Are Courthouses Sanctuaries? (Update)

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:

35 thoughts on “Are Courthouses Sanctuaries? (Update)

  1. wilbur

    The “Fuck ICE” sign certainly swayed me to their view.

    I saw an attorney once get verrrrry upset when his client got unexpectedly arrested in a courtroom, so upset he was ready to throw hands with the officers. Luckily a couple of his friends grabbed him and pulled him away. It would not have ended well for him.

    1. SHG Post author

      I can well understand the anger. I can also well appreciate having friends in the courtroom.

      Had there been more info on who these protesting attorneys were, it might have influenced my thoughts a bit. It’s become increasingly difficult to ignore that some CDLs are kinda . . . unduly emotional.

  2. Pedantic Grammar Police

    I wish that other countries would adopt the US approach to enforcing immigration laws. When I go to the nice parts of Europe, I can only stay for 3 months without a visa. It’s so unfair; why can’t I just stay there as long as I want? Why can’t I go get a job in Switzerland or Luxembourg and live there? Why can’t I go there and commit crimes, and then continue to stay? And why is it so much nicer there than here? Why are wages higher there, and why do they have a thriving middle class while ours shrinks?

    Enforcement of immigration laws is just not right. Fortunately I live in the land of the free, where immigration laws are just words written on paper, and anyone can come here and stay as long as they want. Unemployment is at a 16-year low, but wages are stagnant. Obviously this is completely unrelated to the fact that illegal immigrants work for lower wages than citizens.

    1. SHG Post author

      This post is not an opportunity to debate the merits of open borders or restrictive US immigration policy. For better or worse, the law is what it is. There are good arguments both ways, sad stories on both sides, and far more controversy than my comments can handle. So I posted your comment only for the purpose of saying: not here. Not now. And that’s that.

      1. Pedantic Grammar Police

        I’ll say it this way then. If federal agents are arresting illegals and deporting them, in the courtroom or anywhere else, more power to them, and I hope to see more of that. The sad tears of lawyers who don’t want to see the law enforced are a pleasant gentle rain. May their tears flow freely throughout the land!

        1. SHG Post author

          And it’s still not that simple. I want to see law enforced. I want to see bad law changed. And I want to see sound policy prevail. Entiende?

  3. REvers

    I’ve had clients arrested in the courthouse, but never, ever in the courtroom. The officers have always patiently waited for us to complete our business before the judge. They almost invariably inform me that they have a warrant, so I won’t be taken off guard. This is the way things should be done in a civilized society.

    I’m glad I’m getting old. Maybe I won’t be around to watch what we devolve into.

      1. Nick Lidakis


        Re “given that courtrooms had historically been safe havens…”, do you think that courtesy is gone now since some judges in the past have allowed immigrants to escape through their chambers back doors?

  4. Ahaz

    The rules of engagement have changed to our detriment. The “end” is the only thing that matters, the means is just….a way. Excessive zealousness by our Law Enforcement is problematic and in some cases a real threat.

    1. Pedantic Grammar Police

      In the case of illegals in the courtroom, is it excessive zealousness, or is it a reaction to judges who break the law? I would prefer to see those judges prosecuted, but that will probably never happen. Under the circumstances, arresting them in the courtroom is reasonable and correct.

        1. Pedantic Grammar Police

          If it isn’t illegal for a judge to sneak illegals out the back door to evade arrest, it should be.

      1. Patrick Maupin

        “Those” judges? Who, exactly, besides Monica Herranz, who, btw, was cleared of knowingly letting an illegal alien escape ICE’s clutches?

        And is grammar really more important than the facts?

        1. Pedantic Grammar Police

          “And is grammar really more important than the facts?”

          Of course it is! Nothing is more important than grammar. How could you ask such a question. I am literally shaking.

  5. Rebecca Kavanagh

    Your article is written without any understanding of the rules that govern ICE making arrests in courthouses. NYS court officers are not allowed to assist ICE agents making arrests, which is what they did here. They also granted ICE agents access to a restricted area of the courthouse where they held my client. There is now an OCA investigation into the court sergeant and officers who assisted ICE in making this arrest, and specifically his and their allowing the ICE agents to use the restricted area of the courthouse where they pulled my client and refused access to me, by pushing me out; as well as their use of physical force against me.

    You doubt my account, but believe the statement put out by the president of the Court Officers union who was not there. Perhaps you should speak to the Judge, because I went out to speak to my client at her direction. It was everyone’s clear understanding that we would then re-enter the courtroom, and then the case would be called. It would only be after the case had been called that ICE would arrest my client (presuming that he were not held in NYC custody, if she decided say to set bail at my request). I have had clients arrested in the courthouse many times by the NYPD and other agencies. It is an orderly process. We are given an opportunity to speak to our clients and invoke our clients rights before they are arrested.

    The agents on Tuesday did not identify themselves as ICE to either myself or my client. While I obviously realized who they were when they jumped on my client, he didn’t and they asked him questions before I was given a chance to speak to him (which only happened because the judge rushed off the bench to make sure he wasn’t whisked away), which he answered, without telling him who they were.

    If you don’t see how that’s a violation of his due process rights than I don’t know what to tell you. If you think it’s lucky I wasn’t beaten, I also don’t know what to tell you. If any of this makes you “smile” then I don’t understand anything other than you lack empathy and are a misogynist piece of trash.

    1. SHG Post author

      The thought that brought a smile to my face was your zealous efforts on behalf of your client, that you were willing to face down the ICE agents, perhaps even be beaten, for your client. I was praising you. That was apparently clear to everyone but you.

      Rather than take the obvious reading, you chose to read it defensively. Rather than merely ask whether your bizarre and strained reading was intended, you went on the attack with “you lack empathy and are misogynistic(?) piece of trash.” Even with your reading, I have no clue how you get to “misogynistic,” outside of some pretty disturbing projection.

      As for the statement that I “believed,” that was a statement by the Office of Court Administration, not the Court Officer’s Union. There’s a big difference, and you ought to be capable of telling the difference.

      There is nothing in the article that reflects the court officers “assisting” ICE in making the arrest. They didn’t interfere, and they prevented violence from erupting, which is their responsibility in the courtroom. If there was something more they did, that wasn’t reflected in the article, then it would have been helpful for you to provide that additional information. I don’t “doubt” your account at all. Your quotes didn’t contribute much by way of information.

      Rather than look for reasons to twist yourself into the victim of misogyny, you would have done better to contribute substance and recognize when someone is praising about you.

      1. Miles

        I keep thinking we’ve hit bottom on the female insanity front, with women empowered to scream “misogynist” whenever any guy says, or is perceived to say, something that isn’t gushingly flattering or how fierce, strong and fabulous. But it just keeps finding new depths.

        And people refuse to say anything, go near women, because they can’t deal with their craziness. And women don’t understand why. Now I’m constrained to believe that Kavanagh somehow did something to fuck this up for her client, because she’s obviously got serious issues. Was that what she hoped to accomplish?

        1. SHG Post author

          For an old school feminist like me, this is a untenable situation. You can’t treat women equally if they are going to react to every slight, real or perceived, having nothing to do with their gender by screaming sexism.

          Years ago, some of my lawprof friends explained to me that they felt compelled to keep their mouths shut as some of the female prawfs began finding sexism in everything. They realized that if they called bullshit, they would get slammed as misogynists. They figured it would eventually burn out and everyone would get back to reality. They were wrong and it’s not only gotten worse, but devolved into utter chaos. I hear from a lot of guys who want nothing to do with women. They just don’t need the grief.

      2. Shadow of a Doubt

        I do not believe I have ever seen you so restrained in dealing with such a ridiculous post, I can only conclude it is the misogyny of reduced expectations for women that caused you to be so polite to this shrieking harpy instead of ripping her a new one.

        1. SHG Post author

          Her bizarre taking of offense notwithstanding, she wasn’t the bad person in the post, and I didn’t want to take her to task after having praised her zeal. That said, she’s persisted in pushing this despite my efforts.



          Makes it very hard to be nice when someone insists on being an asshole.

          1. Anon

            I saw the tweet, and came here ready to pounce on you for being a misogynist. Now that I’ve read the posts, you said nothing inappropriate and she comes off looking very badly.

            There was nothing gender-related in your writing, and her calling you a “misogynistic piece of trash” was baseless and offensive.

            1. SHG Post author

              From what I’m now hearing about Kavanagh, I should have Rule 1’d her. Instead, I tried to be nice. No good deed.

          2. Robert

            Apparently she considers it okay to throw around the word “misogynist” for the flimsiest of reasons. Then she acts surprised if anybody takes exception to that tendency of hers.

            I was reading along her comment, ready to try to give her the benefit of the doubt, but then . . . that last sentence. Ug.

    2. Suzi

      This is not okay. You were treated like a lawyer and you reacted like a hysterical crazy woman. I’ve had it with women looking for reasons to turn everything into sexism and themselves into a victim. This is disgraceful.

    3. Pedantic Grammar Police

      I feel your pain. I’ve done this exact same thing before; getting upset about something I don’t fully understand, going off half-cocked, and posting embarrassing garbage on a public forum, and then it is there for everyone to see, forever. My sympathies.

  6. Sotted_Owl

    I know I’m late for this, but doesn’t a judge have final authority over who may be present in the courtroom? Could not the judge order the ICE agents out until the scheduled proceeding was concluded?

    I realize that this blog is not here for educating us laymen, so I understand if you don’t have the time or desire to address this.

    1. SHG Post author

      It’s a fair question and a pretty decent point. I believe (without researching the question) that the judge could order the ICE agents out. The judge didn’t do so, but whether that’s because the judge was surprised by it, unclear what conflicts would arise from an exercise of authority or concerned about another issue, is unknown.

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