Threats from California Gov. Gavin Newsom and Attorney General Rob Bonta to prosecute Florida Gov. Ron Desantis for kidnapping after his administration sent flights of Latin American migrants to Sacramento are political posturing, not the basis for a criminal case, legal experts said Tuesday.

“There’s an irony to the fact that these criminal justice progressives, who got elected on a criminal justice reform agenda, are now trying to use criminal law in pretty expansive and creative ways to forward their political agenda,” said Andrea Roth, a professor at UC Berkeley School of Law. “And this feels like a very expansive reading of criminal law.”

Sixteen migrants from Venezuela and Colombia were taken from Texas to New Mexico and then flown by private chartered plane to Sacramento on Friday. An additional 20 migrants were flown to Sacramento Monday morning on the same aircraft.

Newsom and Bonta, both Democrats, have placed the blame on DeSantis and his administration’s multimillion-dollar program for relocating migrants. The DeSantis Administration on Tuesday afternoon took responsibility for the flights, saying the migrants went voluntarily.

“From left-leaning mayors in El Paso, Texas, and Denver, Colorado, the relocation of those illegally crossing the United States border is not new,” Amelia Johnson, a spokesperson for the Florida Division of Emergency Management, said in a statement. “But suddenly, when Florida sends illegal aliens to a sanctuary city, it’s false imprisonment and kidnapping.”

Gavin Newsom calls out Florida’s Ron DeSantis

DeSantis is a principal target for Newsom’s broadsides against red state policies. In a Monday tweet to DeSantis, he called the Florida governor and Republican presidential hopeful a “small, pathetic man” and cited California’s kidnapping laws.

“This isn’t Martha’s Vineyard,” Newsom said in the tweet, referencing a flight of Venezuelan asylum seekers to the wealthy Massachusetts vacation destination that was arranged by DeSantis last year. “Kidnapping charges? Read the following.”

The governor posted a screenshot of a California penal code section that states anyone who abducts a person “by force or fraud” and brings or sends them to California can be found guilty of kidnapping.

It was the latest case of California’s governor reflexively taking to Twitter to command national attention through inflammatory rhetoric before seeing all of the facts or developing a fully-fledged policy. Other recent examples include declaring that California would cut ties with Walgreens after the pharmacy company said it wouldn’t distribute abortion pills to some states and calling for a windfall profits tax on oil companies that he said were “fleecing Californians.”

Despite those strongly worded statements, Newsom walked back both of those points.

In the case of Walgreens, the state is legally bound under federal law to continue doing business with Walgreens through Medi-Cal, which provides health coverage to roughly 15 million Californians with low incomes and disabilities. Newsom watered down his windfall tax on oil companies after failing to get adequate buy-in from legislators. Instead, he settled for a bill that will increase transparency and oversight of the industry.

Following the Walgreens incident, a Newsom spokesperson conceded, “Tweeting is not policy.”

California explores criminal charges for migrant flight

Bonta said his office is weighing its options for both criminal and civil charges against those responsible for the migrant flights. Possible charges could include false imprisonment, kidnapping or violations of California’s unfair competition laws, he said.

Bonta would not go into detail about a possible legal argument for kidnapping, but he said the “element of distress is important.”

Based on interviews with the first group of migrants who arrived in Sacramento over the weekend, Bonta said the migrants were reportedly promised jobs, housing and clothing if they were willing to relocate.

While such false promises may be unethical, Roth of UC Berkeley said it’s not grounds for a criminal kidnapping case.

To build a sufficient criminal kidnapping case on the merits of false promises and misrepresentations, Roth said the case must involve a child under the age of 14 who was brought to California for the purposes of sexual abuse.

“I understand their concern that they’re using human beings as pawns, but in terms of a criminal kidnapping case, inducement by fraud, it’s just not there,” Roth said.

Keith J. Staten, a criminal defense attorney and professor at Sacramento State, agrees.

“I think the governor was just angry and I know he would like to push for a kidnapping (charge), but I think it would be very difficult to ferret out,” he said.

One of the issues with any case would be figuring out who to charge, Staten said.

“Is it the charter flight company? The employees on the flight? The government that paid the money to do it? If you do it the latter way, it would have to be a conspiracy, and I believe that would be quite complicated,” he said.

Bonta said there was “no clear timeline” on when his office might announce charges, saying they are still in the early parts of an investigation that will involve extensive interviews, tracking down leads and sifting through legal analysis.

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