Wa. State Sues DHS Over Courthouse Arrests

Wa. State Attorney General, Dec. 17, 2019

"Attorney General Bob Ferguson today filed a federal lawsuit against the Trump Administration for arresting immigrants in and near courthouses in Washington. This practice is harmful to public safety and Washington’s justice system.

Since 2017, immigration authorities have arrested hundreds of immigrants in or near courthouses in Washington. Contrary to the assertions of immigration officials, evidence shows these arrests are not limited to dangerous individuals. Many were victims of crime or appeared in court on nonviolent charges, such as traffic offenses, with no prior criminal record. Others were there to register motor vehicles, pay traffic tickets or accompany a relative to court.

“If immigration officials can demonstrate that their courthouse arrests only target dangerous criminals, I will drop this lawsuit,” Ferguson said. “But they won’t do that because they can’t. The federal government has arrested many people who are simply trying to access justice for themselves or their families. That’s illegal, it makes us all less safe, and it needs to stop.”

The lawsuit, filed in U.S. District Court for the Western District of Washington against the Department of Homeland Security (DHS), Immigration & Customs Enforcement (ICE) and Customs & Border Protection (CBP), asserts the courthouse arrests are unlawful and unconstitutional. DHS’s conduct creates a barrier to justice for immigrants and makes the public less safe.

Anyone with information to share about federal immigration arrests at or near courthouses in Washington state, including anyone impacted by the practice, should contact the Attorney General’s Office by calling (833) 660-4877 and choosing option 6 from the menu. Messages may be left in any language. You may also email the Attorney General’s Office at courthousearrests@atg.wa.gov.

A judge in Massachusetts recently issued an injunction blocking the practice of courthouse arrests in Massachusetts while a separate lawsuit challenging the practice continues. “Each day that the threat of ICE arrests looms over Massachusetts courthouses… some state criminal and civil cases may well go unprosecuted for lack of victim or witness participation,” the judge wrote.

DHS arrests individual at courthouses with no prior conviction or criminal histories

Since 2017, hundreds of civil immigration arrests at courthouses have been reported in Washington, occurring in 20 counties across the state: Adams, Benton, Clark, Cowlitz, Franklin, Grant, Grays Harbor, King, Kitsap, Kittitas, Mason, Okanogan, Pacific, Pierce, Skagit, Spokane, Thurston, Walla Walla, Whatcom and Yakima.

In January 2018, DHS formally issued a directive and “FAQs” admitting to its enforcement practices at courthouses. The documents suggest that arrests at courthouses target specific individuals, including those with “criminal convictions, gang members, national security or public safety threats.”

Contrary to the public justifications provided by DHS, the Attorney General’s Office uncovered significant evidence that many of the people DHS has arrested at courthouses in Washington have no prior convictions or criminal histories. Many were in court for routine proceedings like traffic infractions. DHS has also detained crime victims or those appearing in court to protect themselves against violence — for example, by seeking protection orders against abusers.

• Federal agents arrested a domestic violence survivor outside of a Grant County courthouse as the survivor was attempting to seek a protection order.
• In March 2018, DHS arrested a man at a Grant County courthouse after attending a hearing for driving without a license. His wife, who waited in the car for him while their child was sleeping, was left without any information about where to find him.
• In October 2018, immigration agents arrested a woman who was attending court in Adams County regarding a car accident. She was the primary caretaker of her five children, ranging in age from 10 months to ten years of age. Only after she had been gone two weeks did her oldest child receive a call reporting she had been arrested and held in immigration detention.
• In March 2019, DHS arrested a father at the Ephrata courthouse in Grant County, who was handling a ticket related to not having proper car insurance. The father is married to a U.S. citizen, with U.S. citizen children, and had a pending application for permanent residency at the time of his arrest.
• DHS arrested some individuals who were appearing in court for more serious charges. In some cases, however, reports show that these individuals had not yet been convicted of any crime and had no history of prior convictions.

Courthouse arrests are making the public less safe

Courthouses are critical institutions of the criminal justice system. The Attorney General’s Office uncovered evidence statewide that DHS’s conduct causes witnesses, victims, and others to refuse to enter courthouses. Their refusal to participate in the criminal justice system reduces public safety.

DHS’s conduct deters victims of crimes from making reports to state and local law enforcement, allowing criminals to go free. For example, a Washington resident who was robbed while trying to rent an apartment refused to report the crime because he was afraid DHS would arrest him if he went to the courthouse.

In a declaration, Thurston County Prosecutor Jon Tunheim wrote, “Specifically, undocumented domestic violence victims have expressed to their advocates that they no longer feel safe reporting abuse to the authorities for fear of deportation. This leaves them and their family at high risk of abuse. The perpetrators with legal status use that privilege as an additional control tactic against undocumented victims by consistently threatening to deport them and separate them from their children.”

King County Prosecutor Dan Satterberg wrote, “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. Unpunished violent crime threatens us all, and the current DHS policy of conducting immigration arrests at state and local courthouses jeopardizes public safety.”

“Treated like an animal”

The Attorney General’s Office obtained nearly 40 declarations from Washingtonians who have witnessed or experienced the impacts of the federal government’s courthouse arrests, including judges, prosecutors, public defenders, defense attorneys, court administrators, court interpreters and community advocates.

• One man, referred to as S.G., described how immigration officers tore his clothing and taunted him as they arrested him in a courthouse. He is the father of three young children, all American citizens. After the arrest, he was detained for 80 days. “I felt and saw myself treated like an animal.”
• S.G.’s attorney, a former law enforcement officer, wrote, “In my lengthy years in law enforcement, the conduct and procedures displayed by the CBP officers was some of the worst I have encountered. … I am a supporter of President Trump’s immigration policy, and I am a strong supporter of law enforcement. It saddens me to have to write about abusive, if not illegal, conduct of these CBP officers and the plain disregard of their conduct by their command staff.”
• A public defender in Spokane wrote, “The negative impacts on the criminal justice system go beyond individual defendants, and affects victims, witnesses, and others who are afraid that ICE is using the state court system as bait for their enforcement operations.”
• The statewide advocacy director for Washington’s largest legal-aid provider Northwest Justice Project (NJP) wrote that the courthouse arrest practice “enables family violence. … For many people, the potential harms they face in going to court are so untenable that they simply decline to participate in the legal process and thus expose themselves to the risk of future violence.”
• A court interpreter wrote: “I have interpreted at many victims' and witnesses' interviews where a victim or a witness expresses a concern about immigration status, and then either refuses to participate themselves, or refuses due to immigration issues to provide contact information for another witness with key information.”
• Thurston County District Court Judge Brett Buckley wrote, “This type of enforcement action has serious chilling effects on the ability and willingness of targeted populations to access justice.”
• A former Snohomish County victim advocate wrote: “The way that (my client’s) immigration status was used against him to try to prevent him from participating in the criminal justice system, makes me angry. (He) was viciously assaulted. He did the right thing by reporting the assault to police, and the attacker's conviction may mean that someone else avoids a future, violent attack. The fact that (my client) called me from immigration detention to say that he was detained for having participated in the criminal justice system was extremely difficult to hear.”

Legal claims

Individuals have a constitutional right to access courthouses. Civil arrests that take place in and around courthouses violate long-standing common law privileges against such arrests. DHS’s conduct violates the Tenth Amendment, which provides states the autonomy to control the operation of their judiciaries and prosecute crime without federal interference.

The courthouse arrests also violate the Administrative Procedure Act, which prevents the federal government from enacting a policy that violates the law. Congress has not granted DHS the authority to conduct courthouse arrests, and the agency failed to consider the harm the policy would cause to state courts.

Civil Rights Division Chief Colleen Melody and Assistant Attorneys General Marsha Chien and Mitch Riese with the AGO’s Wing Luke Civil Rights Division are handling the case for Washington.

Ferguson created the Wing Luke Civil Rights Division in 2015 to protect the rights of all Washington residents by enforcing state and federal anti-discrimination laws. Ferguson named the division for Wing Luke, who served as an Assistant Attorney General for the State of Washington in the late 1950s and early 1960s. He went on to become the first person of color elected to the Seattle City Council and the first Asian-American elected to public office in the Pacific Northwest.

Lawsuits against the Trump Administration

Ferguson has now filed 53 lawsuits against the Trump Administration and has not lost a case. Ferguson has 24 legal victories against the Trump Administration. Fourteen of those cases are finished and cannot be appealed. The Trump Administration has or may appeal the other 10, which include lawsuits involving Dreamers and 3D-printed guns. No court to rule on the merits of the Attorney General’s arguments in a lawsuit against the Trump Administration has ruled against the office."