Updated: Jan 8, 2021
Historic Law Banning ICE Arrests at Colorado Courthouses Is the Culmination of Years of Work by a Broad Coalition of Forces
On March 23, Governor Polis signed Senate Bill 83, a historic law that protects people’s right to access Colorado’s judicial system without interference from civil arrest. It is now illegal under Colorado law for U.S. Immigration and Customs Enforcement (ICE) to arrest someone inside or in the vicinity of a courthouse, or while the person is going to or coming from court or probation. This law is the culmination of four years of work that has included grassroots advocacy, cutting edge legal theories, and ultimately the voices of a broad coalition including the CWBA.
In 2017, as a new anti-immigrant regime took hold in the federal Executive Branch, attorneys from the Meyer Law Office—a Denver immigration, criminal defense, and civil rights firm—captured videos of undercover ICE agents arresting individuals inside Colorado’s courthouses. The images of these ambushes garnered local and national attention, shocking members of the legal community and the general public. The videos showed ICE agents, usually in plainclothes and refusing to identify themselves or produce a valid warrant, arresting people in court hallways and entryways, often through the use of force.
Hans Meyer and Julie Gonzales—then Policy Director at the Meyer Law Office who eventually sponsored SB 83—worked to hold public forums on the issue together with community organizations. The testimony of immigrant community members whose trust in courts and local government had been shattered helped raise awareness in the Denver City Council of the harm caused by ICE courthouse arrests, and highlighted the acquiescence to and cooperation with federal immigration enforcement by actors in the state and municipal legal system.
The people targeted by ICE at courthouses included many community members charged in low-level traffic and criminal cases, who appeared for court to resolve their cases and accept responsibility for their actions, comply with required court appearances, or avail themselves of their constitutional right to trial. The brutal arrests predictably had a negative impact on the administration of justice in Colorado, as they terrorized those who complied with court appearances, prevented victims and witnesses from coming to court, deterred immigrant community members from calling law enforcement to report crimes, and chilled people from paying traffic tickets, obtaining records from the court, or seeking assistance in other legal matters.
As awareness of the practice spread throughout the nation, judges, local governments, and advocates requested that ICE stop arresting people who sought access to the justice system. ICE rejected these requests, instead insisting that courthouse arrests were a necessary part of its deportation machine, especially where local officials refused to be part of it. State and local governments and advocates pushed back further through court policies, litigation, and state and local laws.
These actions were aided by a cutting-edge legal theory developed locally. In October 2017, Professor Chris Lasch, who runs the DU Immigration Law and Policy Clinic, published a law review article discussing a common law privilege, developed by English courts more than 500 years ago, against courthouse civil arrests. Federal courts have recently acknowledged the privilege in lawsuits against ICE. See Ryan v. ICE, 382 F. Supp. 3d 142 (D. Mass. 2019); New York v. ICE, --- F. Supp. 3d ----, No. 19-cv-8876(JSR), 2019 WL 6906274 (S.D.N.Y. Dec. 19, 2019); Washington v. DHS, --- F. Supp. 3d. ----, No. C19-2043 TSZ, 2020 WL 1819837 (W.D. Wash. Apr. 10, 2020). Key to the application of the privilege is understanding that ICE arrests are connected to immigration removal proceedings, which are civil, not criminal, in nature.
Professor Lasch worked with Senator Gonzales and the Meyer Law Office to draft SB 83, which was introduced in the Colorado Senate in January. We then built a broad coalition to advocate for the legislation to protect the rule of law and access to justice in Colorado. This coalition included bar associations, the indigent and private criminal defense bar associations, elected prosecutors, victim advocacy groups, and immigrants’ rights organizations.
More than 30 organizations signed a letter in support of the bill. More than 20 witnesses stayed late into the night to testify in support of the bill in the Senate Judiciary Committee. No one testified against it, and the bill passed the Senate on a bipartisan vote. A similar scene took place in the House Judiciary Committee, where CWBA Public Policy Committee member Ellen Giarratana was one of many witnesses providing powerful testimony. Ellen, Giugi Carminati, and Jen Carty were among the CWBA members who helped secure and voice this organization's essential support for the bill.
In becoming the third state to ban the practice by legislation, Colorado now has the most comprehensive prohibition on civil courthouse arrests in the nation. The law, codified primarily at C.R.S. §§ 13-1-401 to 405, includes the following provisions:
The law prohibits civil arrests of people at courthouses, in the surrounding areas, and going to and coming from court proceedings.
Court proceedings are defined to include probation and pretrial services appointments, as well as the first court visit to file a case.
When entering courthouses, law enforcement officers must present credentials and state the purpose of their visit, and courthouse security must maintain a record of that information.
Remedies for violations include a cause of action for false imprisonment, a contempt finding, and a writ of habeas corpus.
To ensure that the law accomplishes its goals, education and enforcement will be crucial. The Meyer Law Office invites others in Colorado’s legal community to join our efforts to educate the legal and broader community about the new requirements. And should ICE continue to carry out its courthouse arrests, we stand among a contingent of attorneys who are ready to uphold the new law in court.
One person whose voice contributed to the success of Senate Bill 83 is Paulina Martinez, who bravely shared her story in the media and the Senate Judiciary Committee. Paulina was arrested by ICE agents outside the Littleton Municipal Courthouse after she and her partner showed up together to seek dismissal of a disorderly conduct charge. She had a four-month-old baby and toddler at the time. Paulina’s story and similar ones have regularly come in to the Meyer Law Office and other immigration and criminal defense firms for the past four years. One man feared he was being kidnapped when plainclothes ICE agents arrested him inside the Denver courthouse in December. They tased him multiple times, still refusing to identify themselves. Also in December, a woman was in the security line at the Jefferson County courthouse with her husband, when ICE agents pulled him out of her arms to arrest him.
Colorado’s new law seeks to put an end to these stories, to the damage that ICE courthouse arrests have done to our system of justice, and to the crisis of trust in immigration communities in relation to our local and state courts. Years of work by legal and community advocates have resulted in Colorado speaking with a unified voice against this threat to our immigrant community and to the rule of law in our state.
Arash Jahanian is the Director of Policy and Civil Rights Litigation at the Meyer Law Office. His practice includes immigrants’ rights policy at the state and local level, including to help pass Senate Bill 83, and litigation on behalf of victims of employment discrimination, wage theft, and governmental abuse. Arash served as the president of the Colorado LGBT Bar Association and Chair of the Denver LGBTQ Commission. He is also on the board of the Interfaith Alliance of Colorado and the nominating committees for the Denver Citizen Oversight Board and ACLU of Colorado.