New York Bars ICE from Courthouses

The demonization of law enforcement, and 'the worst imaginable thing' a police chief ever has to do

By Andrew R. Arthur on December 18, 2020

On Tuesday, New York Governor Andrew Cuomo (D) signed the "Protect Our Courts Act" (S425A). The words "immigration" never appear in the bill, but it is apparent from the governor's press release that its target is ICE, and the intention is to prevent the agency from making arrests in courthouses in the Empire State. I question the enforceability of several provisions therein, but its ultimate consequence will be the endangerment of ICE officers.

With respect to the first point, that bill adds a new section 28 to New York's civil rights law, which "privilege[s] from civil arrest" parties to state court proceedings (criminal and civil, although that is not spelled out), as well as potential witnesses thereto, and family and household members of parties and potential witnesses, absent a "judicial warrant or judicial order authorizing such civil arrest". ICE administrative warrants don't count.

As I have previously explained, "Immigration Judicial Warrants Don't Exist". It gets worse, though.

The bill also makes it "a contempt of the court and false imprisonment for any person to willfully violate" the foregoing. Unlawful imprisonment in the first degree under N.Y. Penal § 135.10 (when the actor "restrains another person under circumstances which expose the latter to a risk of serious physical injury"), is a class E felony (subject to up to four years' in jail).

Criminal contempt in the first degree (N.Y. Penal § 215.51) is a class E felony, too.

Unlawful imprisonment in the second degree (N.Y. Penal § 135.05, a class A misdemeanor) occurs when the actor "restrains another person". That's a class A misdemeanor, which can net the offender a year in jail. Criminal contempt in the second degree, under N.Y. Penal § 215.50, is as well.

So, assuming I am reading this bill correctly — I have drafted a number myself in the past, and this one is not a paradigm of clarity as it does not expressly reference the aforementioned provisions of the New York State penal law, but uses terms of art with legal meanings — ICE officers can be arrested and tried in state courts for doing their jobs.

Clearer is the 201-year-old Supreme Court decision in McCulloch v. Maryland. Argued by Daniel Webster, the opinion was authored by Chief Justice John Marshall, who explained "the states have no power... 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."

That the enforcement of the immigration laws is solely vested in the executive branch of the federal government has been explained in these pages so many times as to need no citation. That principle was underscored most recently by the Supreme Court in Arizona v. United States. Justice Kennedy explained therein that "the States are precluded from regulating conduct in a field that Congress, acting within its proper authority, has determined must be regulated by its exclusive governance."

The bill also allows anyone subject to such civil arrest (or who believes one "may occur") to "bring a civil action for appropriate equitable and declaratory relief", as well as reasonable costs and attorney's fees. Or the state attorney general may bring such a suit on that person's behalf.

That would appear to mean that a New York state court could enjoin a federal action (the arrest of an alien), and order the payment of fees resulting from the suit — the latter an action (in my mind at least) indistinguishable from that at issue in McCulloch (which involved a Maryland state tax on bank notes issued by the federal Second Bank of the United States).

The signing statement reads like a combination of Orwell and Kafka, only with a much more overtly political bent. For example, the governor contends that he signed the bill "to ensure New Yorkers can freely access the justice system without fear of being targeted by federal immigration authorities." Well, technically, ICE — and DHS as a whole — is a part of "the justice system".

In fact, the purpose of ICE arrests is either to bring an alien to court to receive due process in "the justice system", or to remove the alien from the United States after he or she had received such due process. Due process is the touchstone of "justice", at least in this republic.

Cuomo goes on to assert: "Unlike this federal government, New York has always protected our immigrant communities." The meaning of "this federal government" is vague in this instance (in essence, "the" is the proper article, as the U.S. federal government has been a unitary institution since at least March 4, 1789), but I assume that the governor is referencing the current administration.

As an aside, that statement begs the question of how it "protect[s]" New York's "immigrant communities" to inhibit ICE in its attempts to arrest criminal aliens (likely the sole target of ICE enforcement in the state's courts). As I have explained in the past, criminal aliens almost always (although certainly not exclusively) target those in the "immigrant communities" in which they live.

In any event, however, it is on that point that the press release ventures into the wacky. It quotes one "Senator Brad Hoylman, Chair of the New York Senate Judiciary Committee", who asserts:

This new law is a powerful rebuke to the outgoing Trump administration and their immigration policies that have undermined our judicial system. After today, New York's courts will no longer be hunting grounds for federal agents attempting to round-up and initiate deportation proceedings against immigrants.

Three points:

One, why, exactly, a state would need to rebuke an "outgoing" administration is a puzzle, especially since the incoming one of president-elect Joe Biden will likely be more simpatico as it relates to immigration with "Senator Brad Hoylman, Chair of the New York Senate Judiciary Committee" than the Trump administration has been.

In fact, Biden has stated that he will fire any ICE officer who arrests an alien who has not committed a serious crime (in particular, an unspecified "felony") in the United States, as I have previously explained. I am unsure as to why "Senator Brad Hoylman, Chair of the New York Senate Judiciary Committee" would not want such individuals to be "round[ed]-up", but it suggests it is not the man — but the law — the chair is rebuking. If so, he is sitting in the wrong legislature.

Two, "Senator Brad Hoylman, Chair of the New York Senate Judiciary Committee" has his facts wrong. As I explained in October, the Trump administration's immigration enforcement efforts have not been that different from those carried out in the Obama-Biden administration, and in many aspects have been much less stringent.

In FY 2019, ICE arrested approximately 143,000 aliens and removed 267,258. Only 32 percent of the aliens removed (85,958, or roughly 7,163 per month) were originally arrested by ICE in the interior (like, say, New York). Of those aliens, 91 percent had either a criminal conviction or pending charges. The remainder of the aliens removed had been arrested by CBP at the border.

By contrast, in FY 2011 (the third fiscal year of the Obama-Biden administration), ICE removed 396,906 aliens, of whom only 45,938 (11.5 percent) were border removals. Of the interior removals, 216,698 had criminal convictions, while 134,270 (38 percent) were non-criminal immigration violators.

As the foregoing shows, the total number of aliens removed by ICE in the interior in FY 2019 was actually less than a quarter of what they were in FY 2011, under the Obama-Biden administration. Given these facts, what exactly has the Trump administration or its immigration policies in particular done that "undermined our judicial system"?

Third, "Senator Brad Hoylman", from his perch as the "Chair of the New York Senate Judiciary Committee", would likely be in a position to understand that the reason that ICE seeks out aliens in the state's courts is the fact that — as the agency explained last November — "New York State policy severely limits state and local law enforcement cooperation with ICE and requires a judicial warrant to honor most ICE detainers."

Having been an assistant general counsel in the INS's enforcement division, I can state unequivocally that ICE does not want to arrest criminals in court. That sort of operation gives lawyers heartburn, which is why there are rigid standards ICE officers must follow in such cases.

But ICE does so because it has few better choices: New York law enforcement (who, at the beat level — and very likely higher — want malefactors off their streets) is barred from honoring its detainers, and state policy impedes cooperation between ICE and state and local authorities.

As I explained in March, there are three reasons for courthouse arrests: (1) that is where the criminals are, and in particular, criminal aliens; (2) courthouses are controlled environments where the occupants have been screened for weapons before entering; and (3) "sanctuary policies" make it difficult for ICE agents to interview and arrest criminals in local jails — which are also controlled environments. An arrest in a courthouse, therefore, is safer for the ICE officers, the aliens, and the public than arresting those aliens on the streets or at their residences.

Which leads me from the Italianate New York State Executive Mansion (Cuomo's official residence) in Albany some 770 miles southwest to the Mount Holly Car Wash and Arcade in Gaston County, N.C. Officers responded to a call at that car wash of a burglary in progress, and encountered an armed suspect at 3:30 AM on Friday, December 11.

Shots were fired, and Mount Holly Police Officer Tyler Herndon was killed, two days shy of his 26th birthday. Mt. Holly Police Chief Don Roper was bereft when he broke the news, stating that "this is the worst imaginable thing that I can do." What does this have to do with New York's courthouse law barring ICE arrests? Plenty.

Eulogizing Officer Herndon on the floor of the U.S. Senate on Tuesday, Sen. Thom Tillis (R-N.C.), noted:

In 2020, there have been 47 law enforcement officers killed in the U.S. Of those, eight were ambushed in premeditated attacks, two were victims of an unprovoked attack, and the other 37 officers killed in the line of duty. These gruesome killings are in addition to the hundreds of officers who have been shot and injured this year.

These 47 Americans were not only law enforcement officers. They were someone's loving parent. They were someone's spouse. They were someone's child.

That's a point that has unfortunately been neglected by some, especially given the shameful effort to not only minimize the work of law enforcement, but to also demonize it.

Demonization of law enforcement? Read the press release — it drips with it. The statement of "Senator Brad Hoylman, Chair of the New York Senate Judiciary Committee" about "New York's courts" being "hunting grounds for federal agents"? Seriously? ICE officers are doing a job that Congress has assigned them and you as a taxpayer fund. Analogizing a courthouse arrest to a "hunt" is (respectfully) beyond the pale.

Or consider Cuomo's statement about New Yorkers being "unfairly targeted by ICE or other federal immigration authorities"?

What is "unfair" about arresting an individual suspected of being a removable alien (almost definitively under ICE policy one with a criminal record or a final order in this context) in the controlled setting of a courthouse? They will get their day in court, assuming they have not already had it. In our legal system, that is the definition of "fairness".

"Targeting"? Rhetorically indistinguishable from the offensive "hunting grounds" analogy.

And, not to mention, a statement that "minimize[s] the work of law enforcement". Removing criminal aliens from our country means keeping them off of the streets, out of our communities, and away from our neighbors and our loved ones. The threat of those criminals is likely diminished (or non-existent) in the Italianate New York State executive mansion, with its round-the-clock police protection, but it is real elsewhere.

Instead, what Cuomo, "Senator Brad Hoylman, Chair of the New York Senate Judiciary Committee", and everyone who voted for this bill is doing is deliberately making the job of ICE officers harder, while obliviously jeopardizing their lives.

Officer Herndon's killing demonstrates that enforcing the law is dangerous work — particularly in an uncontrolled and uncontrollable situation. No one should make it more dangerous through misguided sanctuary laws compounded by bills that threaten ICE officers with four years in jail for making arrests in courthouses.

Perhaps someday reason and facts will sweep sanctimony and ignorance from the immigration debate. Until then, New York politicos and their like-minded fellows throughout the United States will continue to crank out barriers to ICE enforcement — regardless of which "federal government" they are talking about.

My hope is that no ICE officer has to make the sacrifice that Tyler Herndon did in the interim. As Tillis stated: "My thoughts and prayers are with Officer Herndon's family, the Mount Holly Police Department, and the residents of the community he served." So are mine.