Federal agents fight release of video in Grainger County slaughterhouse raid

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Photo of a pork processing plant, provided by the U.S. Government Accountability Office

This article is written by Jamie Satterfield of Tennessee Lookout

Federal agents accused of targeting, mocking and, in some instances, brutalizing Latino workers at a Grainger County slaughterhouse claim their lives will be endangered by the public release of video from the controversial raid, court records show.

Although the video is currently under seal, an investigation by the Tennessee Lookout reveals the footage appears to show a U.S. Department of Homeland Security agent putting his boot on the neck of a Latino worker who was facedown on the floor with his hands behind his back and keeping it there for 24 seconds.

That same agent — U.S. Department of Homeland Security Agent John Witsell — punched another Latino worker in the head without provocation in the same April 2018 raid at the Southeastern Provision slaughterhouse in Grainger County, court records show.

In both instances, Witsell’s fellow federal agents agreed in deposition testimony reviewed by the Tennessee Lookout that his actions constituted excessive force.

Attorneys for Witsell and dozens of other agents involved in the raid are asking a federal judge to bar the public release of the video footage and any mention in the court record of what the video depicts.

“Filing the video and (workers’ attorneys’) inflammatory remarks in the public record has the potential to prejudice potential jurors, provoke retaliation and place the agents … at personal risk,” attorneys for the accused agents wrote in a motion filed last week in U.S. District Court.

“Publicizing the video and (workers’ attorneys’) disputed and inflammatory description of it has the potential to subject the individually-named officers to violence or threats of violence in an already tense environment,” the motion continues. “The duties performed by DHS agents are dangerous enough without being subjected to provocative statements that, intentionally or unintentionally, invite condemnation and potential retaliation.”

Agents insisted under oath before now-retired U.S. Magistrate Judge Bruce Guyton they only intended to seek records supporting tax evasion charges against the slaughterhouse owner in the April 2018 raid. Instead, court records show, the agents for months had been planning what turned out to be the largest workplace immigration raid in Tennessee in more than a decade.

“Filing the video and (workers’ attorneys’) inflammatory remarks in the public record has the potential to prejudice potential jurors, provoke retaliation and place the agents … at personal risk,” attorneys for the accused agents wrote in a motion filed last week in U.S. District Court.

A half dozen Latino workers have since filed suit in U.S. District Court against the agents and the U.S. government, alleging a plot to violate their civil rights as part of then-President Donald Trump’s campaign promise to get tough on illegal immigration.</p>

U.S. District Judge Travis McDonough has twice now in his rulings questioned the credibility and motives of the dozens of heavily-armed agents who sealed off roadways leading to the slaughterhouse, stormed inside the plant with guns drawn and immediately began targeting Latino workers — while allowing white workers and plant management to roam free.

McDonough ruled last year ample evidence exists to show federal agents concealed from Guyton the true purpose and scope of the raid, targeted Latino workers inside the plant solely based on their ethnicity, hurled race-based insults at them and used excessive force against at least two workers.

The judge ruled earlier this year the federal government intentionally withheld from Guyton and the workers the identities and involvement of several IRS agents in the raid in a ploy to shield those agents from the ongoing litigation.

‘Boot on the worker’s neck’

The attorneys who filed suit on behalf of a handful of the plant’s Latino workers are now seeking to certify the litigation as a class-action lawsuit, which would allow all slaughterhouse employees impacted by the raid to qualify for damages should a jury rule in their favor.

Motions seeking class-action certification and related exhibits, including video footage, are currently under seal, but U.S. Magistrate Judge Christopher Steger signaled in a ruling in late June he saw no basis for the documents to be hidden from the public. He gave attorneys for the agents two weeks to challenge that finding. Late last week, the agents’ attorneys responded with a motion specifically asking Steger to keep from the public the video footage included as an exhibit to the class-action certification documents.

The motion on behalf of the agents offered a clue about what that footage shows when arguing the workers intend to “analogize” what is shown on the video “to other national events that sparked destructive protests and physical violence against law enforcement.”

The Tennessee Lookout conducted an exhaustive review of the more than 600 documents and exhibits already public in the case and discovered the video the agents seek to keep under wraps captures conduct analogous to the police killing in Minneapolis of George Floyd in May 2020.

In that case, bystander footage showed Minneapolis police officer Derek Chauvin kneeling on the neck of Floyd, a Black man who was facedown on the ground with his hands behind his back and complaining he could not breathe. Chauvin has since been convicted of killing Floyd through that action. Release of that video spurred protests across the nation and helped fuel the Black Lives Matter movement.

Deposition testimony from U.S. Immigration and Customs Enforcement Agent Francisco Ayala discovered by the Tennessee Lookout in the court record confirms the video footage the agents want to keep hidden appears to show Agent Witsell engaging in conduct similar to that of Chauvin.

“And in this frame, (Witsell) has his boot on the worker’s neck, correct?” Southern Poverty Law Center attorney Meredith Stewart asked Ayala in the deposition.

Ayala responded, “It looks like that.”

“During the period of time when (Witsell) had his boot on the worker’s neck, the worker’s hands were behind his back, correct?” Stewart asked.

“Yes,” Ayala responded.

“And the worker was facedown on the ground, correct?” Stewart continued.

Ayala answered, “Yes.”

“So the … agent puts his boot on the worker’s neck at timestamp 9:09:35,” Stewart said. “The … agent removes his boot from the worker’s neck at timestamp 9:09:59, correct?”

Ayala answered, “Yes.”

“During this period of time, did you see a reason why the … agent needed to have his boot on the neck of the worker?” Stewart asked.

Ayala answered, “I didn’t even remember that. Looking at the video, there was no reason.”

“In your opinion, was it reasonable for the agent to place his boot on the neck of the worker?” Stewart asked.

Ayala replied, “No.”

“In your opinion, did the agent putting his boot on the neck of the worker constitute excessive force?” Stewart continued.

Ayala answered, “Yes.”

Judge: Agent barred from testifying

Ayala isn’t the only agent who, under examination by either workers’ attorneys or officials with the Office of Professional Responsibility for Immigration and Customs Enforcement, conceded Witsell employed excessive force during the raid.

Agent Frank Downey confirmed in an interview with OPR he saw Witsell hit another worker in the head without apparent provocation and, in a deposition, deemed Witsell’s use of force against that worker as excessive. Agent Bennett Strickland also confirmed the head strike in an OPR interview and called it “somewhat excessive.”

Witsell, though, isn’t saying anything. Records show he has twice refused to appear for a deposition in the case, citing an undisclosed “medical condition” he says prevents him from both sitting for a deposition and responding to written questions about his behavior during the raid.

The Justice Department, which is footing the bill to defend all the other agents named in the lawsuit, has legally parted ways with Witsell. He is now represented by private attorney Mary Ann Stackhouse, a former deputy attorney for the Knox County Law Department.

Magistrate Judge Steger says in a recent ruling that he has reviewed medical records Stackhouse provided him under seal.

“Based on the information in such records, the court finds that Witsell does have a legitimate health problem that prevents his participation in (the) discovery (and deposition process) in this lawsuit at the present time,” Steger wrote.

But Steger said in his ruling Witsell’s current “health problem is not relevant to the claims and defenses in this lawsuit,” and “there is no question that Witsell possesses information that is relevant to the claims and defenses in this case, and that (workers) will be prejudiced by Witsell’s inability to provide answers to the questions posed by (workers’) counsel in discovery.”

In a rare move, Steger is now recommending that McDonough bar Witsell from testifying in his own defense should the lawsuit make its way to a jury, bar any defense witnesses from using information provided by Witsell on behalf of his fellow agents and give jurors an “adverse-inference instruction” that Witsell’s failure to appear for a deposition and answer questions could be considered against him in their deliberations.

“Here, the court finds that Witsell has failed to appear for his deposition and has further failed to fully respond to interrogatories and requests for production served upon him,” Steger wrote. “While he has presented a legitimate reason for his failure to cooperate in discovery, the situation, nevertheless, has the potential to prejudice (workers’) prosecution of their claims.”

It is not clear from court records whether Witsell remains employed by the U.S. Department of Homeland Security or whether any action has been taken against him in the excessive force claims investigated by OPR.

The workers’ case is current set for trial in February. Steger and, ultimately, McDonough, must first decide whether to certify the litigation as a class-action lawsuit and to issue rulings in various pre-trial motions before that trial date is confirmed.

Slaughterhouse owner James Brantley was not arrested the day of the raid nor were the two white supervisors, since identified in court records as brothers Carl Kinser and Jason Kinser. Brantley eventually struck a deal in 2019 to plead guilty to tax charges, admitting he dodged paying $2.5 million in payroll taxes. He was sentenced to 18 months, which he served at a work camp in Alabama. He’s been free since January 2021.

The Kinser brothers also struck plea deals in 2019 with the U.S. Attorney’s office, confessing to charges of harboring illegal immigrants. They were ordered to spend three years under the supervision of the U.S. Probation Office, but U.S. Magistrate Judge Clifton Corker wound up freeing them from that supervision just nine months after it started.

The Latino workers arrested on the day of the raid were held for hours at the armory without any charges pending against them, without any notice of their whereabouts to their families and without legal representation, records show.

Federal agents’ motion to seal video of immigration raid by Anita Wadhwani on Scribd

Tennessee Lookout is part of States Newsroom, a network of news bureaus supported by grants and a coalition of donors as a 501c(3) public charity. Tennessee Lookout maintains editorial independence. Contact Editor Holly McCall for questions: info@tennesseelookout.com. Follow Tennessee Lookout on Facebook and Twitter.

Published on July 20, 2022.