Panel Poised to Overturn Injunction on ICE Arrests at Courthouses

Protesters brave the cold on Dec. 7, 2017, to rally against a surge of immigration arrests being carried out in New York City courthouses. (Courthouse News photo/Amanda Ottaway)

BOSTON (CN) — U.S. courthouses have become points of vulnerability for undocumented immigrants thanks to the government’s new policy on making arrests there, but the First Circuit appeared reluctant Wednesday to intervene.

“Notwithstanding my dislike for this whole procedure,” said U.S. Circuit Judge Juan Torruella, “I’m wondering why Supremacy Clause doesn’t decide this case.”

There’s no question that authorities can arrest anyone at a courthouse on suspicion of committing a crime, but civil arrests — such as those occurring for an immigration infraction — have historically been barred at courthouses because they could discourage people from coming to court to participate as plaintiffs, victims and witnesses. This policy was affirmed with regard to the Immigration and Customs Enforcement agency in directives issued by the Obama administration.

“Women have accepted near-fatal domestic abuse rather than going to court and risking civil arrest,” said David Zimmer of Goodwin Procter, arguing Tuesday at the First Circuit on behalf of two Massachusetts prosecutors.

The district attorneys filed suit after the Trump administration opened the doors for ICE to arrest people in courthouses.

“Our courthouses have always been viewed by our citizens as bastions of fairness, civility and safety,” DA Marian Ryan of Middlesex County said at a 2019 press conference. “Anything at all that changes that perception should be intolerable for those who believe in what our country is founded upon.”

ICE claims that courthouse arrests are “consistent with longstanding law enforcement practices nationwide,” and that they protect the public because people who go to courthouses are screened for weapons and therefore arrests can be conducted with less fear of violence or harm to bystanders.

Middlesex District Attorney Marian Ryan speaks during a 2019 news conference in Boston announcing a federal lawsuit against U.S. Immigration and Customs Enforcement over its policy of arresting people at courthouses on civil immigration matters. (AP Photo/Alanna Durkin Richer)

Zimmer faced an uphill battle Wednesday, however, in arguing that the longstanding common-law principle prohibiting civil arrests in courthouses can overcome the 1952 federal law allowing ICE to conduct civil arrests.

“It beggars credulity to say a that principle is long-established and familiar when you can’t cite a single case” applying it in this context, complained U.S. Circuit Judge Bruce Selya, who like Torruella is a Reagan appointee.

The arguments made it likely that the panel, rounded out by U.S. Circuit Judge William Kayatta, will reverse the preliminary injunction U.S. District Judge Indira Talwani issued the prosecutors last year. Talwani, an Obama appointee, found it notable that Congress never explicitly changed the centuries-old common-law rule against civil arrests in court.

But Justice Department attorney Francesca Genova told the First Circuit that the common-law rule was “dead” because it was intended for service of process — a procedure that hasn’t been conducted by means of civil arrest since the 1940s.

The judges focused on the fact that the common-law rule applied to private parties, and there were no cases saying that the government couldn’t conduct a civil arrest wherever it liked.

“We seem to have a gap,” said Kayatta, an Obama appointee. “I couldn’t find any cases on that, much less a long-established rule.”

Zimmer replied that the key distinction was between civil and criminal arrests, not arrests by private parties versus the government.

“You make a fair point,” said Kayatta, “but the difference between a civil personal right being vindicated and the vindication of a violation of law by the state is one where one can reasonably think, that’s pretty significant, is there any case law?”

The difference is “not like one case involved a black car and another involved a red car,” Kayatta said.

Zimmer also argued that Congress can’t authorize federal agents to violate state-court rules unless it specifically says that’s what it’s doing.

“I found your back-up argument more attractive than your lead argument,” Kayatta said, “until I discovered” that Massachusetts trial courts have adopted a policy for handling ICE arrests.

If “Massachusetts doesn’t have a problem” with the arrests, the judge went on, “then what the injunction is doing is enjoining arrests that the Massachusetts trial court has invited ICE to come in and make.”

Zimmer replied that the Massachusetts courts had adopted the policy under duress and that, like many other states, Massachusetts would bar the arrests if it could. “ICE has literally broken down the doors of New York courthouses to make arrests,” he claimed.

Kayatta asked Genova if Congress could authorize federal agents to ignore state-court rules about carrying guns or cellphones. “What about a rule that says you can’t yell at a judge?” he wondered.

The judge later suggested that the panel could ask the Massachusetts Supreme Court to clarify the state’s position.

At one point, Genova tried to show that the common-law rule against civil arrests didn’t apply to the government by citing an English case from 1694 and another from the reign of Henry VIII.

Selya, age 86, turned to Torruella, who is 87. “Was Judge Torruella counsel in either of those cases?” he asked.

“Yes, I was,” Torruella replied. “And I’m pretty sure you were too, Bruce.”

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