Judge Weighs Whether Colorado Can Restrict ICE From Warrantless Arrests

By: Michael Karlik | Colorado Politics

A federal judge heard testimony on Thursday from multiple noncitizens who were arrested by immigration officers in Colorado this year, and arguments from their attorneys that U.S. Immigration and Customs Enforcement is violating the legal standard for conducting warrantless arrests.

The ACLU of Colorado and other law firms have asked U.S. District Court Senior Judge R. Brooke Jackson to issue a preliminary injunction holding ICE to the requirement in federal law that warrantless arrests only occur when officers have probable cause to believe someone is in the country illegally and they are a flight risk.

“Masked, militarized ICE agents with flak jackets and long rifles are terrorizing neighborhoods across Colorado, ignoring their duty to obtain warrants so they can meet arbitrary government quotas,” argued plaintiffs’ attorney Kenzo Kawanabe.

Jackson, a Barack Obama appointee, had several pointed questions for each side at the outset of the hearing. He wondered whether the named plaintiffs had standing to pursue the case as a proposed class action, as they had already been arrested, released and, in the government’s view, were unlikely to be arrested again.

“Every non-documented, non-immigrant-status individual — and you say there are over 100,000 of them in Colorado — every one of those people is subject to arrest. But does ‘subject to arrest’ give you legal standing?” Jackson asked.

At the same time, Jackson repeatedly pressed the government about an issue raised during a virtual conference on Oct. 24. At the time, the government informed Jackson that ICE’s top legal officer had advised all ICE employees of the need to adhere to the requirements for warrantless arrest. The message was prompted by an Illinois judge’s order from earlier in the month in a separate Chicago-area case.

Jackson questioned last week why the government would not agree to a preliminary injunction that reflects ICE’s own understanding and is judicially enforceable. He reiterated his concern at the hearing.

“You say, ‘This is our policy. This is what we will do. We stand by this.’ The plaintiffs said, ‘That’s all we’re asking for.’ All you have to do is say, ‘We’ll stipulate to a court order that says we’ll do (that),” Jackson said. “And the case is done. Why won’t you do that?”

“The defendants do not think they have done anything wrong that they could be subject to an injunction,” responded Assistant U.S. Attorney Nick Deuschle.

The government does not have to admit that in order to reach a settlement, interjected Jackson. Moreover, if ICE arrested a person unlawfully and released them under supervision, as they did with the plaintiffs, a litigant could theoretically never bring a lawsuit to block future such arrests.

“How can these people ever bring a case?” he wondered. “What kind of a country is it if people can’t bring before a court their grievance if ICE people are just ignoring these policies? There’s gotta be something that a court can do about it.”

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