A domestic-violence survivor seeking a protection order. A man attending a hearing for driving without a license. A mother of five in court over a traffic accident. These are some of the hundreds of people immigration officials have detained in or near Washington state courthouses since 2017, according to Attorney General Bob Ferguson. He is trying to put a stop to the practice.
Ferguson filed a federal lawsuit Tuesday against the Trump administration, he announced at a news conference in Seattle, saying such arrests violate individuals’ constitutional right to access courthouses and states’ right, as guaranteed by the 10th Amendment, to operate their justice systems without federal interference.
It is Ferguson’s 53rd lawsuit against the Trump administration, the attorney general noted, and one of many to challenge the president’s attempt to crack down on illegal immigration. This one taps into a highly charged battle between local and federal authorities over whose mission is more important and contrasting visions of how to ensure public safety.
Courthouse arrests occurred under previous presidential administrations, too, but not nearly as frequently due to a Trump-ordered policy change in 2017 expanding the practice, according to Colleen Melody, who runs Ferguson’s civil rights division.
Federal officials have said they are increasingly driven to making courthouse arrests by sanctuary policies, like those in Washington, blocking local authorities from turning over often-dangerous criminals in their custody. (The Department of Corrections will, however, notify immigration officials when inmates of federal interest are about to be released, and agents will pick them up, according to spokeswoman Janelle Guthrie.)
A FAQ by Immigration and Customs Enforcement (ICE), explains it this way: “In years past, most individuals arrested at a courthouse would have been turned over to ICE by local authorities upon their release from a prison or jail based on an ICE detainer.
When criminal custody transfers occur inside the secure confines of a jail or prison, it is far safer for everyone involved, including officers and the person being arrested.”
Ferguson concedes that some of those arrested at courthouses were facing serious charges, though he said they hadn’t necessarily been convicted. But he said his staff had gathered “overwhelming evidence” that arrests affected many others, including crime victims and witnesses — a conclusion also reached in an October report by the University of Washington’s Center for Human Rights. By arresting undocumented immigrants or scaring them away from courthouses, Ferguson said, federal agents were impeding prosecutions.
“Bottom line, this allows criminals to go free,” the attorney general said.
King County Prosecutor Dan Satterberg and Thurston County Prosecutor Jon Tunheim joined Ferguson at the news conference and wrote declarations supporting the lawsuit.
“No one is safer when crime victims fear being deported if they call 911, talk to police, or come to the courthouses to testify or get protection,” Satterberg wrote.
“Specifically,” Tunheim said in his declaration, “undocumented domestic violence victims have expressed to their advocates that they no longer feel safe reporting abuse to the authorities for fear of deportation.”
At the news conference, Tunheim said he was also troubled by a recent Thurston County arrest of a man who had been released by the court and ordered to return to face criminal charges. When he complied with that order, federal agents handcuffed him and whisked him away. “This seemed to play out similar to a kidnapping,” Tunheim said.
The attorney general planned to submit 40 declarations Wednesday by judges, prosecutors, defense attorneys, immigrants and others criticizing the conduct of federal agents and the impact of courthouse arrests.
One man said officers tore his clothing and taunted him during an arrest. Ken Chadwick, the man’s attorney and a former police sergeant, said he supported Trump’s immigration policy, but called the actions by the arresting Customs and Border Protection (CBP) officers “abusive, if not illegal.”
“In my lengthy years in law enforcement, the conduct and procedures displayed by the CBP officers was some of the worst I have encountered,” Chadwick wrote.
Speaking by phone, Chadwick recounted how federal officers even tried to arrest him for obstruction of justice, as reported earlier this year by Crosscut. The physically imposing agents were manhandling his slight client outside the Grant County courthouse in Ephrata, Chadwick said, and he asked them to calm down and advise the man of his rights in Spanish.
“We know that there are plenty of violent offenders illegally in the country,” Chadwick said. Instead of going out looking for them, federal agents — in particular those in the Border Patrol, seen most frequently around the Grant County courthouse — were picking up the “low-hanging fruit” of misdemeanor defendants, the lawyer said.
CBP spokesman Jason Givens said the agency does not comment on pending litigation. ICE spokeswoman Tanya Roman said the same of her agency but added that Congress had given federal officers “broad at-large arrest authority by Congress.”
“It is ironic,” she wrote in an email, “that elected officials want to see policies in place to keep ICE out of courthouses, while caring little for laws enacted by Congress to keep criminal aliens out of our country.”
“I certainly understand that Immigration and Customs Enforcement has a mission,” Tunheim said. “We have only made one single request: Don’t do that at our courthouses.” It’s a matter of local sovereignty, he said.
And also respect, Satterberg indicated. He referred to a 2017 letter written by state Supreme Court Chief Justice Mary Fairhurst to then Homeland Security Secretary John Kelly. Fairhurst asked Kelly to consider designating courthouses as “sensitive locations,” more or less no-go zones for federal agents.
He did not. And a letter last month from the current Acting Homeland Security Secretary Chad Wolf and U.S. Attorney General William Barr to Fairhurst and Oregon Chief Justice Martha Walters made clear that courthouse arrests will go on despite a recent Oregon law banning them unless officers have a judicial warrant. Washington’s Supreme Court is considering a similar rule.
“Under the supremacy clause of the United States Constitution, such rules cannot and will not govern the conduct of federal officers …,” Wolf and Barr wrote.
Complained Satterberg, “They think their work is more important than ours. I”m deeply offended by that.”
In an indication of how heated this debate has become, federal prosecutors in April charged a Massachusetts judge and former court official with obstruction of justice for helping an undocumented man sneak out of a courthouse to evade an ICE officer waiting for him.
In June, a federal judge issued a temporary injunction blocking immigration arrests at Massachusetts courthouses until a lawsuit over the practice is resolved.
Ferguson said the order provided a “clear road map” of his strategy.