Prosecuting Florida’s Migrant Flights Would Face Legal Hurdles

When a private plane chartered by the government of Florida dropped off bewildered Latin American migrants recently on a pair of flights from Texas to California, Gov. Gavin Newsom described it as a possible “kidnapping” and called for an investigation.

There was a precedent: A Texas sheriff this week announced he was recommending criminal charges in connection with two similar flights last year, also organized by the state of Florida, that carried 49 Venezuelan migrants from Texas to Martha’s Vineyard and left it up to stunned local officials to figure out what to do with them.

But holding anyone civilly or criminally accountable for the flights may prove challenging, legal analysts said, and would most likely turn on whether the migrants were misled when they boarded the planes.

“I suspect that prosecuting this is going to be a stretch,” said Jon Taylor, a political science professor at the University of Texas at San Antonio who is familiar with local criminal laws. “It may be difficult to get a conviction.”

State officials said the migrants who arrived in Sacramento on Friday and Monday had paperwork indicating that their flights were “administered by the Florida Division of Emergency Management” and its Florida-based contractor, Vertol Systems.

Mr. Newsom, a Democrat, was clearly laying the blame on his Republican counterpart in Florida, Gov. Ron DeSantis, who has long complained that Democratic border policies have left Florida to deal with a surge in immigration that has taxed schools and other public infrastructure in his state.

“You small, pathetic man,” Mr. Newsom wrote on Twitter, addressing Mr. DeSantis. “This isn’t Martha’s Vineyard. Kidnapping charges?”

Florida officials on Tuesday confirmed that the flights were carried out under the state’s $12 million migrant relocation program, but insisted that they were “voluntary” and that organizers had obtained both verbal and written permission from migrants who they said clearly wanted to go to California.

Any civil or criminal liability would arise if it emerged that the consent was not fully informed, several legal analysts said, as appeared to be the case with some of those who were flown to Massachusetts in 2022. Some of those men and women said that they had been falsely told that jobs were waiting for them and that they had not fully understood the waivers they had signed.

But there would be defenses: The employees hired to recruit migrants in Texas to board the flights could say they had been told they were merely picking up volunteers who wanted a trip to another state, Mr. Taylor said.

And even if it were established that the migrants were misled by people on the ground, he said, Mr. DeSantis or those in his inner circle could claim that they had not instructed their employees or contractors to mislead or coerce anyone.

“It’s the idea of clean hands. They are not directly responsible,” Mr. Taylor said. “It’s plausible deniability.”

Texas investigators examining the Martha’s Vineyard flights initially considered a wide range of possible crimes, but after a painstaking investigation, the Bexar County Sheriff’s Office recommended prosecutions for unlawful restraint, a misdemeanor in most cases and a felony when it involves children.

The persons who recruited the migrants could face up to two years in jail because several minors were part of the group that was taken to Massachusetts, investigators said.

“That makes this case rather uncommon, primarily because it’s a stretch to call it human trafficking,” Mr. Taylor said.

Much of the attention in the Texas case has centered on a former Army counterintelligence officer, Perla Huerta, who met several migrants outside a shelter in San Antonio, handed them gift cards from McDonald’s and a brochure whose cover proclaimed, “Massachusetts Welcomes You.” The migrants, most of whom were escaping extreme poverty and despair in their home country, signed waivers agreeing to the flights and boarded two planes operated by Vertol Systems to Martha’s Vineyard, a left-leaning oasis for the wealthy.

Lawyers who represent Ms. Huerta in related civil lawsuits did not respond to a request for comment. In legal filings, they have said the migrants only complained about their trips because they disagree with Mr. DeSantis’s politics. They were receptive to the free trips, the filings said, because they were hungry, exhausted and had few other options for help by the time they were approached.

The sheriff in San Antonio did not recommend more serious charges, such as kidnapping, and did not expand his net to include top political figures in Florida, such as Mr. DeSantis. Legal analysts said this was probably because local law enforcement officials felt their role was limited in scope. From the beginning, Sheriff Javier Salazar has emphasized that he was looking at the people who may have broken the law in his own jurisdiction.

There has been no outcry from Texas’ governor, Greg Abbott, of the kind heard from Mr. Newsom in California: Mr. Abbott has undertaken his own migrant relocation program, sending large numbers of migrants on buses to Democratic-led cities including New York, Washington and Chicago.

The issue in California might be one of jurisdiction, since the flights did not originate there, but the state could assert its authority given that at least part of the crime took place there — again, if it can be proved that the migrants were taken there against their will, said Gerardo Menchaca, an immigration lawyer in San Antonio who has frequently handled criminal cases.

Being lured somewhere with false pretenses can “come close to kidnapping,” Mr. Menchaca said. And because the migrants were taken from one state to another, both the state and federal governments would have the right to open an investigation, he said. “It doesn’t have to be where the crime started, as long as it ended there,” he added.

Rob Bonta, California’s Democratic attorney general, said investigators were examining whether any laws had been broken.

But a full investigation takes time, as evidenced by the slow progress in San Antonio, where it took the sheriff’s department nearly nine months to bring its findings to the district attorney, Joe Gonzales.

As a beginning, Sheriff Salazar has certified that all of the people flown to Martha’s Vineyard were victims of a crime, a finding that allows them to apply for a special immigration visa for which they would not otherwise qualify.

Now, the district attorney must review the results of the investigation and decide whether to bring the matter to a grand jury, a process that could take weeks, if not longer.

“The process of determining whether enough evidence exists to charge anyone with a crime and convince a jury of Bexar County citizens ‘beyond a reasonable doubt’ that a crime has been committed may be lengthy and labor-intensive under the best of circumstances,” Mr. Gonzales said in a statement.

Nicholas Nehamas contributed reporting from Miami.