Righteous 39 Defense Seeks Dismissal of FACE Act Charges Over Cities Church Protest
At a Nov. 3 hearing in St. Paul, defense attorneys asked a federal magistrate judge to dismiss FACE Act charges against protesters who demonstrated at Cities Church, where a pastor was serving as acting director of ICE’s local field office. Attorney Jordan Kushner, representing Nekima Levy Armstrong, argued that people who disrupted LGBTQ-affirming churches elsewhere were never charged. Others cited Trump’s pardons of anti-abortion activists and his post calling the protesters troublemakers. Justice Department attorneys argued the law is content neutral and said a congregant was injured leaving the church, a claim defendants dispute. The charges are allegations. Hearings continue Nov. 9 and 10.
Defense attorneys for the defendants charged over the Jan. 18 protest at Cities Church in St. Paul argued Nov. 3 that the cases should be thrown out, saying the Freedom of Access to Clinic Entrances (FACE) Act prosecutions were politically motivated and that the indictment fell short.
Joshua Zuckerman, a trial attorney for the U.S. Department of Justice’s Civil Rights Division, argued that the FACE Act charges are based on where the protest happened, not what the protesters said.
“It is the location of the speech, not the content of the speech,” Zuckerman said. “The FACE Act is content neutral.”
He argued the law would apply the same way if protesters had stormed an abortion clinic with the same intent. Zuckerman also argued that because the protest was directed at David Easterwood, a Cities Church pastor who was serving as acting director of ICE’s local field office, “that would trigger a sentencing enhancement.”
Jordan Kushner, who represents Nekima Levy Armstrong, pointed to cases across the country in which right-wing activists disrupted church services and were not charged under the FACE Act. In November 2025, Valentina Gomez interrupted a service at Faith United Church of Christ in New Braunfels, Texas, recording herself confronting the open and affirming congregation and posting the footage online.
“We’re protesting the government, because as people have pointed out, it’s OK to go and disrupt and mess up a church that supports LGBTQ rights,” Kushner said. “That doesn’t get prosecuted, but if you go and protest against ICE in the church that employs an ICE pastor, then you get charged with two 10-year felonies. That’s how warped this is.”
Kushner argued that the case against the defendants, who call themselves the Righteous 39, amounts to vindictive prosecution.
Steven J. Wright and Frederick Goetz, co-counsel for English teacher Andrew Edwards, made similar arguments.
“It is different in many different ways,” Wright said. “It is so extraordinary there is almost no comparison.”
Wright and Sarah Gad, the attorney for defendant Ian Austin, pointed to President Donald Trump’s pardons of 23 anti-abortion activists convicted of violating the FACE Act. Among them was Bevelyn Beatty Williams, who was convicted in a case in which a health center staff member’s hand was crushed in a clinic door, causing an injury. Wright also cited Lauren Handy, who was convicted in a clinic blockade in which a nurse’s ankle ligament was torn as activists pushed past her.
The defense’s vindictive prosecution claim centers on social media posts made before and after the arrests. Just after midnight on Jan. 20, Trump posted about the protest on Truth Social.
“They are troublemakers who should be thrown in jail, or thrown out of the Country,” Trump wrote.
“I don’t think a single post from the president can establish vindictive prosecution,” Zuckerman said.
Goetz responded that the court should consider Trump’s posts as a whole.
“The investigation was underway, not the prosecution,” Goetz said. “It’s not a vindictive investigation. It’s a vindictive prosecution.”
Robert Lengeling, who represents independent journalist Brixton Hughes, submitted videos uploaded by his client that he said prove protesters did not block congregants from leaving the church. Lengeling said he is considering seeking a Franks hearing, which tests whether warrant applications contained false statements, to challenge how law enforcement characterized his client’s role.
U.S. Magistrate Judge Douglas Micko asked how Hughes’ uploads differ from those posted by protesters at the church.
“It’s how you use it,” Lengeling said.
Micko also asked why the issue was not one for a grand jury. Lengeling answered that the indictment “doesn’t allege he did anything other than being merely present.”
Attorneys for former CNN anchor Don Lemon wrote in a June 3 filing that affidavits supporting rejected search warrants wrongly claimed a female congregant broke her arm while leaving the church.
At Tuesday’s hearing, Robert Keenan, senior counsel in the Justice Department’s Civil Rights Division, argued that the protest led to a woman’s injury.
“The allegation is based on the fact that an adult woman who fled the church, through a side door, slipped and fell,” Keenan said. Prosecutors described the injury as a “bone bruise” or “bone contusion.”
Harmeet Dhillon, the Justice Department’s civil rights chief, made a similar claim to the Los Angeles Times.
“You can’t make elderly women run out a side door that actually had a cone in front of it because it was dangerous to go in and out that door, slip and injure themselves and have to go to the emergency room,” Dhillon said.
The defendants criticized the claim, noting that the woman did not call 911 after the fall. Defendant Monique Cullars-Doty said Cities Church bears some responsibility.
“If you’re responsible and you’re managing a property, then what you would do is that you would have a bucket outside with some salt or some sand, and when someone sees that oh, there’s some ice out, because ice can appear in time, you would throw that down,” Cullars-Doty said.
Levy Armstrong said the Justice Department under Trump has pushed out many experienced prosecutors, leaving some of its least experienced attorneys to argue the government’s case.
“There are so many gaping holes, so much nonsensical information that has come forth, and a lack of integrity on the part of those prosecutors representing the Justice Department,” Levy Armstrong said. “And what we also have to realize, we’re not getting the cream of the crop in terms of those prosecutors. Prosecutors in Minnesota and around the country have literally fled the Department of Justice because of what they were being asked to do, for example, investigating Renee Good’s wife after her killing.”
Hearings continued Thursday. Two more are scheduled for 8:30 a.m. Monday, Nov. 9, and Tuesday, Nov. 10, at the Warren E. Burger Federal Building and U.S. Courthouse, 316 N. Robert St. in St. Paul.
Clint Combs is a freelance journalist and contributing writer for the Minnesota Spokesman-Recorder. He welcomes reader responses at combs0284@gmail.com.