and their parent or guardian has not acquiesced in the movement. Id. § 20.01(1)(B)…. [I]f the parent’s own restraint was “without consent” then they could not have acquiesced in the movement of any of their children who traveled with them.

Aiding and abetting and conspiracy?

While it looks like Huerta and “Emmanuel” are in deep legal trouble for their actions, others might get sucked in, too. If the facts show, for example, that Florida officials aided or abetted the primary actors, they could be held criminally responsible, just as if they had been there personally. Specifically, if anyone else acted “with intent to promote or assist the commission of the offense,” they also could be charged with unlawful restraint. 

A criminal conspiracy to deceive the migrants to board the flights may also lie against higher ups if the evidence shows that officials agreed to the illegal plan and took any action in furtherance of it.

At this time, we don’t know if anyone ordered or signed off on a plan to use deception to lure the migrants aboard the plane under false pretenses. But some important questions remain unanswered. 

For example, Huerta had the migrants sign a partially-translated document with the untranslated section specifying that the journey would take them from Texas to Massachusetts. Because that part was still in English, there was no meaningful way for the migrants to have consented based on that document. Did Huerta create that document on her own, or did she have assistance? Did she run it or even the idea of it by anyone in DeSantis’s administration?

The migrants also received a shiny red folder with official looking materials. It included a fake brochure, which was not produced by any Massachusetts agency, that purported to give instructions for how to receive refugee benefits upon arrival. Again, did Huerta produce that fake document on her own, or were others involved?

It may well be that Salazar doesn’t seek to haul Florida officials into Texas state court over these actions, particularly if the evidence around a conspiracy isn’t very strong. I would be very surprised if DeSantis himself were named, as he appears to have left the details and planning of the operation to others. But I also would not rule out the possibility that Salazar found credible evidence of a scheme to deceive the migrants that went further than the operators on site.

A California case?

Added now to the brew is outrage and indignation over recent flights of migrants to Sacramento, which took place twice this past week. Gov. Newsom was quick to label the stunt illegal and threaten DeSantis with charges of kidnapping, citing the state’s law against transportation of people across the state line who are taken by force or fraud:

(d) Every person who, being out of this state, abducts or takes by force or fraud any person contrary to the law of the place where that act is committed, and brings, sends, or conveys that person within the limits of this state, and is afterwards found within the limits thereof, is guilty of kidnapping.

California Attorney General Rob Bonta echoed the governor’s warning. “It’s potentially illegal. It could violate criminal law, it could violate civil laws, so we're going to continue the investigation. We're going to get to the bottom of that,” Bonta told CNN.

If DeSantis’s minion again deployed deception to lure these migrants on to planes, then California’s kidnapping laws could be implicated. And, speaking personally here, state Attorney General Bonta isn’t the type to just let a clear violation go. Moreover, it might be harder for DeSantis and his aides to escape a charge of aiding and abetting or criminal conspiracy this time, given that they were on clear notice of the kinds of illegal activities that were previously conducted in Texas in the Martha’s Vineyard case.

But DeSantis would likely relish the fight. It would set him up squarely against Newsom and keep him in the headlines in just the way he wants. After all, the whole point is to put on a show for the base and demonstrate how cruel and inhumane he dares to be.

This is one reason why the federal government, which was looking into the flights, may stay its hand for now and allow state law enforcement to act first. DeSantis may be trying to bait federal authorities into coming after him or his administration so that he can wear the victim mantle and claim he is the subject of federal overreach.

If the Bexar County case proceeds and if it actually names state official defendants beyond the primary actors on the ground in Texas—and that’s a big if, and one for which I harbor doubts based on Salazar’s original statements—that would set up an unprecedented showdown. Imagine Florida officials accused of aiding and abetting or conspiring to commit felony unlawful restraint in the state of Texas. Do they answer the summons? Does DeSantis agree to extradite his own top advisors to face arrest and charges in San Antonio?

And does California investigate whether those same officials are guilty of conspiring or aiding and abetting kidnapping in Texas, based on further false representations to migrants? Does DeSantis thumb his nose at the charges and step up the flights?

It’s hard to wrap our heads around, but this is indeed where we could be soon.