Prison contractor challenges California ban on private prisons

Will a private prison company be allowed to continue operating immigrant detention facilities in California despite a state law banning these facilities?

A case brought recently by the GEO Group Inc., the nation's largest private prison contractor, challenges SB 29. This 2017 law barred any entity from signing a contract to run a private prison in the state after Jan. 1, 2018.

In a response filed last week, GEO argued the state is attempting to regulate local governments as a back-door means of controlling the activities of the federal government and federal contractors. The GEO Group, Inc. v. Newsom, 2:20-cv-00533-TLN-AC (E.D. Cal., filed March 9, 2020).

SB 29 prevents local governments from signing or renewing contracts "with the federal government or any federal agency or a private corporation to detain noncitizens for the purposes of civil immigration custody." The timing of such contracts, however, has meant that any effort to ban private prisons would play out over several years.

GEO operates multiple facilities in California, but the case is concerned with a pair of federal immigration detention facilities in Adelanto and McFarland. GEO claimed the law violates the Supremacy Clause of the U.S. Constitution and the doctrine of intergovernmental immunity by discriminating against the federal government.

Courts have pushed back against California's attempts to limit federal behavior several times since President Donald Trump took office. But the state's motion to dismiss, submitted May 28 by Deputy Attorney General Gabrielle D. Boutin, argued the company is trying to claim intergovernmental immunity protections that should only apply to "a federally owned facility performing a federal function."

"Plaintiff, not the federal government, owns those facilities...It does not allege that the federal government has been injured or that the federal government's operations have been interfered with," the motion states.

The state also claims the complaint is moot because GEO did what it needs to do to acquire permits related to the existing contracts. The complaint relies on a "remote and speculative" belief that it might need new permits under these contracts, Boutin wrote.

GEO took on these claims in a response filed Thursday by Charles J. Cooper of Cooper & Kirk PLLC in Washington, D.C., and Michael B. McClellan with Newmeyer & Dillion LLP in Newport Beach.

GEO has a "reasonable expectation" the facilities would need to obtain new permits due to the state passing "an ambiguous statute" that can be interpreted "two separate ways," they wrote. The law was written in a way that it could be invoked "any time the contractor makes a change to it's immigration detention facilities," the argued.

The law also "directly regulates the federal government," they argue. While the law purports to only regulate local governments within the state, it effectively regulates the activities of both GEO and the federal government.

"Allowing the State to hide behind the facade that it is regulating municipalities rather than federal contractors like GEO would give rise to obvious gamesmanship and manipulation of intergovernmental-immunity doctrine, which is why this Court rejected exactly the same argument the State offers here in United States v. California," they wrote.

This is a reference to a case in which Senior U.S. District Judge William B. Shubb barred enforcement of a California law that would have given it a right of first refusal to buy any federal land for sale in the state. The state claimed the law only regulated other potential buyers. United States v. California, 2:18-cv-00721-WBS-DB (E.D. Cal., filed April 2, 2018).