Revived state bill to ban immigration arrests at courthouse raises questions

Can California ban immigration arrests at its courthouses? The question has come up repeatedly over the past two years of the Trump administration, but the answer could hinge in part on the interpretation of centuries-old legal doctrines.

The Assembly Judiciary Committee will take up the question on Tuesday when it votes on AB 668, which would ban civil arrests at courthouses. When she introduced the bill last month, Assemblywoman Lorena Gonzalez, D-San Diego, argued immigration arrests at courthouses intimidate crime victims and witnesses, impeding justice.

"When people don't feel safe showing up to court to act as a witness, pay a fine, or file papers because they may be subjected to civil arrest -- the system is broken," Gonzalez said in a news release.

The bill contains a provision that would allow the state attorney general to file a civil complaint against federal law enforcement if they violate the law. If AB 668 passed, it would almost certainly be challenged by the Trump administration. California has won past court battles with the administration by citing the 10th Amendment's anti-commandeering doctrine.

In July, U.S. District Judge John A. Mendez of Sacramento granted California's motion to dismiss a challenge to a state law barring most local law enforcement cooperation with federal Immigration and Customs Enforcement.

Mendez found it was beyond the federal government's power to compel local governments to help them. The case is on appeal. U.S. v. California, 18-16496 (9th Cir., filed Aug. 9,. 2018).

But AB 668 appears to go a step further, putting the state in the position of actively impeding federal activity. The bill's text cites United States v. Grace (1983) 461 U.S. 171, 178 to support the idea states can adopt regulations to ensure "the unhindered and untrammeled functioning of our courts. The case also states courts are not a "'public forum' of all persons except those who have legitimate business on the premises."

Gov. Jerry Brown vetoed a similar bill last year. In his veto message of SB 349, he warned: "I support the underlying intent of this measure, but I am concerned that it may have unintended consequences."

That bill was introduced by Sen. Ricardo Lara, who won election in November to become state insurance commissioner. He reintroduced the idea in the current session as SB 31 just before resigning from office.

"Are they expecting a judicial officer of the state to arrest an ICE agent?" asked Michael Maharrey, communications director for the conservative Tenth Amendment Center, in a December article criticizing SB 31. "When push comes to shove, will California agents try to physically prevent federal agents from doing what they intend to do?"

Both SB 349 and AB 668 are sponsored by the California Applicants' Attorneys Association and the Coalition for Humane Immigrant Rights of Los Angeles.

"We did seek input from some constitutional scholars," said Jason M. Marcus, who chairs the Applicant Attorney's legislative committee, speaking in reference to AB 349. "We got an opinion that gave us a strong legal footing to stand on with respect to potential challenges."

Some of this legal case drew on ideas from Christopher Lasch, a professor at the University of Denver's Sturm College of Law, who cites works on both American and English common law stating the principle that someone should not be detained or arrested while serving as a witness.

Lasch said the idea that people are protected while conducting courthouse business is "well entrenched" and something he said federal courts are not likely to undermine.

"The case law concerning the privilege from arrest is recognized alike by federal and state court," Lasch said. "There has not been any suggestion that federal supremacy is sufficiently important to eliminate this privilege from arrest."

Brown's veto also cited a provision in SB 54 that calls on the attorney general to develop policies to see how far the state could go in withholding assistance to immigration agents. That process is ongoing.

"We absolutely think that's great policy, but what we do know is that when there is a statute in place that is very solid for folks to follow, it closes some of the loopholes," said Christopher Sanchez, a policy advocate with CHIRLA.