California Senate Hears Bill to Keep ICE Out of State Buildings

Legislative Update by Shari Rendall | January 26, 2018

The sanctuary state of California continues ramping up its ongoing efforts to protect illegal aliens by trying to eliminate or undermine federal immigration enforcement as much as possible. After passing its sanctuary state bill, Senate Bill 54, and ten other related bills last year, the California Senate’s Committee on Public Safety passed Senate Bill 183 by a party-line vote on January 9. This extreme bill prohibits immigration officials from entering buildings that are open to the general public, stating that “[f]ederal immigration enforcement agents, officers, or personnel shall not enter a building owned and occupied, or leased and occupied, by the state, a public school, or a campus of the California Community colleges, to perform surveillance, effectuate an arrest, or question an individual therein, without a valid federal warrant.”

On January 22, the full Senate amended the bill to make it even more extreme. The amended version says that even if immigration officials do have a valid federal warrant, their “activities … shall be limited to the individual who is the subject of the warrant.” This means they can’t make “collateral” or “incidental” arrests of anyone else who they develop probable cause to arrest while trying to serve the warrant—not even people who commit crimes in their presence.

Unsurprisingly, the bill does not impose these requirement on state or local law enforcement, or on any other federal agencies, but only on immigration officials. The bill is not limited to private or secure areas of state buildings, but by addressing buildings in general, would cover areas of buildings that are open to the public and would be closed only to personnel of federal immigration enforcement agencies, primarily Immigration and Customs Enforcement (ICE) and Customs and Border Patrol (CBP). Nor does the bill specify how it would be enforced, or detail what would happen to immigration officers if they violate its terms.

A chief motivation behind the bill appears to be a nationwide push by open border advocates to keep ICE out of not just so-called sensitive areas like churches, hospitals and schools but, in particular, courthouses. In that vein, California Chief Justice Tani Cantil-Sakauye wrote to Attorney General Jeff Sessions in March of last year that she was “deeply concerned … that immigration agents appear to be stalking” illegal aliens in courthouses. This sentiment was echoed by Senator Ricardo Lara when he introduced the bill and said, “[c]ourthouses, schools and other state offices are a refuge for millions of the most vulnerable Californians, and immigrants should not be afraid to come to court or take their children to school.”

Contrary to this emotional posturing, while federal law does not prevent ICE from entering schools, hospitals or churches, or taking enforcement action there, the agency already deliberately avoids conducting routine operations at those locations under its own voluntarily-adopted Sensitive Locations Policy.

However, courthouses are very different from schools, hospitals or churches, and so ICE chose not to include them in that policy. ICE often makes arrests at courthouses, and both the agency and illegal-alien supporters alike recognize that this has become noticeably more frequent since the Trump Administration took office. Unsurprisingly, , much of that increase has come in sanctuary cities, counties and states where, because of those very same sanctuary polices, ICE is unlikely to be able to find or access illegal aliens in the even more secure conditions of a jail or police station: according to ICE, that makes courthouses the next best alternative.

According to ICE, it’s preferable to make arrests at courthouse “[b]ecause courthouse visitors are typically screened upon entry to search for weapons and other contraband, so the safety risks for the arresting officers, the arrestee, and members of the community are substantially diminished”; and also because “tracking down priority fugitives is highly resource-intensive. It is not uncommon for criminal alien targets to utilize multiple aliases and provide authorities with false addresses. Many do not have a stable place of employment. Absent a viable address for a residence or place of employment, a courthouse may afford the most likely opportunity to locate a target and take him or her into custody.” SB 183 directly conflicts with and undermines both of these reasons by trying to bar ICE from the courthouse door.

Of course, the bill doesn’t merely frustrate ICE’s practices and the reasoning behind them, but blatantly violates the Supremacy Clause of the U.S. Constitution—which states that federal law is the supreme law of the land—by seeking to bind federal agencies and personnel with state law. It does far more than merely not using state or local resources on federal priorities: it attempts to actively interfere with and stop federal officers from doing their jobs of enforcing federal law.

Indeed, the bill seems practically designed to dramatically escalate the chances of a conflict where complying with state law requires the commission of federal crimes by state or local elected officials, judges, law enforcement, or other public employees. First, it could require violation of the “alien smuggling” law for “conceal[ing], harbor[ing], or shield[ing] from detection” illegal aliens, which is punishable by up to five years in prison “for each alien” involved. [emphasis added]

Another possible federal crime might be Obstruction of Proceedings before a federal department or agency, particularly if ICE already had an order of deportation or removal and sought to enforce it in a building where state or local officials attempted to bar them. That crime also comes with a potential five-year sentence. And actually physically stopping ICE personnel at the courthouse door by force, barriers or restraints, or ordering others to do so, could be Assaulting, Resisting or Impeding a Federal Officer, which if it involves physical contact carries a maximum sentence of eight years or if it involves a weapon or injury, up to twenty years.

SB 183 does not have a companion in the Assembly, but has several cosponsors from both chambers. Senate President pro Tempore Kevin de Leon, who sponsored California’s sanctuary state bill, SB 54, in last year’s session, has previously expressed a desire to create “ ‘safe zones’ barring immigration enforcement on public schools, hospital and courthouse grounds,” so he can likely be expected to support the bill. Neither Assembly leadership nor Governor Jerry Brown appear to have yet weighed in on it, but based on past experience, any opposition on their part is likely to result in amendments to minor details rather than outright rejection.