Jose Ortega and Danielle Davila are once again facing felony charges, this time from the federal grand jury, for stepping in between unidentified ICE agents and Denis Guillen-Solis during a July 8 chase that ended in Ortega and Davila’s office building. Video of the event made national news. 

The defendants maintain their innocence, and their attorneys said they were deescalating the situation between the agents and the gardener.

According to the defendant’s attorneys, speaking after their Aug. 19 arraignment, federal prosecutors approached the defendants with a misdemeanor plea deal before they filed an indictment. The defendants declined. Federal prosecutors charged the defendants July 25 with two felony counts each, of assaulting a federal officer and conspiracy to prevent a federal officer from discharging his duties. Prosecutors dropped the felony counts in individual motions on Aug. 14 and 15, and refiled under misdemeanor assault charges against each defendant. Ortega and Davila pleaded not guilty to the misdemeanor charge on Aug. 19.

On Aug. 27, the U.S. Attorney’s Office for the Central District of California announced new felony charges against the workers, for one count of assaulting, resisting, and impeding a federal officer. Assistant United States Attorney Cory Burleson, has been named as the prosecutor.

The indictment is not yet available on the federal case access system.

Oliver Cleary, Davila’s attorney, wrote by email on Friday, Aug. 29, that he had not yet seen the indictment.

“This is an about-face for the government who only dismissed the case one week ago and then went to grand jury on the same charges the next week.  There seems to be a disconnect between line-prosecutors who viewed this case differently than their boss (Acting United States Attorney) Bill Essayli’s more  aggressive approach. I’d like to know why they reversed course because, as it looks now, it appears to be nothing more than retaliation for the accused not having accepted misdemeanor offers. Ms. Davila looks forward to her day in court,” Cleary wrote.

The Aug. 27 announcement did not include any new statements about the arrest. 

Guillen-Solis, the gardener chased by ICE, self-deported after being held at the Adelanto ICE Detention Center, according to attorney Russell Jauregui, who interviewed Guillen-Solis at the facility.

On Aug. 19, before the grand jury indictment was announced, Inland Empire Law Weekly asked both the Department of Justice and the Department of Homeland Security for the names of the ICE officers, the legal theory to support the officers’ entry into the Ontario Advance Surgery Center, and the current status of Guillen-Solis. The request to the DOJ also asked why the charges were decreased from felony to misdemeanor counts, and if the DOJ is establishing that individuals who resist improper entry may be charged with assault. 

Neither department answered the questions.

Ciaran McEvoy, public affairs officer for the U.S. Attorney’s Office, Central District of California, said the office had no comment on charging decisions or the legality of the ICE officers entering the surgery center. He wrote that there are multiple exceptions to the Fourth Amendment’s prohibition of unreasonable searches and seizures. One of the exceptions, he wrote, was “hot pursuit.” 

The hot pursuit exception was discussed in the 2021 Supreme Court case Lange v. California. In that ruling, the Supreme Court found that officers cannot pursue misdemeanor suspects into homes without a warrant.

“The common law in place at the Constitution’s founding similarly does not support a categorical rule allowing warrantless home entry whenever a misdemeanant flees. Like the Court’s modern precedents, the common law afforded the home strong protection from government intrusion, and it generally required a warrant before a government official could enter the home,” the syllabus said.

A Congressional Research Service report on the Lange ruling said that the pursuit of a fleeing misdemeanor suspect does not immediately justify warrantless entry. Improper entry to the United States is a misdemeanor, and unlawful presence is not a crime.

DHS sent an unsigned response to check a July 25 press release, and directed additional questions to the Department of Justice. That press release included a quote from Tricia McLaughlin, assistant DHS secretary. 

“Anyone who actively obstructs or assaults law enforcement, including U.S. citizens, will face consequences which include arrest,” McLaughlin said, according to the release. 

Essayli issued a similar statement on July 25, when the original felony charges were filed.

“It doesn’t matter who you are or where you work, if you assault our agents or otherwise interfere with our operations, you will be arrested and charged with a federal crime,” Essayli said, according to that release.

The trial is scheduled for Oct. 6.

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