A Common-Law Privilege To Protect State and Local Courts During the Crimmigration Crisis
abstract. Under the Trump presidency, Immigration and Customs Enforcement (ICE) officers have been making immigration arrests in state and local courthouses. This practice has sparked controversy. Officials around the country, including the highest judges of five states, have asked ICE to stop the arrests. ICE’s refusal to do so raises the question: can anything more be done to stop these courthouse immigration arrests?
A common-law doctrine, the “privilege from arrest,” provides an affirmative answer. After locating courthouse immigration arrests as the latest front in a decades-long federalism battle born of the entanglement of federal immigration enforcement with local criminal systems, this Essay examines treatises and judicial decisions addressing the privilege from arrest as it existed from the fifteenth to the early twentieth century. This examination reveals that the privilege had two distinct strands, one protecting persons coming to and from their business with the courts, and the other protecting the place of the court and its immediate vicinity.
Although the privilege is firmly entrenched in both English and American jurisprudence, the privilege receded from the body of modern law as the practice of commencing civil litigation with an arrest fell by the wayside. However, the recent courthouse arrests make this privilege newly relevant. Indeed, there are several compelling reasons to apply the common-law privilege from arrest to immigration courthouse arrests. First, immigration arrests are civil in nature, and civil arrests were the chief focus of the privilege. Second, the policy rationales underlying the common-law privilege—facilitating administration of justice and safeguarding the dignity and authority of the court—are equally applicable to immigration courthouse arrests. Third, the federal courts have a shared interest with state and local courts in enforcing the privilege to advance those policy rationales.
This deeply entrenched common-law privilege demonstrates that local courts have legal authority to regulate courthouse immigration arrests and would be standing on firmly recognized policy grounds if they did so.
Since the Trump Administration promised to “take the shackles off” immigration enforcement officers,1 arrests in state and local courthouses around the country have sparked controversy. In February 2017, the Meyer Law Office, an immigration law firm, released a video filmed in a Denver courthouse that depicted Immigration and Customs Enforcement (ICE) officers admitting they were in the courthouse to make an immigration arrest.2 The video, viewed over 17,000 times on YouTube,3 increased awareness of the issue of courthouse arrests and reportedly surprised local officials who were unaware of ICE’s practice.4
In April 2017, top Denver officials including the Mayor, City Attorney, and all members of the City Council, sent a letter to the local ICE office.5 Citing the “recent media accounts” of courthouse arrests,6 the letter asked ICE to “consider courthouses sensitive locations” and “follow [its] directive . . . that particular care should be given to organizations assisting victims of crime.”7 For over six weeks, ICE did not respond while continuing courthouse arrests,8 two of which were captured on video.9
In late May 2017, ICE finally responded to the Denver officials’ letter, assuring the Mayor that ICE would “continue to be respectful of, and work closely with, the courts.”10 But following shortly on these assurances was the suggestion that ICE’s courthouse arrests might be retaliation for Denver’s policy of not detaining suspected immigration violators at ICE’s request11—ICE’s letter described “state and local policies that hinder [ICE’s] efforts” as among the “challenges to effective enforcement” causing ICE to “continually improve [its] operations.”12 Taken in its entirety, the letter made clear there would be no actual change to ICE’s practice of courthouse arrests.13
Similar stories have unfolded around the country.14 By June 2017, the chief justices of the highest courts of California,15 Washington,16 Oregon,17 New Jersey,18 and Connecticut19 had asked the federal government to stop ICE’s courthouse arrests.20 Meanwhile, Democrats in Congress introduced bills to include courthouses as “sensitive locations”21 to prevent ICE enforcement actions.22 Nevertheless, federal officials showed no sign of stopping the courthouse arrests.23 On October 17, 2017, Acting ICE Director Thomas Hohman defended ICE’s courthouse arrests, stating, “I won’t apologize for arresting people in courthouses. We’re going to continue to do that.”24
This Essay examines the current impasse over courthouse immigration arrests. Part I briefly describes the decades-long “crimmigration” crisis. Part II contextualizes courthouse arrests as the latest front in the federalism battle fueled by federal efforts to co-opt local criminal justice systems to serve the immigration enforcement mission. Part III examines a longstanding common-law doctrine establishing a privilege against courthouse arrests, and discerns two strands of this privilege. The first strand protects persons coming to and from the courts, while the second protects the place of a court and its environs. Part IV contends that this common-law privilege empowers states and localities to break the current impasse for three main reasons. First, courthouse immigration arrests fall within the privilege’s core concern with civil arrests. Second, they raise many of the same policy concerns—facilitating administration of justice and safeguarding the dignity and authority of the court—underlying the rationale for the privilege. And finally, case law indicates that federal courts will likely respect the privilege of state and local courts even in a federalism contest triggered by federal arrests.
In 2006, Juliet Stumpf described a “crimmigration crisis” in which the merger of criminal law and immigration law “brings to bear only the harshest elements of each area of law,” resulting in “an ever-expanding population of the excluded and alienated.”25 The crisis has intensified since the 1980s, making the record deportation numbers Stumpf cited26 seem modest in comparison with the 2.7 million deportations under the Obama Administration27—more than all twentieth-century administrations combined.28 And Donald Trump, in his presidential campaign, promised even more intense enforcement.29
One dimension of the “crimmigration” regime has been an enduring federalism battle resulting from increasing downward pressure from the federal government on state and local criminal justice systems to cooperate with and participate in immigration enforcement. Courthouse immigration arrests are some of the more recent fault lines broken open by this downward pressure. There have been no reports of immigration arrests in federal courthouses (and no outcry from federal judges), for the simple reason that federal immigration officials can count on the cooperation and support of federal criminal justice agencies like the U.S. Marshals Service and the Bureau of Prisons.30 The absence of such cooperation on the state and local level was explicitly cited by ICE as a reason for sending officers to make arrests in state and local courthouses.31
Historically, the federal government increased pressure on local governments slowly at first. In 1996, Congress passed legislation that simply invited local criminal justice agencies to enter into “287(g) agreements” that would allow local officers to enforce immigration law.32 After 9/11, however, the federal government opined that local law enforcement had “inherent authority” to enforce immigration laws33 and encouraged the activation of this dormant authority.34 The ever-increasing identification of noncitizens with criminals observed by Stumpf and others35 worked to transform immigration into a criminal problem, and therefore a problem appropriately solved by state and local police.36 The “inherent authority” argument, though, was susceptible to challenge based on principles of federalism,37 and was ultimately discredited in the Supreme Court’s 2012 decision striking down portions of Arizona’s Senate Bill 1070.38
Meanwhile, by 2008, as enforcement numbers soared, the federal appetite for crime-based immigration enforcement could no longer await voluntary or even encouraged local participation. The “Secure Communities” program, initially depicted as a voluntary data-sharing program from which localities could “opt out” if they did not want to be part of the local-federal immigration enforcement team, was finally unmasked in 2011 (three years into the program) as a mandatory regime.39 This brought the federalism battle to the fore, as unwilling participants at both the local and state level turned to the Tenth Amendment to disentangle local law enforcement from federal immigration enforcement.40 After a federal court decision in early 201441 made clear that the federal government could not use immigration “detainers” to command localities to prolong the detention of noncitizens otherwise entitled to release from local custody, a wave of policies limiting detainer compliance engulfed the country.42 Currently, over twenty-five percent of counties decline to hold prisoners based on immigration detainers.43
The Trump Administration, apparently intent on exceeding the record deportation numbers of the Obama Administration,44 has not retreated from the federalism battle. Instead, President Trump has attempted to pressure localities into immigration enforcement at every turn. A January 2017 Executive Order suggests that accomplishing the Administration’s enforcement goals depends on the participation of state and local criminal justice actors.45 The Order promised a return to the Secure Communities program46 (which the Obama Administration had abandoned after losing the federalism fight it engendered47), expressed a policy authorizing 287(g) agreements “to the maximum extent permitted by law,”48 and directed the DHS Secretary to “on a weekly basis, make public a comprehensive list of criminal actions committed by aliens and any jurisdiction that ignored or otherwise failed to honor any detainers with respect to such aliens.”49 Finally, the Order appeared to make good on Trump’s campaign promise to “end . . . sanctuary cities”50 by starving them of federal funding.51 This latter provision spawned immediate litigation and was enjoined by a federal judge in part because it “attempts to conscript states and local jurisdictions into carrying out federal immigration law,”52 and its coercion of local governments “runs contrary to our system of federalism.”53
Three decades of crimmigration have thus set the stage for the current conflict, as the federal government moved from strategies of coaxing and cajoling states and localities to participate in immigration enforcement to strategies of co-opting, coercing, and commandeering them.
Courthouse arrests represent the latest front, with some new twists, in crimmigration’s ongoing federalism battle. One such twist has been the emergence of state-court judges at the front lines of this conflict: where the federalism battlefield was previously on the street (when entanglement of local police was at issue54) or in the jails (when detainer policies were contested), it is now in state and local courthouses. In addition, the Tenth Amendment has not been invoked—yet. But a closer look at the complaints of state and local governments—and the response of the federal government—reveals that the controversy over courthouse arrests is merely a continuation of crimmigration’s federalism battle.
State-court judges primarily feared that civil immigration arrests would cause witnesses,55 criminal defendants,56 and civil litigants57 to avoid the courthouse.58 Deterring people from coming to court, they argued, in turn interferes with the state and local courts’ administration of justice,59 deprives them of their ability to adjudicate cases effectively,60 and threatens to cut off access to justice.61 In sum, state-court judges believed their “fundamental mission”62 and “ability to function”63 were undermined by courthouse arrests. Federal courts have not faced similar problems, as federal immigration officials can count on the cooperation and support of federal criminal justice agencies in lieu of making courthouse arrests.
The federal response made no effort to address the concerns of state-court judges that courthouse immigration arrests erode and undermine justice in state and local courts. Instead, administration officials suggested that the courthouse arrests might in some sense be retaliation for earlier federal defeats in the ongoing federalism battle fueled by the rise of crimmigration. “Some jurisdictions,” wrote Attorney General Sessions and then-DHS Secretary Kelly in response to California’s Chief Justice, “have enacted statutes and ordinances designed to specifically prohibit or hinder ICE from enforcing immigration law by prohibiting communication with ICE, and denying requests by ICE officers and agents to enter prisons and jails to make arrests.”64 It was because of such policies, General Sessions and Secretary Kelly insisted, that “ICE officers and agents are required to locate and arrest these aliens in public places.”65
ICE later suggested courthouse arrests would be directly correlated to a locality’s cooperation with (or resistance to) federal immigration enforcement: “As ICE undertakes the necessary enforcement of our country’s immigration laws, its officers and agents will continually improve their operations to meet the challenges to effective enforcement, including state and local policies that hinder their efforts.”66 The suggestion in both letters that courthouse arrests were a response to local “sanctuary” policies reveals that the federal government viewed courthouse arrests as another weapon in the ongoing federalism battle, deployed simultaneously with the defunding threat.67
The current federalism impasse raises several questions: Can state and local courts do anything more to protect those coming before them, beyond simply pleading with ICE to change its practice?68 Or does the classification of a courthouse as a “public place” end the inquiry, as the Attorney General and DHS Secretary have argued?69 And, even if the courthouse itself can be protected, will ICE lurk outside the courthouse and render such protection meaningless?70
A legal doctrine from the past—the common-law privilege from arrest—suggests possible answers to these questions. Mainly concerned with the practice of arresting the defendant to commence a civil suit, which fell into disuse when civil arrests largely disappeared from the American legal landscape,71the privilege from arrest has become newly relevant in light of the Trump Administration’s increased use of courthouse arrests.72
The common-law privilege from arrest dates back at least to the early fifteenth century.73 Blackstone succinctly described it as follows:
Suitors, witnesses, and other persons, necessarily attending any courts of record upon business, are not to be arrested during their actual attendance, which includes their necessary coming and returning. And no arrest can be made in the king’s presence, nor within the verge of his royal palace, nor in any place where the king’s justices are actually sitting.74
Blackstone’s first sentence describes a strand of the privilege pertaining to persons conducting business with the courts, while his second sentence describes a strand more generally pertaining to places—courthouses and their surroundings. Each is addressed here in turn.
A leading English case from 1791 set forth the general rule reported by Blackstone, “that all persons who had relation to a suit which called for their attendance, whether they were compelled to attend by process or not, . . . were intitled to privilege from arrest eundo et redeundo,75provided they came bonâ fide.”76A decade later, Spence v. Stuart demonstrated the breadth of this privilege.77 The court found the defendant “clearly privileged” from his arrest, even though the proceeding he had attended was an arbitrator’s examination at a coffee house.78 Application of the privilege to the arrest occurring the morning after the proceeding79 showed the liberality with which “eundo et redeundo” was interpreted.80 the rule’s policy “to encourage witnesses to come forward voluntarily.”81
The breadth of this component of the privilege was sustained upon its arrival in America. Greenleaf’s influential treatise on evidence, citing the leading English and American cases, noted that the rule was interpreted broadly to encompass “all cases” and “any matter pending before a lawful tribunal” (including proceedings before arbitrators, bankruptcy proceedings, and the like).82 Additionally, the courts were “disposed to be liberal” with respect to “going . . . and returning.”83 And neither a writ of protection nor a subpoena compelling one’s attendance was a prerequisite for enjoyment of the privilege.84
At common law a court might issue a “writ of . . . protection” to a litigant or witness who feared arrest while coming to court.85 But obtaining the writ was not a precondition for exercise of the privilege; rather, it served simply to provide “convenient and authentic notice to those about to do what would be a violation of the privilege. It neither establishes nor enlarges the privilege, but merely sets it forth, and commands due respect to it.”86
The Supreme Court has addressed the common-law privilege from arrest in a series of decisions in two closely related contexts—in construing the privilege afforded legislators under the Constitution, and in assessing the extent to which out-of-state residents are immune from service of process while in a state for the purpose of attending court. The Court’s discussions demonstrate that the English common-law privilege from arrest has been firmly entrenched in American law from the outset.
In Williamson v. United States, the Court addressed whether the privilege for legislators extended to arrests for criminal offenses, and quoted Joseph Story, who likened the legislator’s privilege to the common-law privilege from arrest described by Blackstone: “This privilege is conceded by law to the humblest suitor and witness in a court of justice; and it would be strange indeed if it were denied to the highest functionaries of the State in the discharge of their public duties.”87 And in Long v. Ansell, addressing the same question, the Court said that the legislator’s privilege “must not be confused with the common law rule that witnesses, suitors and their attorneys, while in attendance in connection with the conduct of one suit, are immune from service in another.”88 The Court noted that “arrests in civil suits were still common in America” when the Constitution was adopted, and cited several treatises as authority for this proposition,89 each of which explicitly recognized the privilege from arrest for those attending court.90
Similarly, in the context of immunity for out-of-state residents traveling to a state to attend court, the Court in Lamb v. Schmitt noted the “general rule that witnesses, suitors, and their attorneys, while in attendance in connection with the conduct of one suit are immune from service of process in another.”91 Here, and in two other cases addressing jurisdiction over nonresidents, the Court adverted to the seminal American decisions concerning the common-law privilege from arrest.92 Those decisions recognized the firm entrenchment of the privilege as it pertained to all persons (whether resident or nonresident) attending court.93
The Court’s decisions, and the lower court rulings upon which they relied, articulated the policy rationale behind the privilege. Quoting a “leading” New Jersey decision, the Court in Stewart v. Ramsay said that “[c]ourts of justice ought everywhere to be open, accessible, free from interruption, and to cast a perfect protection around every man who necessarily approaches them.”94 And in Lamb, the Court described the privilege as
proceed[ing] upon the ground that the due administration of justice requires that a court shall not permit interference with the progress of a cause pending before it, by the service of process in other suits, which would prevent, or the fear of which might tend to discourage, the voluntary attendance of those whose presence is necessary or convenient to the judicial administration in the pending litigation.95
The Court also characterized the privilege as “founded in the necessities of the judicial administration”96 and the notion that the courts should be “available to suitors, fully available, neither they nor their witnesses subject to be embarrassed or vexed while attending, the one ‘for the protection of his rights’, the others ‘while attending to testify.’”97
An early New York decision went further and expressed the privilege as an obligation of the courts: “We have power to compel the attendance of witnesses, and when they do attend, we are bound to protect them redeundo.”98
Blackstone’s second sentence—”And no arrest can be made in the king’s presence, nor within the verge of his royal palace, nor in any place where the king’s justices are actually sitting”99— addresses the sanctity of the court as a place, rather than formulating the privilege as attaching to certain people.100
An English case from 1674, in which a person was arrested while “entering his coach at the door of Westminster hall,” was cited in a leading treatise in support of an expansive view of the privilege: “[I]t was agreed, that . . . all persons whatsoever, are freed from arrests, so long as they are in view of any of the courts at Westminster, or if near the courts, though out of view, lest any disturbance may be occasioned to the courts or any violence used . . . .”101
The salient points of this aspect of the privilege—that it applies to “all persons whatsoever” and that it precludes arrest not only in the courts but also “near the courts, though out of view”—are confirmed in other English cases. In Orchard’s Case,102 a person was arrested on civil process103 either inside the court or “in the space between the outer and the inner doors” of the court.104 Although Orchard was an attorney, he had no business before the court at the time of his arrest.105 Thus, there was no claim (and could have been no claim) that Orchard enjoyed the privilege of someone “necessarily attending any courts of record upon business.”106 Instead, the case was argued and decided on the basis of a privilege of place, with Orchard’s representative submitting:
that every place, in which the Judges of the King’s superior courts were sitting, was privileged, and that no arrest could be made in their presence or within the local limits of the place where they were administering justice. To permit arrest to be made in the Court would give occasion to perpetual tumults, and was altogether inconsistent with the decorum which ought to prevail in a high tribunal.107
In addition to quoting the sentence from Blackstone referencing a privilege “where the King’s justices are actually sitting,”108 Orchard’s counsel cited Long’s Case,109 wherein arrest had been made “in the palace-yard, not far distant from the hall gate, the Court being then sitting.”110 The arresting officer in this case was “committed to the Fleet, that he might learn to know his distance.”111 In Orchard’s Case, the court (after discharging Orchard from custody) “admonished the officer to beware of again acting in a similar manner.”112
The common-law privilege surrounding the court was deemed sufficiently important that it extended beyond arrest, to mere service of process. In Cole v. Hawkins, for example, the court held that an attorney attending court was privileged from service made on the courthouse steps, because “service of a process in the sight of the Court is a great contempt.”113
American jurists likewise recognized this component of the privilege protecting the place of the court. In Blight v. Fisher, a federal judge explained that “[t]he service of process . . . in the actual or constructive presence of the court, is a contempt, for which the officer may be punished.”114The decision relied on Cole v. Hawkins and on the Pennsylvania Supreme Court’s decision in Miles v. M’Cullough setting aside process served on a person attending oral argument.115
These seminal cases—Blight, Cole, and Miles—were cited in Greenleaf’s 1864 treatise on evidence, which likewise understood the privilege as heightened at the courthouse and its surroundings, encompassing protection not only from arrest but also from service of process. “[I]t is deemed as a contempt to serve process upon a witness, even by summons, if it be done in the immediate or constructive presence of the court upon which he is attending; though any service elsewhere without personal restraint, it seems, is good.”116
* * *
The tendency of American courts was to expand the privilege,117 and the privilege as it pertained to persons expanded in some instances to encompass protection from service of process even if it occurred beyond the “actual or constructive presence of the court.”118 This expansion of the privilege as applied to some persons attending court,119 did not diminish or otherwise alter the privilege as to place described in Blight and established in other English and American decisions. The broad contours of the privilege as to place were that it applied to prevent arrest and service of process, both at the courthouse or near it, and to all persons regardless of whether or not they were pursuing business before the court.
As arrest gave way to summons as the principal means for initiating a civil suit, the privilege from arrest fell into disuse, and courts increasingly concerned themselves with questions of immunity from service of process.120 ICE’s courthouse arrests justify awakening the doctrine for three compelling reasons. First, the common-law privilege was typically used to address arrests commencing civil litigation. As immigration proceedings are civil, the privilege maps well onto courthouse arrests for immigration violations. Second, the policy objectives underlying the privilege align significantly with the concerns expressed regarding courthouse immigration arrests. And third, the American incorporation of the privilege demonstrates that federal and state courts alike have an interest in enforcing the privilege, making the doctrine particularly apt for resolving the federalism conflict created by courthouse arrests.
Thus, state and local courts not only have the legal authority to protect their courthouses and people coming and going on court business, but also their authority is likely to be respected.
The Supreme Court has explained that immigration arrests that initiate deportation proceedings are civil in nature.121 In Arizona v. United States, the Court noted that “[a]s a general rule, it is not a crime for a removable alien to remain present in the United States,” and that where a person is seized “based on nothing more than possible removability, the usual predicate for an arrest is absent.”122 Such an arrest must find justification in federal immigration statutes and regulations, which generally require that trained federal immigration officers perform the arrest.123 And the proceedings that such an arrest initiates are also characterized as civil: “Removal is a civil, not criminal, matter.”124
The legal categorization of immigration arrests and proceedings as civil supports application of the common-law privilege, which was largely used to address civil arrests.125 Furthermore, important similarities exist between civil immigration arrests and civil arrests commencing private litigation. They are both arrests—physical seizures of a person—made by public “officers.”126 For the privilege to apply, the arrests occur either in or near the courthouse,127 or the arrests are of people who are attending the courts on business.128 The arrests are followed by jail. And they are accomplished in order to commence a second, unrelated legal proceeding in a different court.129 These similarities, particularly when considered in light of the policy rationales supporting the privilege,130 and the shared federal and state interest therein,131 support application of the privilege.
Reframing immigration arrests as somehow criminal in nature—based on, for example, the fact that immigration proceedings are initiated by the federal government rather than a private litigant—could conceivably support an argument against application of the privilege. But doing so would turn existing precedent on its head and undermine a premise currently used to justify denying criminal-style procedural protections to immigrants in removal proceedings, making this an argument unlikely to come from the federal government.132
The policy reasons underlying the common-law privilege from arrest dovetail nicely with the objections raised to courthouse immigration arrests. The privilege was principally concerned with protecting the business of the court.133 The privilege pertaining to the place of the court—preventing all arrests in the “face”134 or “view”135 of the court, or “near the courts, though out of view”136 (in the “constructive presence”137)—prevented “violence” and “disturbance” in or near the courts.138 This preservation of decorum139 upheld the dignity and authority of the court generally.140 But the privilege of place attaching to the courthouse was also deemed essential to the administration of justice itself:141
This rule is buttressed with the high conception that as courts are established for the ascertainment of the whole truth, and the doing of exact justice, as far as human judgment can attain, in disputes between litigants, every extraneous influence which tends to interfere with or obstruct the trial for the attainment of this sublime end should be resisted by the ministers of justice to the last legitimate extremity in the exercise of judicial power.142
Justice was thought to be hindered in two ways by courthouse arrests. First, the threat of arrest and additional litigation might “disturb and divert the witness so that on the witness stand his mind might not possess that repose and equipoise essential to a full and true deliverance of his testimony.”143 Proceedings might even be interfered with, interrupted, or delayed by the arrest of a witness or party.144 Second, the fear of arrest might deter parties and witnesses from coming to court at all.145 To borrow the words of Chief Justice Lee in Cole v. Hawkins, “it would produce much terror.”146
This last reason, of course, was why the privilege pertaining to people attending court was extended “eundo et redeundo.”147 Protection at or near the courthouse was deemed insufficient, so the threat of arrest was removed as a possibility (and a deterrent) during the journey to and from the courthouse. Only in this way could the courts be made “available to suitors, fully available, neither they nor their witnesses subject to be embarrassed or vexed while attending, the one ‘for the protection of his rights,’ the others ‘while attending to testify.’”148
All of these policy reasons support application of the privilege to courthouse immigration arrests, given the shared features of immigration arrests and arrests to which the privilege was applied at common law.149 The prospect of arrest and jail—whether at the hands of an eighteenth-century English or American lawman or a twenty-first-century ICE officer—provides a powerful deterrent to the attendance of parties and witnesses in court. Indeed, echoing the concern of “terror” raised by Chief Justice Lee in Cole v. Hawkins150(who was merely discussing service of process), those chief justices objecting to ICE’s courthouse arrests have principally complained about the “chilling effect” of ICE arrests.151 Furthermore, the prospect of violent courthouse arrests, like those captured on video in Denver, for example, offers no less a threat today to the decorum, dignity, and authority of the courts than it has in the past.152
The ancient foundations of the common-law privilege also neatly address the argument put forth by the Attorney General and DHS Secretary: that courthouse arrests are lawful because they take place in a “public place based on probable cause.”153 Attorney General Sessions and Secretary Kelly relied on a Supreme Court case, United States v. Watson, in which postal officers conducted a warrantless arrest of the defendant in a restaurant.154 In Watson, the Court relied heavily on an examination of common-law sources (including Blackstone) and ultimately held that its Fourth Amendment jurisprudence “reflect[s] the ancient common-law rule” regarding warrantless arrest, and that “[t]he balance struck by the common law in generally authorizing felony arrests on probable cause, but without a warrant, has survived substantially intact.”155
But to say that an arrest in a restaurant is consonant with “the ancient common-law rule” is to prefer the more general rule (concerning arrest on probable cause in a public place) to the more specific—but equally ancient and well-established in the common law—rule examined here, the common-law privilege from arrest. Indeed, these two rules can coexist comfortably, as the former is a rule for determining when an arrest is lawful and the latter a rule for determining when there is a privilege from even lawful arrests.
This is not to say the common law rejected the notion of the courthouse as a public place. Rather, to ensure that the courts remained truly accessible to the public, it was deemed necessary to proscribe arrests at or near courthouses,156 and of those coming and going from the court.157 The Supreme Court acknowledged the wisdom of this “balance struck by the common law”158 when it quoted a leading early American case grounding the privilege in the notion that “[c]ourts of justice ought everywhere to be open, accessible, free from interruption, and to cast a perfect protection around every man who necessarily approaches them.”159
Because ICE can work closely with other agencies in the federal criminal justice system, it has not found it necessary to make arrests in federal courthouses, and the federal courts will likely have little need to assert the privilege from arrest in order to protect their own administration of justice. But American judicial decisions demonstrate the aligned interests of federal and state tribunals in advancing the public policy goals of the common-law privilege from arrest. First, federal, state, and local governments historically demonstrated a shared interest in applying the privilege from arrest to protect their own courts and those attending them, and therefore a shared interest in the idea that those courts are sufficiently empowered to do so. Second, all courts—federal, state, and local—demonstrated a shared interest in enforcing the privilege as to other courts, that it might likewise be enforced by other courts as to their own.
The privilege from arrest has been deemed necessary to preserve courts’ ability to administer justice.160 The jurisprudence surrounding the privilege unsurprisingly establishes that protecting the courthouse and its environs from disruption and violence (as accomplished by the privilege as to place) and protecting the administration of justice by privileging those with business before the court (as accomplished by the privilege as to people) is deemed a necessary power belonging to all courts.161
The most obvious demonstration of this power, at common law, was each court’s power to issue a writ of protection. That the power to issue such writs was held by American courts at common law is demonstrated by numerous authorities.162 A Rhode Island case recounted that a writ of protection had issued
in the ordinary form, commanding the sheriffs of the several counties, and their deputies, that they “let the said William T. Merritt of and from all civil process, whether original or judicial, so long as he shall attend said court, and until he shall be discharged from the protection aforesaid by this court at the present term.”163
But the writ of protection was not deemed necessary164—the power to grant privilege from arrest was deemed “a power inherent in courts.”165 This inherent power flowed necessarily from the understanding that courts could not do justice without “preventing delay, hindrance, or interference with the orderly administration of justice”166—and that courts could not expect the attendance of parties and witnesses, even pursuant to court order, without the power (or obligation)167 to also offer protection.168
Courts needed this power to operate, but they also needed other courts to recognize it. Indeed, the privilege can be understood as a rule governing the relationship of courts, whereby courts follow the rule out of a categorical imperative, respecting other courts’ dignity169 to ensure their own:
Out of the enforcement of this policy has sprung the doctrine of comity. No court will direct its process to be served upon litigants before another court where it would protect its own litigants from a like service. Every court will aid every other court by permitting attendance upon one free from the danger of service of process by another. All courts recognize this principle of immunity involved.170
A leading case from New York put it similarly: “[T]his court ought not to suffer its process to be executed in violation of the privileges of other courts . . . .”171 Moreover, the Supreme Court was emphatic in its endorsement of comity as applied to the privilege in a case where service of process in a federal case was served on a nonresident present in Massachusetts to attend state-court proceedings. The Court was asked to uphold the service of process on the ground that the federal lawsuit and the state-court proceedings were taking place in different jurisdictions, but the Court rejected this, holding that “[a] federal court in a State is not foreign and antagonistic to a court of the State within the principle . . . .”172 The privilege against service of process rests on “the necessities of the judicial administration,” the Court wrote.173 “[T]he courts, federal and state, have equal interest in those necessities.”174
These decisions have two important implications for the current impasse over courthouse immigration arrests. First, state and local courts have the power “inherent in courts” to privilege from arrest those who attend their courts on business (in their coming, remaining, and returning) as well as those people present in and around the courts.175 The letters asking ICE to stop making courthouse arrests need not be the last step taken—ICE’s refusal to stop these arrests cannot deprive courts of a power they derive simply from being courts. Second, if ICE refuses to respect the power of state and local courts concerning the privilege, once asserted, state and local courts can reasonably expect to be supported by the federal courts, if not the immigration courts, because of the federal courts’ shared interest in upholding rules that address the administration of justice and therefore must be universally enforced. This is so even though the federal courts are not identically situated, as ICE arrests have not yet become a problem for federal courts. This difference is insufficient to make the federal courts “antagonistic” to the state courts.176 That the privilege is thus universally followed177 as a matter of comity178 makes it a uniquely suitable solution to the federalism clash caused by immigration courthouse arrests.
The common-law privilege from arrest provides a rule of law that could break the federalism impasse caused by immigration courthouse arrests. This Essay has attended to the substance and grounding of the rule,179 demonstrating that state and local courts have the power to regulate courthouse arrests and in doing so, would be pursuing policy goals recognized by state and federal courts. But numerous questions for future study remain.
First, what are the procedural mechanisms by which the privilege against courthouse immigration arrests can be invoked? Perhaps the most obvious mechanism suggested by the analysis here would be for a court to issue some form of writ of protection. But might the privilege also be implemented by state or local legislative enactments?180
Second, what remedies are available for violations of the privilege (or of a writ of protection)? Certainly, the cases surveyed would suggest ICE agents making arrests in violation of the privilege might be held in contempt.181 But could a violation of the privilege also support discharge from custody,182 suppression of evidence or termination of immigration proceedings,183 or a damages lawsuit?184 Could declaratory or injunctive relief be available to prevent further violations?
Third, what is the relation between the privilege and other constitutional provisions guaranteeing individual rights185 or trial rights for civil or criminal litigants,186 or prescribing the structures of government?187
And finally, could the privilege be applied or extended to protect other government institutions by preventing arrests at probation offices, administrative courts, public legislative assemblies or offices, or government offices where benefits are sought or distributed?188
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The search for a solution to the courthouse-immigration-arrests problem requires blowing the dust off ancient treatises and delving into centuries-old English cases. But there is a good reason the existence of the privilege from arrest now comes as breaking news. The privilege receded from the body of modern law not because the doctrine fell by the way, but rather because the practice of commencing civil litigation with an arrest did.189 The privilege from arrest was firmly entrenched and undisputed in both English and American jurisprudence when the need for its application waned, and the courts moved on to busy themselves with questions concerning extension of the doctrine to the service of civil process. Arrests under circumstances in which the privilege would apply all but disappeared.190
The need to resort to ancient authority stands not as evidence of weakness in the doctrine, but rather as an attestation to how aberrational courthouse immigration arrests are. The poor instincts of those who have directed these arrests, and those who have defended them, desperate to harness local criminal systems even at the risk of harming their integrity, stand rebuked by this rule that has been “sustained by [an] almost unbroken current of authority.”191Those who have expressed outrage at ICE’s courthouse arrests and decried the harm they threaten to state and local courts, on the other hand, are fully vindicated by the privilege, its unquestioned status, and its policy justifications that echo undiminished across the centuries.
Their outrage, it seems, would have been shared by judges in every age.
Christopher Lasch is an Associate Professor at the University of Denver Sturm College of Law. His scholarship focuses on the intersection of criminal and immigration law. He expresses his indebtedness to Diane Burkhardt, whose insights and ability to procure research materials were essential to this project, and to those who read early drafts, provided invaluable encouragement, and contributed their wisdom (though any errors remaining are solely attributable to him), including: Elizabeth Stovall, Robin Walker Sterling, Jennifer Chacón, Stephen Manning, Peter Markowitz, Robert Mikos, Nancy Morawetz, James Oldham, Bruce Smith, Wendy Wayne, and Michael Wishnie. The Essay also benefitted from presentation to the faculty of the University of Denver Sturm College of Law.
Preferred Citation: Christopher N. Lasch, A Common-Law Privilege To Protect State and Local Courts During the Crimmigration Crisis, 127 Yale L.J. F. 410 (2017), http://www.yalelawjournal.org/forum/a-common-law-privilege-to-protect-state-and-local-courts-during-the-crimmigration-crisis.