Statewide ban proposed on ICE immigration arrests in and around courthouses

A legal advocacy group on Wednesday proposed a statewide ban on U.S. Immigration and Customs Enforcement arrests in California courthouses.

Legal Aid at Work’s application to the Judicial Council of California is based on a centuries-old common law privilege that was promoted in a 2017 Yale Law Review article as a way to prevent federal arrests in state courthouses.

Supporters include five former State Bar presidents, several law professors and retired judges as well as the California Employment Lawyers Association, Santa Clara County Bar Association and the ACLU of California.

“Unless the Judicial Council adopts the proposed rule of court, the actions of ICE agents are likely to continue to deter non-citizens, and especially undocumented immigrants, from using our courts or appearing as witnesses in civil or criminal proceedings. Because the misuse of California courts by ICE agents to make detentions and arrests is a systemic problem, it should be solved on a statewide basis,” according to the application.

The proposed language states no one may be subjected to arrest if they are inside a courthouse “in connection with any judicial proceeding or other business with the court.”

It also states no person can be subjected to arrest “while the person is going to or coming from a courthouse of this state, or while the person is within the environs of a courthouse of this state, if the person is traveling for the purpose of any judicial proceeding or other business with the court.”

The proposal follows two recent arrests in Fresno County Superior Court. The application cites those arrests as well as approximately 15 other arrests nationwide.

If adopted, the proposed ban would set up a clash between the authority of federal government and the rights of state courts.

Marisa C. Díaz, a staff attorney with the National Origin and Immigrants’ Rights Program at Legal Aid at Work, said the Fresno County arrests “really just highlight why it’s even more important that something like this is adopted.”

“Our state has the power to prevent our courts from being commandeered by the federal government as places to arrest non-citizens,” Díaz said in a prepared statement. “We are just asking our state courts to exercise that power here to safeguard their core function of administering justice for all.”

Andrew R. Arthur, resident fellow on law and politics at the Center for Immigration Studies at Washington, D.C., said courthouse arrests in immigration cases are necessary because of California’s so-called sanctuary state law, which bar local authorities from cooperating with federal immigration agents.

Arresting people in controlled places such as jails is important for the safety of officers and the public, but the sanctuary law limits where federal officers can go, he said.

“It’s appropriate for ICE to attempt to arrest criminal aliens in courthouses because they are controlled situations,” Arthur said. “If ICE isn’t able to make arrests in courthouses, then they have to go to non-secure areas to make those arrests.”

The issue of ICE activity at state courthouses has been brewing. Last year, the Judicial Council sent a memo to all presiding judges and court executive officers in California that advised them on how to handle ICE activity at their courthouses.

The memo followed a letter from state Supreme Court Justice Tani G. Cantil-Sakauye to Attorney General Jeff Sessions and then-Secretary of Homeland Security John F. Kelly that said immigration agents “appear to be stalking undocumented immigrants in our courthouses to make arrests.”

The application references those comments as well as statements Cantil-Sakauye made March 27 on KQED’s Forum radio program.

William N. Hebert, the 2010-11 State Bar president, also referenced the chief justice’s comments in Wednesday’s news release about the proposed rule.

“Today, we join the Chief Justice of the California Supreme Court in calling for an end to the stalking of vulnerable immigrants in our courthouses,” Hebert said.

In Washington state, King County Superior Court has a policy that says no immigration arrests will occur in courtrooms “unless directly ordered by the presiding judicial officer and shall be discouraged in the King County Superior Court courthouses unless the public’s safety is at immediate risk.”

Meanwhile, the New York State Assembly is considering a bill that would enshrine the common law privilege from civil arrest into state statutory law,” according to the application.

An ICE spokesperson defended its arrests of people in the country without permission.

“As with all planned enforcement actions, ICE officers exercise sound judgment when enforcing federal law and make substantial efforts to avoid unnecessarily alarming the public. Consistent with officer and public safety, ICE officers also make every effort to limit the time spent at the planned place of arrest,” according to the ICE statement.

Neither ICE nor state Judicial Council officials have been forthcoming about the number of arrests of immigrants in the country illegally in and around courthouses.