Reporter COLIN ANDERSON, Lead Attorney, Yolo County DCSS
Something to think about: SHOULD OUR COURTS BE SANCTUARIES FOR LITIGANTS?
The CSDA Legal Practices Committee (LPC) meeting was held telephonically on September 15, 2015. A “walk-on” topic that engendered a lot of discussion was the issue of the special challenges for undocumented individuals in appearing in California courtrooms.
The question posed was whether our courtrooms are sanctuaries for undocumented individuals—where they can/should be free from arrest? The backdrop of this discussion is the increase of Immigration and Customs Enforcement (ICE) agents making arrests of illegal aliens either in the courtroom or just outside it. NOTE: I have purposely interchanged illegal alien and undocumented individuals to extenuate the divide this issue is in this country.
The argument against such arrests is that they deter undocumented individuals from seeking justice as a witness or litigant, or as a victim of crime, for fear of being deported. In a child support context this is seen often. Litigants are afraid to admit in open court that they are working. Further, because of their undocumented status they may not show up to contest a child support order or respond to a Summons and Complaint for fear of ICE/government reprisals. This can lead to defaults on cases that really need more input from the litigant. An LA Times article from March of 2017 reported on a couple who went to get married at the Kern County Superior Court and were subsequently arrested by ICE agents. Such incidents led California Chief Justice Tani Cantil-Sakauye to write to U.S. Attorney General Jeff Sessions and former Homeland Security Secretary John Kelly to request them to cease such arrests. “Enforcement policies that include stalking courthouses and arresting undocumented immigrants, the vast majority of whom pose no risk to public safety, are neither safe nor fair,” she wrote. “Courthouses should not be used as bait in the necessary enforcement of our country’s immigration laws.” And “They not only compromise our core value of fairness, but they undermine the judiciary’s ability to provide equal access to justice. I respectfully request that you refrain from this sort of enforcement in California’s courthouses.” http://www.sacbee.com/news/politics-government/capitol-alert/article168714487.html#storylink=cpy
On the other hand, from a law enforcement perspective, as expressed by Sessions in his response to the Chief Justice’s letter, an appearance in court is a perfect opportunity to apprehend a person who is breaking the law. The individual has passed through security, so they have no weapons and an arrest can be made safely. In addition, with the advent of sanctuary cities in California many jurisdictions do not honor ICE detainer holds. In the past these individuals would have been turned over to ICE by local law enforcement once their case was finished. However, this no longer happens. This can lead to illegal aliens with significant criminal histories being released back into the community, constituting a potential public safety threat. A chilling example is the killing of Kathryn Steinle who was killed by an illegal alien after being released by the local authorities who did not honor an ICE detainer hold.
At beginning of this article, I purposely began talking about courtrooms being sanctuaries for all litigants. It has been my experience that courts in general are in fact not sanctuaries for litigants. Individuals are not protected from arrest or other government action based solely on their presence in a courtroom or in the courtroom hallways. I have seen witnesses and visitors arrested on warrants by law enforcement in the hallways of a Superior Court. In addition, law enforcement—and LCSAs themselves—use court attendance as an opportunity to serve an individual with a summons or a subpoena, especially for individuals who are otherwise hard to find. I have also observed judges being upset when a witness in an action was arrested prior to the commencement of a trial or hearing.
The reality is that courts are a public place and laws are enforced there as they are in other public spaces. So the question that comes to my mind is: Given that citizens are not granted sanctuary from law enforcement in the courtroom, should we advocate that non-citizens be granted sanctuary? If not, should or can we develop processes to assist an undocumented litigant in obtaining access to court proceedings in a way which does not expose them to “discovery”? Or should courts be a true sanctuary from law enforcement for all and no one can be arrested inside the walls of a Superior Court?
Something to think about.