The Civic Node

Tincher v. Noem — Menendez Order Restricting ICE Tactics Against Protesters

8 min read

Original source

Summary

Judge Katherine M. Menendez’s 83-page preliminary-injunction order in Tincher v. Noem, No. 0:25-cv-04669 (KMM/DTS), ECF No. 85 — the civil-liberties injunction restraining how ICE may treat protesters and observers during Operation Metro Surge. Six named plaintiffs, represented by the ACLU of Minnesota, brought First Amendment (free speech/press/assembly and retaliation) and Fourth Amendment (unlawful seizure / excessive force) claims on behalf of a putative class of people who record, observe, and protest the operation. The court granted in part, enjoining “Covered Federal Agents” — those doing Metro Surge enforcement or responding to related protests, not agents in routine operations — from retaliating against, arresting, detaining, or pepper-spraying peaceful protesters, and from stopping drivers without reasonable articulable suspicion. Crucially, the order held that safely following agents at an appropriate distance does not, by itself, create reasonable suspicion for a vehicle stop — protecting the “ICE Watch” tracking tactic. DHS was ordered to distribute the order to all Covered Federal Agents within 72 hours, and it was to remain in effect until Operation Metro Surge concludes. The Eighth Circuit then administratively stayed it (~Jan 21), followed by a longer/indefinite stay (~Jan 26–27).

Key Points

  • Filed: January 16, 2026 (ECF No. 85). The action was initiated December 17, 2025; the TRO motion was filed the next day (Dkt. 16) and converted to a preliminary-injunction motion at a Dec 19, 2025 status conference.
  • Six named plaintiffs: Susan Tincher, John Biestman, Janet Lee, Lucia Webb, Abdikadir Noor, and Alan Crenshaw — on behalf of a proposed class of “All persons who do or will in the future record, observe, and/or protest against the DHS immigration operations that have been ongoing in this District since December 4, 2025.”
  • Counsel: ACLU of Minnesota represents the plaintiffs.
  • Defendants: Kristi Noem (DHS Secretary), Todd Lyons (Acting ICE Director), Marcos Charles (Acting EAD, ERO), David Easterwood (Acting Field Office Director, ICE St. Paul), John A. Condon (Acting EAD, Homeland Security Investigations), DHS, and unidentified federal agencies/agents — all in official capacities.
  • Claims (five total): (1) First Amendment — free speech/press/assembly; (2) First Amendment — retaliation; (3) Fourth Amendment — unlawful seizure and excessive force; (4) civil conspiracy; (5) declaration of rights under 28 U.S.C. §2201.
  • Alleged conduct: chemical irritants, intimidation including pointing firearms, detention, and arrest of law-abiding observers/protesters.
  • Ruling: Motion GRANTED IN PART (and denied in part).
  • Scope — “Covered Federal Agents”: agents conducting Metro Surge immigration enforcement OR responding to protests arising in response to it. Explicitly does NOT apply to agents conducting routine operations.
  • The four operative restrictions (verbatim list below in Quotes).
  • The “ICE Watch” protection: “The act of safely following Covered Federal Agents at an appropriate distance does not, by itself, create reasonable suspicion to justify a vehicle stop.” The court separately held it was NOT deciding whether following vehicles is First-Amendment-protected — it ruled on Fourth Amendment grounds (no lawful basis for the stop), a narrower path.
  • Dissemination: DHS must distribute the order to all Covered Federal Agents and Defendants within 72 hours, and to all newly deployed agents arriving for the operation.
  • Duration: in effect “until Operation Metro Surge concludes or the conditions change such that it is no longer necessary.”
  • THE STAY: the Eighth Circuit administratively stayed the injunction (~Jan 21, 2026), then issued a longer/indefinite stay (~Jan 26–27) in a brief per curiam decision finding the government made a “strong showing” the injunction was “unlikely to survive appellate review,” “overly broad,” and “impermissibly vague.”

Newsletter Angles

  • A federal judge wrote down exactly what ICE was doing — pepper spray, retaliatory arrests, traffic stops for following — and ordered it to stop. A preliminary injunction that names specific tactics is itself a finding that those tactics were occurring. The injunction is the evidence.
  • The “safely following … does not, by itself, create reasonable suspicion” line is a direct legal shield for ICE Watch. Activists tracking and recording agents had been getting pulled over; Menendez held on Fourth Amendment grounds that the following alone can’t justify the stop. That is the civil-liberties counterweight to DHS’s “recording/following sure sounds like obstruction” posture.
  • Then the Eighth Circuit stayed it — and the reasoning is the story. “Overly broad” and “impermissibly vague” is the appellate template for dissolving on-the-ground restraints on federal enforcement. The district court protects protesters; the circuit court lifts the protection within days. Speed of the stay vs. the harm it was preventing is the tension.
  • Distinguish the two Menendez rulings cleanly. Same judge, two very different cases: THIS one (Tincher, protester/observer civil liberties, granted in part Jan 16) versus State of Minnesota v. Noem (anti-commandeering halt-bid, denied ~Jan 31–Feb 2). One is a partial win for civil liberties that got stayed; the other is a federalism loss. Conflating them misstates the record.
  • The “Covered Federal Agents” carve-out is a tell about scope anxiety. The court deliberately excluded routine operations and limited the order to Metro Surge enforcement and protest response — a narrowing the Eighth Circuit still found too broad. The drafting shows a district judge trying to make the injunction stay-proof, and failing.

Entities Mentioned

Concepts Mentioned

  • First Amendment — speech, press, assembly, and retaliation claims at the core of the injunction
  • Fourth Amendment — unlawful seizure / excessive force; the basis for the “safely following” holding
  • Sanctuary Infrastructure — judicial protection for the protest/observation apparatus around ICE
  • Enforcement Theater — pepper spray and retaliatory stops as deterrence rather than law enforcement
  • Rule of Law — courts policing the limits of federal enforcement conduct

Quotes

“Covered Federal Agents are hereby enjoined from: a. Retaliating against persons who are engaging in peaceful and unobstructive protest activity, including observing the activities of Operation Metro Surge.” — Order, Jan 16, 2026 (ECF 85, ¶3)

“Arresting or detaining persons who are engaging in peaceful and unobstructive protest activity … absent a showing of probable cause or reasonable suspicion that the person has committed a crime or is obstructing or interfering with the activities of Covered Federal Officers.” — Order, Jan 16, 2026 (ECF 85, ¶3.b)

“Using pepper-spray or similar nonlethal munitions and crowd dispersal tools against persons who are engaging in peaceful and unobstructive protest activity … in retaliation for their protected conduct.” — Order, Jan 16, 2026 (ECF 85, ¶3.c)

“The act of safely following Covered Federal Agents at an appropriate distance does not, by itself, create reasonable suspicion to justify a vehicle stop.” — Order, Jan 16, 2026 (ECF 85, ¶3.d)

“This Order shall remain in effect until Operation Metro Surge concludes or the conditions change such that it is no longer necessary.” — Order, Jan 16, 2026 (ECF 85, ¶5)

“peacefully and safely following immigration officers performing their duties in public, without more, does not provide a lawful basis for an investigative traffic stop under the Fourth Amendment.” — Order, Jan 16, 2026 (ECF 85, body)

Notes

Distinguish clearly from State of Minnesota v. Noem (No. 0:26-cv-00190, the anti-commandeering halt-bid that Judge Menendez DENIED ~Jan 31–Feb 2, 2026). This Tincher case is the protester/observer civil-liberties injunction — a partial grant — not the statewide halt request. Same judge, opposite outcomes, different legal questions.

CAUTION on stay dates: exact dates of the Eighth Circuit’s administrative stay (~Jan 21) and longer/indefinite stay (~Jan 26–27) vary across outlets. Present as a two-step sequence and verify against the appellate docket before printing any hard date. Secondary sources: TIME (https://time.com/7347110/ice-minneapolis-judge-arrests/); Colorado Politics/AP (https://www.coloradopolitics.com/2026/01/27/appeals-court-indefinitely-halts-judges-limits-on-ice-tactics-in-minnesota/).

Date note: the wiki already holds a secondary TIME-based source page (“Judge Imposes Sweeping Restrictions…”) for this same ruling, dated Jan 17 (the TIME article’s publish date). This page is the primary court document, dated Jan 16, 2026 (the order’s filing date). The order itself is the authoritative date.

Provenance note: the 83-page ECF 85 was fetched from CourtListener and text-extracted locally (WebFetch could not decode the compressed PDF). All quotes above are verbatim from the extracted text; see the raw clip.

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