ICE’s New Courthouse Arrest Policy Set Them on a Collision Course with State Courts

On Friday, federal law enforcement arrested a Wisconsin state judge for allegedly obstructing an immigration arrest at her courthouse. The move is an escalation in the conflict between the Trump administration and local authorities over immigration policies. It also undermines the ability of judiciaries to effectively carry out their duties.

While exactly what happened is still becoming clear, FBI director Kash Patel asserted on social media that Milwaukee County trial judge Hannah Dugan “intentionally misdirected federal agents away from” a man U.S. Immigration and Customs Enforcement (ICE) was seeking to arrest in her courthouse.

ICE’s own policy changes — which dramatically increased the frequency of immigration arrests in courthouses — set federal law enforcement on a collision course with state courts. These policy changes were made despite ample evidence and clear calls from judges, prosecutors, and others that immigration enforcement in state courthouses makes communities less safe.

Though federal immigration authorities historically did not bar enforcement from taking place in state courthouses, it was a practice they mostly avoided. But in 2017, the first Trump administration changed course. According to one study by a New York-based coalition, there were 159 and 178 courthouse arrests by ICE in New York State in 2017 and 2018, respectively, compared to just 11 in 2016. Across the country, these arrests included people who were in court to get orders protecting them from domestic violence, contest traffic tickets, and even access a program for victims of human trafficking.

These arrests resulted in chaos in courthouses across the country. Chase scenes played out in courthouse hallways. People who were scheduled to appear before a judge disappeared immediately before their hearing. One incident in New York City was so violent that witnesses thought the person ICE arrested had been kidnapped.

Federal prosecutors even charged a Massachusetts judge in 2019 with obstructing an immigration arrest for allegedly enabling a person targeted by ICE to evade arrest by leaving out a different door than he entered. While these allegations were similar to those leading to the Wisconsin judge’s arrest on Friday, the Massachusetts judge was never arrested, and prosecutors ultimately dropped the charges against her.

With the dramatic increase in immigration enforcement in courthouses came substantial evidence that people who needed courts to keep them or their communities safe were choosing to avoid them. Local prosecutors reported dropping domestic violence cases, as victims saw appearing in court as too risky. Communities from Los Angeles to San Diego to Houston saw double-digit declines in domestic violence reports and applications for protective orders in 2017 and 2018.

As a result, there was broad pushback from all corners of the justice system. A group of 75 retired state and federal judges wrote to ICE in 2018 that “judges simply cannot do their jobs — and our justice system cannot function effectively — if victims, defendants, witnesses, and family members do not feel secure in accessing the courthouse.” One New York district attorney said that ICE’s courthouse operations were “compromising our ability to hold accountable perpetrators who prey upon victims from vulnerable immigration communities.” Several state legislatures and court systems responded by passing laws or adopting policies to limit courthouse immigration arrests.

While the Biden administration responded to these calls by limiting courthouse arrests, the Trump administration made a priority of walking back those limitations, issuing a new directive on “Enforcement Actions in or Near Courthouses” on January 21, its first full day in office. That current policy removed most restrictions on immigration enforcement at courthouses and is what led to ICE operating in that Wisconsin courthouse as well as numerous incidents of ICE arrests in state courthouses over the last several months.

If the government has any interest in keeping communities safe, it can heed the calls of those judges, prosecutors, and court administrators who have said clearly: Keep immigration enforcement out of courts and let judges do their jobs. Otherwise, we should expect more chaos to play out in courthouses across the country.

Douglas Keith is a founding editor of State Court Report and a senior counsel in the Judiciary Program at the Brennan Center for Justice.