Update: Governor Cuomo signed the bill on December 15.
Since 2017, ICE officers have made common practice of showing up at state and local courthouses to arrest people appearing in court for reasons unrelated to immigration. Advocates who have been fighting back to ensure immigrant communities can safely access courthouses won a major victory last week as the New York State Legislature passed the Protect Our Courts Act, which now awaits Gov. Andrew Cuomo’s signature.
The bill would prohibit ICE from arresting anyone who is going to or leaving a court proceeding — whether as a party, witness, or family member — unless the officer has a warrant signed by a judge. It would also require courthouse personnel to deny entry to any non-local law enforcement officer seeking to make a civil arrest without a judicial warrant. While a federal judge in New York recently ordered ICE to stop making courthouse arrests, this new legislation makes such a prohibition permanent and stops officers at the courthouse door.
With a more than tenfold increase in these types of arrests under the Trump administration, there is extensive evidence of how damaging they are to the justice system. Surveys of community members, attorneys, and law enforcement make clear that undocumented people are scared to come to court and, as a result, are declining to pursue cases or seek court orders of protection in the way they normally would. This bill enables attorneys and other community service providers to tell their clients it is safe to come to court.
Judges and law enforcement officials have also detailed the tremendous challenges that ICE courthouse targeting poses for their work, leading to chaotic courthouses and the disappearance of parties, victims, and witnesses essential to the justice system. Some arrests have been so violent that onlookers reported seeing a kidnapping on the courthouse steps. While there is no inherent reason for ICE officers to be present in state courthouses that do not hear immigration matters, ICE leadership has blamed their aggressive tactics on the unwillingness of “sanctuary cities” to participate in federal immigration enforcement.
Outside of New York, several other states have taken major steps to protect their courts as well. In March, Washington Gov. Jay Inslee signed a bill that similarly prohibits courthouse immigration arrests without a warrant. California enacted a similar law in 2019. Over the last three years, state and local court systems have themselves issued orders limiting ICE enforcement in New York, Oregon, New Jersey, Seattle, and Albuquerque.
Advocates that have sued ICE over its policy of making courthouse arrests, meanwhile, have also won major victories. Federal courts in Massachusetts, New York, and Washington have all ruled that ICE simply lacks the authority to ignore centuries-old protections against civil courthouse arrests, protections intended to ensure people are not scared to come to court. (The Brennan Center filed a friend-of-the-court brief on behalf of 19 retired Massachusetts judges in the Massachusetts litigation).
Even with these victories in several states, ICE can still make courthouse arrests with impunity in most of the country. The Biden-Sanders Unity Task Force recently recommended that the Democratic Party’s 2020 platform include a pledge to “prohibit [immigration] enforcement actions at courthouses that deter access to justice.” The leadership at the Department of Homeland Security could make such a change to ICE policy almost immediately.
Absent change at the federal level, however, New York and others have forged a clear path that states and cities can follow if they hope to ensure everyone in their communities has safe access to justice.