- On March 3, 2020, ICE agents arrested an unidentified individual on the steps of the San Francisco Hall of Justice.
- An uproar about this fairly commonplace arrest erupted, because of California's laws restricting access to ICE at courthouses in the state — despite the fact that arrest occurred in front of the courthouse.
- The San Francisco district attorney has threatened to prosecute ICE officers who violate the city's so-called sanctuary laws.
- The state of California lacks the authority to "retard, impede, burden, or in any manner control" immigration enforcement under federal law.
Last Tuesday, an unidentified man was arrested by U.S. Immigration and Customs Enforcement (ICE) agents in front of the "Hall of Justice" at 850 Bryant Street in San Francisco, Calif. While I question whether this is actually "news", it was treated as such in the Bay Area, and specifically because such arrests are in violation of California law, or something. This madness (that is, arbitrary restrictions on access by ICE officers) needs to stop, or somebody is going to get hurt.
The state law in question is SB 54 (2017-18 Regular Session), which added a new chapter 1725 to division 7, title one of the state's government code (much of California law is codified, and it is literally and metaphorically voluminous). New section 7248.8(a) therein states, in part:
The Attorney General, by October 1, 2018, in consultation with the appropriate stakeholders, shall publish model policies limiting assistance with immigration enforcement to the fullest extent possible consistent with federal and state law at ... courthouses ... , and ensuring that they remain safe and accessible to all California residents, regardless of immigration status. ... All ... courthouses shall implement the model policy, or an equivalent policy.
The attorney general in question is Xavier Becerra, who served 12 terms in Congress before becoming state AG, and who is a well-known critic of the Trump administration, having sued it (as of September 2019) 62 times in federal court. The resulting policy document is 36 pages long, and contains such interesting ideas as allowing individuals in court (including defendants) to use pseudonyms and:
[M]inimizing nonessential courtroom appearances, such as allowing for continuances in response to an individual's credible fears of immigration enforcement, utilizing tentative rulings or permitting appearances by an attorney or through remote means such as telephone, video, or other electronic media if available. [Emphasis added.]
Consider the highlighted phrase. Assisting criminal defendants to avoid immigration enforcement is now official California state policy. That statement alone should be chilling not just to individuals who care about immigration enforcement, but to anyone who is concerned about crime, its victims, and its effects (logically the public as a whole, given the fact that our elected representatives passed those criminal and immigration provisions).
Also interesting is the following: "officers engaged in immigration enforcement are restricted from entering 'nonpublic places of labor' within public facilities without a judicial warrant." As a whole, "Securing Equal Access to Justice for All, Guidance and Model Policies to Assist California's Superior Courts in Responding to Immigration Issues" reads like a primer on obstructing the federal government.
In any event, the arrest in question took place on the steps of the (in this case, at least) inaptly named "Hall of Justice", not in the courthouse itself, but that has not stopped complaints. For example, San Francisco Public Defender Mano Raju said that the "arrest was conducted without a judicial warrant and 'therefore in violation of state law.'"
I am not sure what state law he was referring to (and in California, state laws impeding ICE are as common as garlic in Gilroy), but 7248.8 appears to only relate to the interior of courthouses. Even in AG Becerra's mind-numbing policy guidance, the word "steps" only appears once, under a section captioned "Model Policies for Responding to Requests for Access for Immigration Enforcement Purposes", and even then it is the "steps" court personnel should take "in response to the service of a subpoena or a request for access to execute an administrative arrest warrant."
Of course, San Francisco District Attorney Chesa Boudin chimed in, calling (along with PD Raju) on ICE to stop making any courthouse arrests. For those not familiar with Boudin, his campaign website's front page begins: "Chesa Boudin's parents were incarcerated when he was just fourteen months old for driving the getaway car in a robbery that tragically took the lives of three men." That leaves a few blanks unfilled, which were helpfully completed by NBC News:
In 1981, when Chesa Boudin was 14 months old, his parents — members of the radical and violent Weather Underground — left him with a babysitter so they could take part in an armored car robbery. It became one of New York's most notorious botched heists, a crime that left two police officers and a Brink's truck guard dead in a New York suburb.
With his parents in prison, Boudin was raised in Chicago by Weather Underground founder Bill Ayers and his wife, Bernardine Dohrn, both of whom had been federal fugitives in the 1970s for their anti-war activities. Boudin would go on to study at Yale and Oxford, where he was a Rhodes Scholar. He would later spend a decade traveling in South America, working, among other jobs, as a translator for Venezuela's president at the time, Hugo Chavez, before becoming a public defender in San Francisco.
Quite the curriculum vitae. That article also notes:
Like his peers on the left, Boudin ran on a platform of ending "mass incarceration," eliminating cash bail, creating a unit to review wrongful convictions and refusing to cooperate with Immigration and Customs Enforcement, or ICE, as well as prosecuting ICE agents who violate so-called sanctuary city laws. He also wants to move the district attorney's office away from prosecuting prostitution and minor quality-of-life crimes to focus, instead, on taking on corporations and prioritizing the most serious offenses.
So, to be clear, DA Boudin doesn't want to enforce local crimes (his office this week dropped charges and is "pursuing a 'restorative justice' model against a 20-year-old man arrested in the robbery of an elderly Asian man in his 70s that was captured on a video that went viral", for example), but he wants to prosecute ICE officers.
If this sounds familiar, it is because my colleague Dan Cadman has already detailed Boudin's unique agenda:
Boudin's most recent "Eureka!" moment has been to open a unit within his district attorney's office, which serves as the prosecutor for the entire city and county of San Francisco, whose twofold focus will be on 1) "protecting" deportable aliens from the reach of ICE; and 2) "investigating" ICE agents who go about doing their job of finding the alien criminals released by San Francisco police and sheriff's departments in defiance of federal immigration laws.
Which brings me back to the Hall of Justice, or its steps, to be more exact. Boudin and Raju asserted that "this was the first time this type of courthouse immigration enforcement has occurred in San Francisco." I find it hard to believe that this is true, given the fact that the City by the Bay is 244 years old, and immigration enforcement there was fairly common during the three-plus years I worked for the INS there, but if it is true, it is because the city and the state have blocked immigration enforcement everywhere else they can.
This leaves ICE few options to take dangerous criminals off of the street, with the exception of courthouses, in the public at large, and at their places of residence. I have written ad nauseam about the dangers of ICE enforcement in those latter two places, but here it goes again: Such arrests run the risk that the alien will use deadly force to resist, resulting in possible injuries to the ICE officers, innocent bystanders, intervenors, and the aliens themselves.
And given the climate of resistance that Becerra and Boudin are fostering, potential intervention, by force, by court personnel. When local officials use words like "egregious abuse of power" to describe an ICE immigration arrest, things are out of control, and bad things can happen.
More importantly, however, Boudin is setting up a system in which ICE officers are prosecuted for enforcing the laws of the United States. Prosecution usually requires the use of force, real or threatened. Consider a mundane example: You are stopped by a police officer for speeding. You stop, because there is an implied threat that the officer will use force to stop you otherwise.
And you remain at the site because there is an implied threat that the officer will use force against you if you attempt to flee. That is why the trooper puts on his or her hat and wears a gun during the approach to the vehicle and the stop — those are symbols of the state's authority delegated to that officer to use force if necessary to ensure your compliance. Thank you, drive safely, and have a nice day.
Becerra's policy guidance does not state that force can be used to impede ICE officers in the performance of their duties, but it does note that ICE policy directives encourage that civil enforcement actions within courthouses be performed in "non-public areas of the courthouse, be conducted in collaboration with court security staff, and utilize the court building's non-public entrances and exits." California's policy guidance recommends, however:
Absent a judicial warrant or exigent circumstances, law enforcement personnel should not have access restricted areas of court facilities for immigration enforcement purposes. Presiding judges and court executive officers should develop internal protocols to provide courthouse personnel with direction for how to address immigration enforcement to ensure that courthouse operations are not disrupted.
In this context, "exigent circumstances" means
[T]hose circumstances that would cause a reasonable person to believe that entry [or search] ... was necessary to prevent physical harm to the officers or other persons, the destruction of relevant evidence, the escape of the suspect, or some other consequence improperly frustrating legitimate law enforcement efforts.
Of course, you have to get to footnote 53 to find this guidance, and by definition a determination of "exigent circumstances" is fact-based (particularly, in this case, as it relates to the "legitimacy" of federal immigration "law enforcement efforts"). This sets up a situation where state court employees will have to reach a conclusion about the exigency of the matter and the legitimacy of the ICE efforts, and may disagree with the ICE officer on either or both points — or on the same timeframe as the agency. Most government employees in my experience are not risk-takers on the job, and this guidance will likely make them reluctant to comply with ICE.
I will note, as an aside, that the ICE directive is intended to protect the public during what can be a heated situation in which an alien is taken into custody, a factor that California appears to care little about in this context.
This guidance will, however, set up a situation where there is conflict between ICE and the state courthouse protection officers with respect to access. In the ideal circumstance, that will be resolved in a collaborative fashion. But the policy guidance sets up a regime where they can be at conflict — implied force will meet implied force. What then? No idea.
Of course, all of this is pointless. Raju (a UC Berkeley law grad), Boudin (Yale Law School), and Becerra (Stanford Law) should have all taken constitutional law in the course of their studies, and be familiar with the now 200-year-old decision in McCulloch v. Maryland, which is taught in all introductory Con Law classes. As Chief Justice John Marshall wrote there, "the states have no power, by taxation or otherwise, to retard, impede, burden, or in any manner control, the operations of the constitutional laws enacted by congress to carry into execution the powers vested in the general government."
Immigration is the consummate "power vested in the general [read: federal] government". This point was most recently underscored by the U.S. Court of Appeals for the Second Circuit in State of New York v. Dep't of Justice, about which I wrote on March 1, and in fact, McCulloch was one of the cornerstones of the circuit court's decision. California can pass all the laws it wants, draft all of the policy guidance it cares, and take every step (no pun intended) it desires, and it still cannot "impede, burden, or in any manner control, the operations of the constitutional laws enacted by congress to carry into execution" the immigration laws of the United States.
Scare tactics and confusion are what those bloviating demagogues are banking on, at a time and in a place that clarity and sense is needed. Read some law, gentlemen, before someone — an ICE officer, a member of the public, or a criminal alien, gets hurt.