In a June 5, 2019, post, I discussed the case of Ryan vs. U.S. Immigration and Customs Enforcement, in which state prosecutors in Massachusetts joined with public defenders and "civil litigants" to sue Immigration and Customs Enforcement (ICE) for making arrests of aliens subject to removal at state courthouses. On June 20, 2019, Judge Indira Talwani of the United States District Court for the District of Massachusetts issued a preliminary injunction preventing ICE "from civilly arresting parties, witnesses, and others attending Massachusetts courthouses on official business while they are going to, attending, or leaving the courthouses."
In that earlier post, I noted that Judge Talwani had made well-publicized statements objecting to ICE courthouse arrests, and argued that to eliminate any questions of impartiality, Judge Talwani should ask that case be reassigned. She did not.
While the full scope of that order is unclear, the implications for ICE enforcement in Massachusetts are significant. My colleague Jessica Vaughan explained in July 2018 that "Massachusetts Sanctuary Policies Freed Hundreds of Criminal Aliens in 10-Week Period" and that the options available to ICE agents to make arrests in the Bay State are limited due to the prevalence of sanctuary policies there.
Due to a 2017 state supreme court ruling declaring that no local law enforcement agencies may honor ICE detainers, ICE cannot easily take custody of the criminal aliens they are seeking to remove. In addition, several other sizeable jurisdictions, including the cities of Boston, Cambridge, Somerville, Chelsea, Newton, and Lawrence (which is, as Vaughan noted in that post, the opioid distribution hub of New England), have local policies to prohibit cooperation with ICE.
The agency likely would rather not have to resort to courthouse arrests, either, but aside from three counties and the state prisons that have 287(g) programs, ICE does not many other good options. The agency opts to go to courthouses because they are controlled environments. Specifically, courthouses are staffed by law-enforcement officials, and in order to enter a courthouse, an individual must pass through security to ensure that the individual does not possess any weapons.
If ICE officers are unable to arrest aliens whom they are seeking in "controlled" environments where weapons are prohibited and those aliens are known to be (such as jails and courthouses), they will need to either arrest those aliens in public (for example at their places of business), or track them down at their homes.
Attempting an arrest these situations, however, poses a danger to the officers, the alien, and the public at large, as then-Attorney General Jeff Sessions and then-Homeland Security Secretary John Kelly explained in response to a March 2018 letter from California Chief Justice Tani Cantil-Sakauye:
Some jurisdictions, including the State of California and many of its largest counties and cities, have enacted statutes and ordinances designed to specifically prohibit or hinder ICE from enforcing immigration law by prohibiting communication with ICE and denying requests by ICE officers and agents to enter prisons and jails to make arrests. Such policies threaten public safety, rather than enhance it. As a result, ICE officers and agents are required to locate and arrest these aliens in public places, rather than in secure jail facilities where the risk of injury to the public, the alien, and the officer is significantly increased because the alien can more readily access a weapon, resist arrest, or flee. Because courthouse visitors are typically screened upon entry to search for weapons and other contraband, the safety risks for the arresting officers and persons being arrested are substantially decreased.
Consider the danger to ICE officers in the most uncontrolled environment, the alien's home, where flight is easy and weapons could be hidden. If the officer cannot see inside the house, he or she has no idea what is waiting on the other side of the door. An alien may be armed or could try to forcibly flee, possibly assisted by others.
Every year, there are numerous reports of officers who are killed and wounded in such incidents. For example, on November 18, 2016, "a 26-year veteran of the [U.S.] Marshals Service and deputy commander of the Southeast Regional Fugitive Task Force" was shot and killed "while trying to serve an arrest warrant" by the subject of that warrant in Georgia. On September 29, 2016, two officers were shot serving an arrest warrant in Kingman, Ariz. In that incident:
Body cam footage provided by the City of Kingman show[ed] the officers arriving in tactical gear and the suspect inside the house holding a gun at his side.
The officers yelled "Drop the gun" several times. The suspect is seen raising the gun to shoot, with officers returning fire as the video ends.
In a November 20, 2008, incident that shocked the nation, FBI Agent Samuel Hicks was killed in Indiana Township, Pa., "during a raid on the home of a suspected cocaine dealer, who was taken into custody along with his wife."
Situations like these require officers to be appropriately armed to respond to any potential situation. In most instances, those sought will submit to arrest simply by a show of appropriate credentials. Where wanted individuals believe that resort to force would be effective, however, officers need to be prepared to respond appropriately, both to effect the arrest and (more importantly) to protect other members of the public from a potential deadly situation.
It should be noted that ICE was not using its authority to arrest every criminal alien in Massachusetts, as an agency document to which Vaughan linked in her post showed. This document illustrates, rather, that ICE is being selective about its targets — they are not going after every shoplifter, jaywalker, and broken-taillight case. Instead, ICE has issued detainers on fewer than half of the actionable cases that come to it via Secure Communities. Many of those it is going after are bad people, the sorts of aliens who are more likely to respond violently to an arrest attempt.
Unfortunately, violent encounters at residences and public places are the inevitable result of policies that prevent local police from communicating with ICE, local jails from honoring detainers, and judges from denying access to courthouses to federal officers. ICE officers, at least for the time being, will have to subject themselves and the public to the dangers of a violent encounter in an uncontrolled environment in Massachusetts.
One final note. In my initial post about this case, I explained how Judge Talwani could have returned this case for reassignment without a motion for recusal, and that she should have done so in the interests of justice, as a matter of discretion. "Interests of justice" is a vague concept, but this case demonstrates a concrete example.
Whether that decision is right or wrong will ultimately be decided based on her final decision, and likely the determination of the Court of Appeals for the First Circuit, and possibly the Supreme Court. The legal arguments in Ryan are complex, and therefore those courts' analyses will be crucial. Few are likely to assess those arguments or those analyses in-depth. The most likely takeaway is that a judge who previously expressed her pique at the presence of ICE officers in her courtroom found that they should not be in courtrooms at all. Those who note this fact will likely question whether hers was the correct decision as a matter of law, or simply the personal opinion of a jurist who did not like the concept of ICE officers in the courtroom. That, in turn, will undermine the respect of those individuals for the judiciary as a whole.
In our democracy, we accept generally the concept that unelected judges make decisions and abide by those decisions because we believe they are fairly decided. Any scenario in which the fairness of the judiciary is called into question, however, undermines this concept.
In any event, given the significant ramifications of Judge Talwani's order, the Department of Justice should and likely will seek a stay of that decision as quickly as possible. The safety of ICE officers and the public at large depends on it.