There is a strong policy argument against ICE, Immigration and Customs Enforcement, arresting people at a courthouse. It creates an extremely strong disincentive for defendants, witnesses, complainants, to show up. While it may not be a big deal to appear as required for jumping a turnstyle, if the consequence is getting held in ICE custody for a year before being deported to a country you left when you were three months old, the incentives for appearing are very different.
But this is a policy concern, even if it eludes a great many people. It is not the law. Contrary to popular belief, ICE gets to arrest people wherever they are, courthouses included. This seemed to elude lawyers in Brooklyn.
Nearly 100 defense attorneys staged an impromptu protest ouside a Brooklyn courthouse Tuesday after a lawyer’s client was arrested by federal authorities on an immigration charge.
When Rebecca Kavanagh walled [sic] into Judge Rosemarie Montalbano’s courtroom, she was warned to speak to her client immediately because U.S. Immigration and Customs Enforcement agents were present and prepared to detain him.
Moments later, ICE agents detained Genaro Rojas-Hernandez, 30, who was in court for a misdemeanor domestic violence charge.
It was not immediately clear what the immigration issue was or what country Rojas-Hernandez was from.
Absent information, it’s impossible to tell whether Rojas-Hernandez is one of those sympathetic people whose anecdotes can be found at the top of a sad story or some bad dude. No matter.
But what was clear is that many defense attorneys view the courthouse as a safe haven that is off limits on issues involving immigration, and were banding together to voice their displeasure.
“Stay out ICE,” and “Shame on you,” the lawyers shouted, while others held makeshift signs that read “F–k ICE,” and “Go away.”
Whether or not courthouses should be “sanctuaries,” at least from ICE given that they obviously aren’t from all the other crimes for which defendants appear, it’s rather curious that defense attorneys would come up with this notion.
That criminal defense lawyers decided to “voice their displeasure” is perfectly fine, if not laudable, provided they didn’t leave their clients to the tender mercies of the court in their absence, marching in circles holding “F–k ICE” signs as cases were called. It’s not clear to whom they were voicing it, since this was outside the courthouse and, well, nobody with any influence over matters would hear.
But airing one’s grievances is an American right and duty. The question is why they thought their turf was off limits to ICE.
“They arrested him and put him into a restricted area. The courtroom’ s sergeant pushed me and the court officers kept me away,” said Kavanagh, who asked the judge to set bail for her client to keep him out of ICE custody.
Well, sure, that’s how arrests happen. Contrary to what you see on the telly, defense lawyers do not get to dictate to the police or federal agents how and when they get to see their clients. A lawyered-up client may not be able to give a statement, but that isn’t the same as having unfettered access. And Kavanagh wasn’t happy about it.
The judge declined to set bail but instructed the court officers to allow Kavanagh to speak to her client.
“The sergeant ignored the judge’s directive,” Kavanagh said. “It was totally inappropriate.”
It seems unlikely that it happened this way, and far more likely that the sergeant, like the lawyer, had no say after the defendant was in ICE custody rather than theirs. This is another policy problem with ICE arresting people in a state courthouse. Who’s got jurisdiction? Who’s in charge of what happens inside a state courthouse? Kavanagh’s persistence presented a conundrum.
A statement from the Office of Court Administration said several legal aid attorneys escalated the situation by “purposely interfering in an arrest situation.”
“Only for the professionalism and restraint of the court officers involved, there were no injuries and the attorneys were not arrested for obstructing governmental administration,” the statement said.
The implicit suggestion is that Kavanagh wasn’t about to let the ICE agents take her client into custody, deny her the ability to speak with her client, without a fight. Did she interfere with his arrest by ICE agents? The thought of it brings a smile to my face. At the same time, she’s lucky they didn’t cuff her, beat her, arrest her for obstruction.
Historically, courthouses were off limits. When a defendant wanted on a warrant in one case appeared in court on another, the cops would be there, but would never be so bold as to forcibly arrest him in the courtroom. It just wasn’t done. The cops might inform the court officers of their warrant, or they might arrest him after he passed through the courtroom doors into the hallway, but in the courtroom? Never.
This isn’t because the law forbids it, but a matter of respect for the judge, for the court. As reflected here, that courtesy is gone.
Was a protest the right response? Protest may be cathartic, but not very effective. And even if there was a state law, a state court order, prohibiting arrests in the courthouse, it would not constrain federal agents. What would they expect to happen, a shootout between the ICE guys and the court officers over their conflicting authority?
It’s a foolish policy to have ICE make arrests in a state court. And given that courtrooms had historically been safe havens, even if the hallways were not, it’s unsurprising that Kavanagh was taken by surprise, and pushed the envelope on behalf of her client. And frankly, when in doubt, a criminal defense lawyer putting herself at risk for her client is damn admirable. But it is not the law. It should be, but it’s not.
Update: Brooklyn Acting District Attorney Eric Gonzalez issued this statement: