CHARLOTTE, N.C. — A judge declined to rule on Wednesday whether federal agents must preserve text messages discussing the arrest of two protesters at a U.S. Department of Homeland Security office in Charlotte.

Magistrate Judge David Keesler gave Heather Morrow and William Stanley unsecured $25,000 bonds in the meantime. But he said he would wait and learn more before deciding whether Immigration and Customs Enforcement agents had to hand over text messages discussing the arrests of the two last month.

He did not set a date for that decision.

Morrow’s attorney, Rob Heroy, first requested that the records be preserved last week.

Morrow and Stanley protested outside the DHS office on Tyvola Centre Drive on Nov. 16, when U.S. Border Patrol carried out an operation called “Charlotte’s Web” in which federal agents, starting Nov. 15, spent five days arresting Hispanic people in public places across Charlotte such as shopping center parking lots, a church lawn and a country club.

Heroy worried in a Dec. 8 motion that agents coordinated to come up with a “remarkably consistent” but “false” story of what happened at the DHS office, which seemed to be disproven later by a bystander’s cellphone video.

“The Defense remains concerned that agents will delete or fail to preserve text messages, if they have not done so already,” the motion said.

On Wednesday, Heroy said he still had “significant concerns,” and that he did not believe a normal discovery process would be adequate. Federal prosecutors had not responded in writing to Heroy’s motion as of Wednesday morning.

Asked about the discovery request in court, Assistant U.S. Attorney Kenneth Smith said that his office would prefer to not do things “out of the ordinary.”

ICE protester case downgraded

Federal prosecutors first charged Morrow with felony assault, resist or impede a federal officer on Nov. 17. ICE claimed that she grabbed an agent’s shoulders and tried to jump on his back.

The charge lasted a week.

After Morrow released a bystander’s video that did not show her jumping on an agent’s shoulders — but did appear to show an agent yelling, “Come here, motherf***er!” before tussling with someone in the parking lot — prosecutors dismissed her felony charge.

She now faces three petty offenses and a charge of misdemeanor assault, resist, oppose, impede, intimidate and interfere with persons performing official duties.

Stanley made his first appearance on Wednesday. He faces the same charges.

He is a University of North Carolina-Greensboro student on sabbatical, defense attorney Claire Rauscher told the court. She said he lives with his parents and has no criminal record.

Rauscher and other defense attorneys on Wednesday described their clients’ cases as unusual.

“We’ll keep fighting in uncharted territory,” Xavier T. de Janon, another attorney representing Morrow, said after the hearing.

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