A federal appeals court ruled Wednesday that New Jersey Democratic Rep. LaMonica McIver is not immune from prosecution over a tense incident that unfolded outside an immigration detention center last year. 

The three-judge panel declined to toss out assault charges against her, even as McIver argued her arrest interfered with her legislative duties.

In a statement, McIver said the court “got it wrong” and that she is “exploring every possible option.” 

“To protect the people, their elected representatives must be authorized to conduct oversight of the executive branch without fear of retaliation,” she said.

McIver was indicted on three counts stemming from a May 2025 visit she and other lawmakers made to Delaney Hall in Newark, which houses people detained by Immigration and Customs Enforcement. Prosecutors say McIver physically clashed with law enforcement officials. 

A district court had ruled the case could go ahead, and on Wednesday the appeals panel largely agreed.  

“We have considered the ‘nature’ of the charged conduct and concluded it is unambiguously non-legislative,” Judge Cindy Chung of the U.S. Court of Appeals for the 3rd Circuit wrote in the 2-1 opinion. 

McIver’s attorney, Paul Fishman, argued in June that ICE officials attempted to obstruct congressional oversight in the first place, delaying the lawmakers’ attempted inspection and then later “luring” them outside to arrest Newark Mayor Ras Baraka, who accompanied them to the facility for the visit. 

The Constitution’s “speech or debate” clause should apply and shield her actions as a lawmaker, McIver has maintained. 

Chung and Judge Stephanos Bibas rejected that argument for two of the three charges against her, writing that her alleged actions outside of the building were not legislative work. A third count was remanded back to the lower court for further consideration. 

In a partial dissent, Judge Thomas Ambro agreed that “members of Congress are not above the law” and that “grabbing” a law enforcement agent in an effort to stop the mayor’s arrest would not count as a protected legislative duty. 

But the judge differed from his colleagues on McIver’s alleged contact with a different ICE officer. In Ambro’s view, that second count deserves more scrutiny and “additional fact-finding to determine whether she shoved him gratuitously, intending to inflict harm, or merely made incidental contact … in an effort to re-enter the facility that federal law authorizes her to inspect.”

McIver also urged the court to toss the charges for another reason, insisting they are politically motivated and that she is being targeted for “selective and vindictive prosecution” by the Trump administration.

While the appeals panel majority said it did not have jurisdiction on that question, Ambro disagreed.  

“I would allow her discovery into the truth of the matter — not only for her own sake but to safeguard the independence of our legislative bodies,” Ambro wrote. 

Ambro acknowledged a comparison of McIver’s indictment to those of supporters of President Donald Trump who assaulted police officers during the Jan. 6, 2021, attack on the Capitol. Those charges were ultimately dismissed by the Justice Department at the request of Trump, which Ambro said can point to her claim of being selectively targeted. 

“Potentially retaliatory prosecutions of sitting Members of Congress are exceedingly rare. But when they do occur, the constitutional foundation of our government is at risk,” he wrote. 

McIver announced in May that she is pregnant with her second child. She’s also spoken publicly about dealing with the legal battle, describing it as lonely and expensive. 

“I will not fold to this administration,” McIver said in her Wednesday statement. “The administration will not stop me from doing my job or standing for what is right. This is not over.”