How Massachusetts became a sanctuary state.

How Massachusetts Became a Sanctuary State

How Massachusetts Became a Sanctuary State

The law, lawyers, and the court.
July 25 2017 5:42 PM

How Massachusetts Became a Sanctuary State

A landmark ruling from the commonwealth’s highest court could change the future of immigration enforcement.

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Immigration and Customs Enforcement agents detain someone on Oct. 14, 2015, in Los Angeles.

John Moore/Getty Images

The Trump administration’s crackdown on undocumented immigrants has been facilitated by a tool called an “immigration hold.” Immigration and Customs Enforcement officers can issue so-called ICE detainers when a state or local law enforcement agency is poised to release an undocumented immigrant from custody. If an agency agrees, it may hold the individual in custody for up to two days so ICE agents can transfer him or her to an immigration detention facility and initiate deportation proceedings.

Mark Joseph Stern Mark Joseph Stern

Mark Joseph Stern is a writer for Slate. He covers the law and LGBTQ issues.

On Monday, the Massachusetts Supreme Judicial Court unanimously ruled that state court officers are not legally permitted to comply with ICE detainers. The logic of its decision extends to all commonwealth law enforcement officers—meaning that Massachusetts is now, effectively, a sanctuary state. While this is the first state Supreme Court to prohibit local law enforcement from honoring ICE detainers, it probably won’t be the last. On Tuesday, I spoke with Massachusetts American Civil Liberties Union legal director Matthew Segal about the significance and potential impact of the SJC’s ruling. Our conversation has been edited for clarity.

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Mark Joseph Stern: How did this case begin?

Matthew Segal: Sreynuon Lunn is an undocumented immigrant who was charged with unarmed robbery under state law in state court. That charge, however, was dismissed, and at that point, Lunn should’ve been free to go. But instead, court officers complying with an ICE detainer kept him in a holding cell for several hours so that ICE officers could take him into federal custody. Lunn argued that these Massachusetts court officers broke state law by holding him on an ICE detainer when he was otherwise entitled to be free.

And the court agreed.

The SJC asked the question this way: When state officers receive an ICE detainer from the federal government, are they being asked to do something illegal under state law? And the SJC’s answer to that question was: Yes, they are. No Massachusetts law allows Massachusetts officers to detain individuals because the federal government has issued an ICE detainer—which is, after all, a request, not a command. So when officers comply with these requests, they are acting unlawfully.

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The Trump administration often implies that undocumented immigrants are criminals simply for living in the United States without papers. This ruling would seem to contradict that.

Generally speaking, immigration is a civil matter, and merely living in the U.S. without documentation is not a crime. “Unlawful presence” is a civil offense, not a criminal one. So the SJC focused on the authority of Massachusetts officers to arrest people for civil infractions that don’t rise to the level of criminal conduct. This distinction was crucial to the opinion because law enforcement officers, especially those in Massachusetts, have more limited authority to arrest people for civil infractions. The SJC explained that ICE detainers ask state officers to arrest people without warrants for an offense that isn’t even a crime. And it held that Massachusetts officers simply lack the legal authority to do that.

Monday’s ruling involves only officers of a court. Why has the ACLU interpreted it to apply to all Massachusetts law enforcement officers?

It’s true that the facts that gave rise to this case involve court officers. But there’s a really important part of the opinion in which the SJC addresses the authority of court officers to make arrests. It says that when court officers are working in courthouses, they have “the same power to arrest as Massachusetts police officers.” That essentially means that there is no meaningful difference between a court officer and any other Massachusetts officer acting on state or local authority. It means that if it’s illegal for a court officer to make a certain arrest, then it is equally illegal for another state or local officer to make that same arrest. It’s just not possible to read this opinion and conclude that it is illegal for court officers to arrest based on ICE detainers but somehow not illegal for other Massachusetts officers to do so.

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What’s the potential significance of this decision outside of Massachusetts?

The ruling highlights the fact that the federal government is currently asking local law enforcement officers to take noncitizens into custody in violation of their own state laws. The administration argues that ICE detainers are about “friendship” and “comity” between states and the federal government. But friends don’t ask friends to violate their own laws and constitution, and that’s what we’re really seeing here.

The SJC recognized that, and I don’t think its view is unique to Massachusetts at all. We’ve already seen a number of decisions from all over the country questioning whether local law enforcement officers can take people into custody based solely on ICE detainers. What’s historic about Monday’s decision is that it is the first decision by the highest court of a state to say this. And civil rights advocates will continue to litigate this issue elsewhere.

Speaking of, I want to pause here to give some credit to the advocates involved. The Massachusetts ACLU did not litigate this case at the SJC, right?

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We represent Lunn in federal court, where we’re fighting for an injunction barring the government from redetaining him without first establishing that his removal has become reasonably foreseeable. He was born in a refugee camp in Cambodia, which does not regard him as a citizen—yet the government has repeatedly detained him, with no real chance of deportation. We want the court to make it stop.

In state court, we filed an amicus brief in support of Lunn on behalf of Massachusetts criminal defense attorneys. He was represented by Emma Winger and Alyssa Hackett, both public defenders, and Mark Fleming of the National Immigrant Justice Center.

How do you think Monday’s ruling will play into Attorney General Jeff Sessions’ political and legal assault on states that refuse to comply with his campaign against undocumented immigrants?

The decision shows that Sessions’ attempt to shame agencies that reject ICE detainers is totally unsupported by law. How on earth can the federal government shame state officials for following their own states’ laws? It will now be clear that when Massachusetts law enforcement agencies decline to take someone into custody on an ICE detainer, they aren’t picking a fight with the administration; they’re honoring the laws of Massachusetts. And that, of course, is exactly what they should be doing.

One more thing

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