From the Multnomah Lawyer: Oregon Chief Justice Enacts Rule to Keep ICE Out of Courthouses

In November 2019, Oregon Supreme Court Chief Justice Martha Walters adopted a new trial court rule prohibiting Immigration and Customs Enforcement (ICE) officers from carrying out arrests without judicial warrants in state courthouses.

By enacting UTCR 3.190, Oregon became the third state in the nation to adopt such a rule, preceded by New York and New Jersey. In Massachusetts and Washington state, lawsuits are pending, challenging warrantless ICE arrests in courthouses. Oregon’s Attorney General Ellen Rosenblum will soon file an amicus brief in support of the Washington litigation.

For state immigrants’ rights organizations, UTCR 3.190 was a victory over two years in the making. In the materials submitted to the Chief Justice and the UTCR Committee, many advocates and attorneys emphasized that the judicial system was being undermined by allowing warrantless arrests in state facilities.

“Adopting this rule protects the integrity of the state judicial process and will allow state courts to fully hold accountable people accused of a crime,” Walters said. “Arrests in courthouses have interfered with judicial proceedings and removed criminal defendants before they have been sentenced or completed their sentences. We are adopting this rule to maintain the integrity of our courts and provide access to justice - not to advance or oppose any political or policy agenda.”

To understand how UTCR 3.190 is vital to preserving the integrity of the judicial process today, it is important to understand the political moment that brought about this rule.

In 2017, emboldened by anti-immigrant rhetoric and executive orders issued by the Trump Administration, ICE began to ramp up immigration enforcement - making courthouses an increasingly common location for civil arrests.

Courthouses were excluded from the list of “sensitive locations” (such as churches, schools, and hospitals) where ICE officers are generally prohibited from carrying out arrests. Legislation sponsored by Oregon congressional members to classify courthouses as sensitive locations failed to advance in Congress.

Responding to the uptick in courthouse arrests by ICE, in April 2017, then-Chief Justice Thomas Balmer requested that ICE cease carrying out arrests in Oregon’s courthouses, describing the chilling effect the ICE presence had on “not only undocumented residents, but also those who are uncertain about the implications of their immigration or residency status or are close family, friends, or neighbors of undocumented residents.” Balmer was one of many chief justices across the country to petition ICE.

Rather than limit courthouse immigration enforcement, in January 2018, ICE issued a directive that codified the practice, suggesting it be used as a tool to carry out arrests in jurisdictions that “refuse to cooperate with ICE.” The directive also called for ICE officers to act “discreetly.”

In Oregon, plainclothes officers patrolled courthouses, often declining to identify themselves to legal observers or show warrants when making arrests. In April 2019, a defense attorney recorded on camera the arrest of his client as they left a courtroom. But for the badges hanging around the officers’ necks, they look like ordinary people - one is dressed in a plaid button-down shirt, the other in a blue polo. The attorney is audibly dumbfounded as courthouse security looks on, nobody intervening to verify the ICE officers had any warrant, judicial or “administrative.”

A survey conducted by Causa Oregon and Innovation Law Lab, two prominent immigrants’ rights organizations, found that the increased ICE presence in courthouses was resulting in individuals failing to appear at courthouses and declining to report crimes or pursue legal remedies. This is echoed in then-Chief Justice Balmer’s letter to ICE in 2017 and Chief Justice Walters’ letter in 2019 where they both cited the deterrent effect of ICE presence in our state courthouses.

The petition for the rule additionally offered many firsthand accounts of how these courthouse arrests were impacting Oregonians:

  • A minor chose not to report a sexual assault by a neighbor or seek a civil protection order for fear her undocumented family members could be deported if they had to appear in court for any reason.
  • An employee injured at work refused to pursue a legal remedy against his employer for fear that the process would expose his legal status and make him a target for arrest by ICE.
  • A victim of theft who was subpoenaed as a witness against the perpetrator agonized over the decision of whether to not appear and be held in contempt of court or to testify and risk arrest by ICE.
Accounts like these form the backdrop for UTCR 3.190, which plainly states: “No person may subject an individual to civil arrest without a judicial warrant or judicial order when the individual is in a courthouse or within the environs of a courthouse.” Environs include public entryways, sidewalks, driveways, and parking areas intended to serve state courthouses.

“Since the first day of the Trump administration, ICE has terrorized immigrant communities across the country, even entering into sensitive locations like courthouses and places of worship,” said Representative Earl Blumenauer. “I’ve advanced legislation to prohibit this type of behavior and humanize immigration policy nationally. I’m pleased that the Oregon Supreme Court is leading the way by preserving the sanctity of our courthouses.”

Courthouses are the very embodiment of our justice system. Whether an individual comes to court to stand trial for a crime, to support a loved one at a difficult time, or to seek a remedy for a wrong committed against them, all should feel secure in a courthouse.

The new rule is an important first step in ensuring Oregon’s courthouses are open to all who seek justice. The next step will be holding ICE accountable if the rule is tested.

Victoria Bejarano Muirhead and Roberto Gutierrez are law students at Lewis & Clark. Until recently, they worked at organizations that were part of the coalition that advocated to keep ICE out of Oregon’s courthouses. Victoria was Director of Strategic Initiatives at Innovation Law Lab and Roberto was Policy Director at Causa Oregon.

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