DENVER–A bill to prohibit “civil arrest” in or around courthouses passed state Senate review and is now headed to the House Judiciary Committee on February 25.
Senate Bill 20-083 by Sen. Julie Gonzales, D-Denver and Rep. Leslie Herod, D-Denver purports to immunize anyone “present at a courthouse or on its environs from civil arrest,” and gives judges the authority to issue a “writ of protection” that would, among other scenarios, prohibit Immigration and Customs Enforcement (ICE) arrests of illegal aliens.
The bill also creates a cause of action in civil court for false imprisonment that allows damages and authorizes any person so arrested or detained to “seek a writ of habeas corpus” that requires the arresting official to appear before a judge to justify the arrest.
The state Attorney General is authorized to “bring a civil action on behalf of the people of the state” as well.
ICE issued Directive Number 11072.1 to its employees on January 10, 2018 that sets policy “regarding civil immigration enforcement actions inside federal, state, and local courthouses.”
“Federal, state, and local law enforcement officials routinely engage in enforcement activity in courthouses throughout the country because many individuals appearing in courthouses for one matter are wanted for unrelated criminal or civil violations,” says the policy. “ICE’s enforcement activities in these same courthouses are wholly consistent with longstanding law enforcement practices, nationwide. And, courthouse arrests are often necessitated by the unwillingness of jurisdictions to cooperate with ICE in the transfer of custody of aliens from their prisons and jails.”
The focus of its efforts, says the directive, is on criminal aliens, not family members or others.
“Aliens encountered during a civil immigration enforcement action inside a courthouse, such as family members or friends accompanying the target alien to court appearances or serving as a witness in a proceeding, will not be subject to civil immigration enforcement action, absent special circumstances, such as where the individual poses a threat to public safety or interferes with ICE’s enforcement actions,” says the directive.
Since being issued, the directive has been the subject of intense debate and courtroom scrimmages nationwide over its use.
Courts in Massachusetts and New York, among others, have been petitioned by immigration activists to enjoin or overturn the directive claiming, as does SB 083, an “English common law privilege from civil arrest at a courthouse and on its environs, or while going to, attending, or coming from a court proceeding.”
The bill claims that this common law privilege “has not been legislatively repealed,” and extends the privilege to “proceedings conducted under the authority of a court, including, but not limited to, probation and pretrial services.”
But the Trump administration argues in response to such claims that Congress’ plenary power to “establish an (sic) uniform Rule of Naturalization,” means immigration policy and federal supremacy overrides state laws that interfere with the federal government’s execution of immigration law.
Citing a 2012 Supreme Court case, Arizona v. United States, the federal government claims that by enacting express authority over the arrest and detention of illegal aliens, the common law argument being used by many jurisdictions to oppose Trump’s immigration policies is nullified.
“The federal scheme instructs when it is appropriate to arrest an alien during the removal process,” Justice Kennedy writes in the ruling.
Last year Governor Jared Polis signed a bill into law saying, “A law enforcement officer shall not arrest or detain an individual on the basis of a civil immigration detainer request.” The law also prohibits probation officers from providing “personal information about an individual” to federal immigration authorities.
In the last few weeks President Trump has stated his intention to take on so-called immigration “sanctuary cities” to enforce federal immigration policy.
The conflict between federal immigration policy and state laws is complicated by federal immigration law, 8 U.S. Code § 1324, that make it a crime with up to 5 years in prison and a fine for any person who “transports, or moves or attempts to transport or move…conceals, harbors, or shields from detection, or attempts to conceal, harbor, or shield from detection” any illegal alien, or who engages in any conspiracy or aids or abets violations of immigration law.
This statute seems to place law enforcement, court personnel and even judges at risk of criminal indictment for knowingly or intentionally obstructing ICE enforcement efforts.
This is not merely a speculative threat to state officials who defy federal law. Federal prosecutors charged Massachusetts state judge Shelly M. Richmond Joseph, and former court officer Wesley MacGregor of conspiracy to obstruct justice and obstruction of justice April 25 for allegedly directing a man to a basement exit of the Newton District Courthouse in Newton, Massachusetts in March 2018, allowing him to escape ICE officers waiting for him in the lobby.
Both are currently awaiting trial.
The bill will be heard Tuesday, February 25 before the House Judiciary Committee at 1:30 pm in room HCR 0112.
Editor’s note: Attempts to reach the bill sponsors for comment were unsuccessful as of press time.