In Other Media-eg New Statesman, AJE, FP, Georgia, NYT,  Azerbaijan, CSM Click here to contact us     .

By Matthew Russell Lee,  Patreon
Honduras - The Source - The Root - etc

SDNY COURTHOUSE, June 10 – When the targeting and arrest of non-citizens in and around U.S. courthouses was challenged under the First, Fifth and Sixth Amendments to the U.S. Constitution, the U.S. Attorney for the Southern District of New York has responded that it is not really a policy, that there should be no discovery because the motion to dismiss it will make is so strong.

  On May 4 amid the Coronavirus pandemic SDNY Judge Jed S. Rakoff held a telephone conference, at the end of which he projected ruling on motion by June 15 and declined to set a trial date, given the uncertainty when trials will start again.

 Now on June 10, Judge Rakoff has sued in favor of New York State. From the decision, full copy on Patreon here: "Recent events confirm the need for freely and fully functioning state courts, not least in the State of New York. But it is one thing for the state courts to try to deal with the impediments brought on by a pandemic, and quite another for them to have to grapple with disruptions and intimidations artificially imposed by an agency of the federal government in violation of long-standing privileges and fundamental principles of federalism and of separation of powers. Here, plaintiffs the State of New York and the Kings County District Attorney seek to end what they allege are the disruptions of New York courts and the intimidation of parties and witnesses caused by the decision of the United States Immigration and Customs Enforcement agency (“ICE”) to greatly increase civil immigration arrests in and around New York State courthouses... Following discovery and motion practice, the contending parties now cross-move for summary judgment on both of these claims. For the following reasons, the Court rules in plaintiffs’ favor on both claims and grants the requested relief....

SEC v. Chenery Corp. (Chenery I), 318 U.S. 80, 94 (1943) (“[I]f the [agency] action is based upon a determination of law as to which the reviewing authority of the courts does come into play, an order may not stand if the agency has misconceived the law.”)). ICE has committed precisely this error. It has effectively offered no rationale other than its misguided reliance on the Executive Order for its consequential decision to expand its agents’ authority to conduct courthouse arrests. Although the Directive itself makes conclusory references to the “reduce[d] safety risks” of conducting arrests in a place where people are screened for firearms, and the “unwillingness of jurisdictions to cooperate with ICE in the transfer of custody of aliens from their prisons and jails,” Ex. 53 ¶ 1, the record contains no explanation of how the agency balanced any such benefits against the harms of the policy discussed above. Accordingly, the adoption of the Directive by ICE, as well as less formal shift in practice and policy in 2017, were arbitrary and capricious, in violation of § 706(2)(A) of the APA. CONCLUSION  For the foregoing reasons, the Court grants plaintiffs’ motion for summary judgment with respect to Counts One and Two, and, as a direct result, is obliged to also grant plaintiffs’  requested injunctive and declaratory relief.

Specifically, the Court declares ICE’s policy of courthouse arrests, as now embodied in the Directive, to be illegal, and hereby enjoins ICE from conducting any civil arrests on the premises or grounds of New York State courthouses, as well as such arrests of anyone required to travel to a New York State courthouse as a party or witness to a lawsuit. Clerk to enter judgment." Full on Patreon here.

 Back in May Judge Rakoff asked each side questions about the common law privilege against courthouse arrest. He said, I went back last night and looked at the 2017 Executive Order and I don't see anything in there about courthouse arrests. I see anger at sanctuary police.

  Judge Rakoff continued, The government says it's not that there weren't courthouse arrests before this policy. They were rare, but few spoke up against them.

 NY State's lawyer said, We are challenging the sharp change in quantity and quality and nature of these arrests.

  Judge Rakoff asked, Are you saying that changes by the Executive Office is subject to an arbitrary and capricious standard?

  NY State's lawyer said, ICE went beyond the Executive Order; ICE is subject to the APA.

Assistant US Attorney said, It is our position that the States cannot block the federal government from arresting aliens in public places like courthouse, given the President's plenary power. I
 Judge Rakoff asked, What if ICE said state court proceedings cannot for forward if anyone there is an illegal immigrant? 

 The AUSA said, It's our position that it doesn't matter - I don't want to sound cruel, but as a matter of law it doesn't matter. ICE can go and make these arrests in public places.

  Judge Rakoff continued, As a hypo, why can't an illegal immigrant file a court case is  court with a backlog - not hard to find in New York - and thereby say they can't be arrested?

 NY State's lawyer: They could be arrested in other circumstances Inner City Press

  Judge Rakoff said, That's all I wanted to ask about, commandeering was well covered in the briefing. I was going to set a trial date, but when those will start again is unclear, even bench trial. So I'll resolve these motions worst case June 15.

 This case is State of New York v ICE, 19-cv-8876 (Rakoff).

Another case, Doe v. ICE, was filed on September 25. The initial conference was held before SDNY Judge Alison J. Nathan on November 1, 2019 starting at 10 am. Inner City Press live-tweeted it:

Judge Nathan: I think there's some difference between the schedule Judge Rakoff has you on than here... And there are different claims in that case.

Doe's lawyer Jonathan I. Blackman: We think we have quite a good chance of defeating the motion to dismiss.

Judge Nathan: You have not yet moved for preliminary injunctive relief. Do you intend to? Doe's lawyer: It depends on the timing. It's mostly a legal issue

Doe's lawyer Blackman: It's really about the courthouse arrest directive. What's happened, it's undisputed: a 17,000 percent increase in courthouse arrests since the directive came down

Doe's lawyer Blackman: Our view of the shape of the case is that discovery would be relatively limited. Document discovery should go forward despite the motion to dismiss.

 AUSA Rebecca R. Friedman: There is no reason for discovery to move forward because if Your Honor rules for us, discovery would be unnecessary. Judge Rakoff -- 

Judge Nathan: He has indicated a date he will rule by, and a tight schedule after that

 Judge Nathan: My inclination is to put you on the same schedule as you are in the Judge Rakoff case. What he does may not impact what I do... I haven't even seen the motion to dismiss yet.

 AUSA Friedman: We haven't seen any discovery request yet. Judge Nathan: If the case moves forward before Judge Rakoff, the government would bear much of the same work on discovery. AUSA: A delay is not burdensome on plaintiffs (!)

Judge Nathan: Just because the two cases have been deemed unrelated for one purpose doesn't mean there won't be overlap in factual discovery. Doe's Lawyer, Mr Blackman: That seems sensible.

Doe's lawyer Blackman: We would be happy with Judge Rakoff's schedule, it would make total sense. Judge Nathan: The government anticipate moving on standing, right? AUSA Friedman: That's right.

 Doe's Lawyer says Doe must have standing: he is afraid to go to Family Court for an order of protection when his partner is threatening to blow the whistle on him to ICE

Doe's lawyer Blackman: If this complaint does not survive in full, it will survive in some form.

AUSA Friedman: one of the claims is being brought only by organizations, not Doe. To the extent there are organizational standing issues, that claim would be [gone]

Doe's lawyer: Judge Rakoff has said he'll decide by December 3. And the government's brief is due that day... 

Judge Nathan: Judge Rakoff sometimes gives a bottom line decision, we'll just have to see...

 And Judge Nathan ruled: "Defendants' motion to dismiss is due December 2, 2019; Plaintiffs' opposition is due December 23, 2019; and Defendants' reply is due January 13, 2020. Oral argument on the motion to dismiss is hereby scheduled for February 12, 2020 at 2 p.m. The Court also adopts Plaintiffs' proposed case management plan, which will be entered separately. If the motion to dismiss pending in State of New York, et al. v. US. Immigration and Customs Enforcement, et al., l 9-cv-8876, is granted, Defendants may renew their motion to stay discovery in this case within three days of that grant."

And, "CIVIL CASE MANAGEMENT PLAN AND SCHEDULING ORDER: All parties do not consent to conducting all further proceedings before a United States Magistrate Judge, including motions and trial pursuant to 28 U.S.C. § 636(c). This case to not to be tried to a jury. Deposition due by 2/14/2020. Expert Deposition due by 2/28/2020. Fact Discovery due by 3/1/2020. Expert Discovery due by 2/28/2020. Case Management Conference set for 3/20/2020 at 03:00 PM before Judge Alison J. Nathan. SO ORDERED."