State Courthouses in the ICE Age

In late April, the arrest of Milwaukee County Circuit Court Judge Hannah Dugan made national news. Her arrest highlights both the Trump administration’s change in federal immigration policies and its expansive interpretation of federal obstruction and harboring laws — developments that are likely to affect a wide array of state employees and local employees.

Dugan’s Arrest

According to reports, federal agents from agencies including Immigration and Customs Enforcement (ICE), the Drug Enforcement Administration (DEA), and the Federal Bureau of Investigation (FBI) entered Dugan’s courtroom with an administrative warrant — a warrant issued by an agency, rather than a court, and without a probable cause requirement — seeking to arrest and detain a man appearing before Dugan in a domestic violence proceeding. The man, Eduardo Flores-Ruiz, is alleged to be unlawfully present in the United States, and federal officials are seeking his removal.

Learning that the agents lacked a judicial warrant to conduct the arrest, Dugan referred the agents to the chief judge of the courthouse. Witnesses recounted that Flores-Ruiz later left Dugan’s courtroom through a private exit, returning to the public hallway and elevators. A DEA agent accompanied Flores-Ruiz on the elevator and communicated the news of his location to other members of the arrest team, who arrested him after a foot pursuit outside of the courthouse.

Dugan was arrested and charged despite the arrest of Flores-Ruiz. Her alleged crimes are obstructing or impeding a federal departmental process and concealing a person from arrest. This is not the first time that a state court judge has faced federal criminal charges for alleged interference in an immigration enforcement action. The last (and apparently only other) time was during Donald Trump’s first term. 

The pre-Trump enforcement policies acknowledged tradeoffs inherent in law enforcement. While allowing agents to enforce federal immigration law everywhere can certainly facilitate their mission, it can do so in ways that undercut other important legal and policy goals. Immigration enforcement near schools can disrupt the education of U.S. residents, including citizen children, when their family members or other members of their community are fearful of deportation. Immigration enforcement in or near courthouses has a negative effect on the operation of those courts, since noncitizens may be chilled from coming to the courts to serve as critical witnesses in criminal prosecutions and civil cases. 

The Trump administration’s rescission of the sensitive area guidance allows, and indeed encourages, federal immigration agents to enforce immigration law anywhere and everywhere despite those downsides. Arrests can occur even when federal enforcement goals could be served without accessing these sites and even when enforcement at these sites undermines important state policy considerations. 

Administration officials have made clear that they intend to use courthouse arrests to undercut the efforts of so-called “sanctuary” states and cities — those jurisdictions that have tried to minimize enforcement cooperation with ICE within the limits of federal law. The president himself has accused state and local officials who decline to cooperate voluntarily in federal efforts as engaging in “lawless insurrection” against federal supremacy in a recent executive order. Arrests of noncitizens at courthouses in sanctuary jurisdictions not only undermine those states’ administration of justice in particular proceedings, but also subvert the broader policy preferences of these states when it comes to the appropriate balance between immigration policing and other objectives.

During the first Trump administration, courthouse enforcement prompted communications from state officials asking the administration to reconsider these policies. The administration disregarded those requests. Last month, a bipartisan group of former judges sent a letter to Attorney General Pam Bondi criticizing Dugan’s arrest. The arrest shows that this time around, not only does the administration expect states to prioritize federal immigration enforcement over their own laws and policies, but judges who fail to do so could face criminal consequences.

Expansive Interpretations of Federal Criminal Laws

This leads to the second major development evinced by Dugan’s arrest: The Trump administration likely plans to rely on expansive interpretations of federal criminal laws to threaten and criminally punish those who disagree with its immigration policies.

The charging of Dugan under an obstruction code, for example, relies on a novel and expansive understanding of what it means to obstruct an administrative proceeding. Notably, the Supreme Court recently held that a similar, related provision of the federal criminal law could not be used to convict participants in the January 6, 2021, attack on the Capitol for obstructing an official proceeding. Yet Trump officials now take the position that in declining to facilitate a courtroom arrest by agents who lack judicial warrants, Dugan has obstructed an administrative proceeding. 

Tom Homan, Trump’s designated “border czar,” has also made plain his intention to encourage federal prosecutors to use similar harboring and concealment charges against a broader array of state and local officials who fail to cooperate sufficiently with federal enforcement efforts. Homan’s threats of criminal prosecution followed earlier statements by acting deputy attorney general Emil Bove encouraging federal prosecutors to criminally charge state and local officials who “fail to comply with lawful immigration-related . . . requests,” suggesting that even where the federal government lacked legal power to require state or local action, any failure to fulfill ICE requests could and should be treated as criminal. And when Wisconsin Gov. Tony Evers recently sent a memorandum to state employees outlining the correct procedures under state law for responding to ICE agents requesting information, Homan reiterated threats of possible criminal prosecutions, including against Evers, prompting a fierce response from the governor. 

The Supreme Court has already rejected expansive interpretations of federal anti-harboring laws in other contexts. But it appears the administration continues to read those and other federal criminal statutes quite expansively, and is willing to use the threat of criminal prosecution against a broad array of state and local (not to mention federal) officials.

Turning Up the Pressure on State and Local Officials

The ongoing struggles over courthouse immigration arrests and the legitimacy of expansively interpreting federal criminal law to target state officials are part of a larger effort by the Trump administration to pressure state and local officials into enforcing federal immigration laws. Federal law does not, in fact, require state and local government officials to expend their own resources to enforce federal immigration law.

What Congress has done is empower state and local officials to obtain information from the federal government about a person’s immigration status. In the same provision, Congress also has barred the enactment of any law that prohibits or restricts any governmental entity from maintaining; sending to the Department of Homeland Security; or exchanging with federal, state, or local entities information about a person’s immigration statutes.

So-called “sanctuary laws” — which are, in fact, a diverse assortment of laws and policies at the state and local level — generally do not violate these federal requirements. Such laws may, for example, prohibit the collection of information about the immigration status of residents with whom state officials come into contact, but such information collection is not required by federal law. Other laws may prohibit state officials from honoring federal requests to state officials to detain noncitizens pending further federal actions; again, these prohibitions have strong grounding in law. Not only does federal law not require such voluntary assistance, but courts actually have found that compliance with detainer requests violates the Fourth Amendment rights of the individuals detained.

While it is possible that Congress might one day expand the requirements placed on state and local officials to cooperate in immigration enforcement efforts, it has not yet done so. Even if Congress were to act, its ability to impose affirmative enforcement obligations on state and local officials is limited by the Tenth Amendment. And many courts (though not all) have concluded that the president cannot terminate general federal law enforcement funding to states and localities simply because they decline to embrace new immigration enforcement duties at the request of the executive branch.

In late April, the arrest of Milwaukee County Circuit Court Judge Hannah Dugan made national news. Her arrest highlights both the Trump administration’s change in federal immigration policies and its expansive interpretation of federal obstruction and harboring laws — developments that are likely to affect a wide array of state employees and local employees.

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At the end of the day, the administration’s new approach to courthouse arrests is significant beyond signaling a sea change in how federal law enforcement agents act when they are in and near state courts. It must also be understood in the context of the administration’s broader assault on state and local governments that do not embrace a maximalist vision of their legal obligations to cooperate with federal immigration enforcement. And it means even minor and lawful deviations from its immigration enforcement agenda may be subjected to the administration’s expansive interpretation and selective application of federal criminal law.

Jennifer M. Chacón is the Bruce Tyson Mitchell Professor of Law at Stanford Law School.

Suggested Citation: Jennifer M. Chacón, State Courthouses in the ICE Age, Sᴛᴀᴛᴇ Cᴏᴜʀᴛ Rᴇᴘᴏʀᴛ (May 22, 2025), https://statecourtreport.org/our-work/analysis-opinion/state-courthouses-ice-age