The Supreme Court kept anti-ICE activist Kyle Wagner in custody by denying his pretrial release bid, a win for prosecutors who argued he poses a danger to the community.
The justices on Tuesday refused to revive a lower-court order that would have freed Wagner before trial, Reuters reported. Federal prosecutors had already won a reversal of that release order, and Wagner remains locked up on charges of cyberstalking and transmitting interstate threats.
Wagner, a self-described antifa member, was arrested in Minneapolis on February 5 during a large federal immigration enforcement push. He faces trial scheduled to begin in January.
Prosecutors say he tried to publish personal information about a prominent online supporter of President Donald Trump’s hardline immigration policies and posted that the situation in Minneapolis was “kill or be killed.” His lawyers call the detention unlawful and insist he has no violent criminal history.
The Trump administration made countering left-wing groups and antifa a priority in the president’s second term. Trump signed an executive order last year declaring the movement a domestic terrorist organization and threatened to investigate and prosecute those who financially support it.
On the day of Wagner’s arrest, then-White House Press Secretary Karoline Leavitt held up a printed photograph of the shirtless activist at the briefing lectern and described him as a domestic terrorist.
Leavitt told reporters:
"As for the left-wing agitators who have been illegally obstructing ICE's immigration efforts, we are not letting that behavior go unnoticed or unpunished."
She added:
"In fact, just today, the Department of Homeland Security arrested this individual. He is a self-proclaimed antifa member who has been threatening, doxing, harassing ICE."
The Minneapolis-area crackdown involved a large deployment of federal agents and drew protests. Reporting on the operation also noted that immigration agents killed two U.S. citizens in related incidents.
U.S. District Judge Denise Page Hood had ordered Wagner’s pretrial release. Federal prosecutors appealed, arguing he posed a danger to the community. The Cincinnati-based 6th U.S. Circuit Court of Appeals agreed in August and reversed the release order by a 2-1 vote.
Judge Whitney Hermandorfer, a Trump appointee, wrote the majority opinion joined by Judge Alan Norris, an appointee of former President Ronald Reagan. The panel ruled the administration had made an adequate showing of Wagner’s dangerousness based on his social media activity.
Judge Rachel Bloomekatz, an appointee of former President Joe Biden, dissented. She questioned the government’s unusual insistence on keeping him locked up.
Bloomekatz wrote:
"The government seldom appeals pretrial release orders, so why is it insistent here?"
She also noted Wagner’s appearance and online persona while stressing his record:
"Wagner, who identifies as 'antifa' (anti-fascist) and has large tattoos on his face, neck and chest, looks aggressive in his social media videos, so it is no surprise that the White House press secretary held up a photo from one of his videos while touting law enforcement efforts against 'left-wing agitators.'... But Wagner has never committed a violent crime."
Wagner’s lawyers told the Supreme Court the 6th Circuit’s dangerousness finding rested on a “tendentious reading of Wagner's social media postings.” They argued he should not be held before trial.
The high court declined to step in. Wagner stays in custody on one count each of cyberstalking and transmitting interstate threats while he awaits the January trial.
Federal prosecutors treated the online threats and attempted doxxing as serious conduct aimed at people supporting immigration enforcement. The courts above the trial judge backed that view when they blocked his release.
People who threaten and harass immigration officers or their supporters do not get a free pass just because they call themselves activists. The system held the line here.
