Trump Policy Challenges Courthouse Immigration Arrest Precedent

Summary

• In early 2025, the new Trump Administration issued directives broadly facilitating civil immigration arrests in state courthouses by administrative warrant.
• This upturned nearly 250 years of precedent recognizing a privilege against such civil arrests on courthouse grounds.

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In the summer of 2021, I found myself presiding over a felonious assault trial when, for me at least, the issue was thrown into sharp relief. It was a shooting case, like dozens of others pending on my criminal docket at any given time. Which is to say, serious charges involving important questions of public safety; but otherwise typical of the work we do on that side of the caseload. On the night in question, the Defendant was just 30 days post-release, having served 16 years in prison for an earlier violent crime. He was not rehabilitated. He was carrying a gun that he was prohibited from having. He was a passenger that night, when his car got into a minor fender-bender. The Defendant exited the vehicle and immediately opened fire upon the two complete strangers sitting in the other car. He reportedly shouted racial epithets while emptying his clip, as the victims jumped from their own car and tried to run. The Defendant’s bullets struck one of the victims from behind. In missing the other victim, the Defendant sent a handful of rounds down range into an apartment complex. Thankfully, and just by dumb luck, nobody else was hurt.

At trial, there was plenty of forensic evidence placing the Defendant at the scene and an eyewitness who had watched the entire incident unfold from about 100 yards away. But the only witnesses close enough to positively identify the shooter by his facial features at trial were the two victims themselves. And they were terrified to come to court. Not because of the shooter, but out of fear they would be deported if they came forward. They were undocumented restaurant workers, coming home from their shift on the night in question.

Whatever the circumstances by which they first came to this country, they had been here for years when suddenly fired upon as they made their way home from work. And even back in 2021, despite the tenuous possibilities of specialty visas or administrative leniency, they were worried that coming to court—even as victims performing a civic duty—could trigger their own forcible removal from the U.S. The prosecutor half-expected them to disappear in the final days before trial. But despite their misgivings, the victims ultimately came to the courthouse and testified. And on that basis, the jury convicted, and the Defendant is now serving another long prison sentence as you read this. And you simply cannot convince me that we would be safer as a society had those two witnesses instead been grabbed in the hallways of the courthouse and sent to Mexico, thereby freeing the Defendant to remain in our midst.

The Long-Standing Privilege Against Civil Arrest in Courthouses

All of this was front of mind when I read on January 22, 2025, that the new Trump administration, on their second day back in office, had just issued directives broadly facilitating civil immigration arrests in state courthouses by administrative (rather than judicial) warrant. This upturned nearly 250 years of precedent stemming from English and early American common law, recognizing a privilege against such civil arrests on courthouse grounds. As the U.S. Supreme Court explained when affirming this common-law privilege in 1916, “Courts of justice ought everywhere to be open, accessible, free from interruption, and to cast a perfect protection around every man who necessarily approaches them.” Not only should every litigant coming to court be “free from the fear of molestation or hindrance,” but “[h]e should also be enabled to procure, without difficulty, the attendance of all such persons as are necessary to manifest his rights.” As the U.S. Supreme Court concluded, American courts going back to the early 19th century have thus “followed this rule, applying it to plaintiffs, as well as defendants, and to witnesses attending voluntarily as well as those under subpoena.”

In 2017 and 2018, however, the first Trump administration began chipping away at this precedent in what appeared to be a series of test cases. In response, 68 retired judges from 23 states, including former state supreme court justices, as well as trial and appellate judges from both federal and state systems, issued a j oint public letter condemning the practice of civil immigration arrests in courthouses. These judges, including notable conservatives as well as progressives, hailing from places as diverse as Texas and Massachusetts, Alabama and California, noted that ICE had arrested “survivors of domestic violence, persons disputing traffic tickets, and parents seeking to protect their children from unsafe living conditions. ICE has arrested people in criminal court, family court, and even a diversion court for victims of human trafficking.” As the judges explained, “[t]ogether we have presided over thousands of cases in trial and appellate courts. We know that judges simply cannot do their jobs—and our justice system cannot function effectively—if victims, defendants, witnesses, and family members do not feel secure in accessing the courthouse.”

Citing similar concerns, federal courts enjoined civil immigration arrests in New York and California state courthouses in the waning days of the first Trump term. By then, multiple state legislatures had also passed laws prohibiting such civil courthouse arrests. Explicitly citing the Tenth Amendment and the anti-commandeering doctrine, another handful of state courts barred civil arrests on courthouse grounds by procedural rule.

Due Process Is for Everyone

All of which made the returning administration’s broad and contrary new directives in January 2025 more alarming. By the time I started drafting local rules several days later to prohibit civil arrests in our own court, the first of these new civil immigration arrests were being reported at other courthouses around the country. And by the time our entire court formally adopted those rules five weeks into the new administration, ICE had already arrested a defendant in our building, steps from the courtroom where his hearing had yet to take place.

There’s no telling how many civil immigration arrests have occurred in other courthouses around the country since then. Massachusetts alone reported 614 civil courthouse arrests this past year. But whatever the final tally turns out to be, those raw numbers cannot account for the broader chilling effect these arrests have on immigrant communities that no longer come forward at all, because they no longer see courts as safe places for redress.

State trial courts are the front line for American due process. We bear unique responsibilities under the Fifth and Fourteenth Amendments to ensure procedural fairness and just outcomes on the most fundamental questions of public safety in our communities. We can’t do that critical job if victims, witnesses, and defendants are too scared to come forward. To put it directly, if your family member was falsely accused of a crime, you would want the exculpatory eyewitnesses to testify—wherever they came from and however they got here. And if you really are against human trafficking, or child labor abuse, you should want to remove whatever barriers prevent victims in those marginalized communities from shining a spotlight on the perpetrators of their misery. If you have any decency at all, you’ll want the mother of a murdered child to be able to come to court for the killer’s sentencing. And if you happen to be sitting in an apartment down range from a minor fender-bender when a stray bullet barely misses your head, you’ll likely want that shooter behind bars. Simply put, due process is for everyone.

Lawyers and judges enjoy positions of prestige and authority. Use that power now. Speak up. Preserve access to our courts, or the due process lost may just be your own.

Endnotes

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Carl Aveni

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