//  4/11/17  //  Commentary

On March 16, 2017, Chief Justice Tani G. Cantil-Sakauye of the California Supreme Court wrote a letter to Attorney General Jefferson Sessions and Department of Homeland Security Secretary John F. Kelly. In that letter, summarized and defended here by Larry Tribe, she expressed her concern about “reports from some of our trial courts that immigration agents appear to be stalking undocumented immigrants in our courthouses to make arrests.”  The Chief Justice emphasized that individuals come to court at some of the most vulnerable moments in their lives, and stressed the difficulty of providing access to justice when ICE agents use courthouses as “bait.”  She concluded by urging that federal agents stop “stalking courthouses and arresting undocumented immigrants.”

The Chief Justice of Washington State has since made a similar statement, as have some California city attorneys and district attorneys

Chief Justice Cantil-Sakauye’s request met with a harsh response from Attorney General Sessions and Secretary Kelly, who issued a letter on low-fi joint letterhead. They needlessly mansplain the elements of the federal crime of “stalking” (and basic Fourth Amendment doctrine on public arrests) to the Chief Justice before turning to the true substance of their response.  Which is, in a nutshell, that it’s all California’s fault that this is happening, since state and local officials are “denying requests by ICE officer and agents to enter prisons and jails and make such arrest.”

Sessions and Kelly do not specify the policies they find problematic, choosing instead to rely on vague insinuations of noncooperation.  In fact, DHS already has access to information about everyone who is detained in the nation’s prisons and jails, and has the power to assume custody of individuals being released from these facilities when authorized to do so by federal law.

Sessions and Kelly may be alluding to a refusal on the part of some jurisdictions to hold individuals solely on the basis of ICE detainer requests.  It is true that many state and local officials are declining to comply with such requests, but this is not because of any anarchist or lawless turn.  Rather, it is because courts have found that detaining people without probable cause on the sole basis of an ICE request unsupported by a judicial warrant or probable cause violates the Fourth Amendment.  State and local officials are acting as the Constitution requires and not in mindless defiance of federal law.  If the only thing that will satisfy DHS and DOJ is for states and localities to deliberately flout the Fourth Amendment and detain individuals without probable cause, this puts states and localities in quite a bind.

Furthermore, the very week that the Chief Justice penned her letter, L.A. County Sherriff McDonnell made plain the fact that it was his department’s ongoing practice “to release inmates being investigated by the U.S. Department of Homeland Security Immigration and Customs Enforcement, better known as ICE, directly into the custody of their agents.”  Yet, despite this policy of cooperation, within Los Angeles County, ICE agents were still making courthouse arrests at that time.  This pattern has repeated itself throughout the country, as when a woman was followed by ICE within an El Paso County courthouse—notwithstanding the fact that ICE has access to El Paso County jails, and that the El Paso County Sheriff’s Department’s policy is to comply with ICE detainer requests.

In this respect, Sessions and Kelly’s response to the Chief Justice highlights the disingenuous nature not only of their arguments but also of those made by officials like L.A. County Sheriff McDonnell.  All of these men argue that sanctuary policies are bad for immigrants because they force ICE to go after immigrants in places other than jails and prisons.  For instance, like Sessions and Kelly, McDonnell argues that “[i]f immigration agents cannot pick up people from the jails . . . they will go looking for those people on the streets, instilling fear among immigrants and making them less likely to cooperate with law enforcement in criminal cases.”

It seems pretty clear, however, that federal agents are perfectly comfortable using courthouse enforcement tactics in addition to, not in lieu of, jail enforcement. Sessions and Kelly “encourage” the Chief Justice to take her complaints to “the Governor of California and local officials who have enacted policies that occasionally necessitate officers and agents to make arrests at courthouses and other public places.”  But the facts on the ground in California and elsewhere force the conclusion that DHS authorizes its agents to carry out public arrests in locations of concern to state and local officials—both inside and outside of California—regardless of whether DHS has some form of access to individuals detained in state prisons and jails.  In short, this portion of the response is one big non sequitur.

Kelly and Sessions also reiterate the claim that California’s refusal to assist in their enforcement agenda “threaten[s] public safety.”  If enhanced immigration enforcement cooperation actually enhanced public safety, that might be the start of a worthy rejoinder to the Chief Justice’s letter.  But there really isn’t any good evidence for this, and in fact, there is a good deal of evidence to the contrary.

At the end of the day, the true takeaway from this exchange seems to be that there is little a state can do to stop the federal government from carrying out arrests in places and in ways that state officials find counterproductive and problematic.  This is unfortunate.  On the bright side, this also means that there is really very little incentive for states to shy away from enacting immigrant protective policies that may annoy certain federal officials—but that, when properly designed, can achieve the virtuous trifecta of being constitutional, improving public safety, and respecting human rights and dignity.


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