Metropolitan News-Enterprise


Wednesday, October 6, 2021


Page 1


Ninth Circuit:

California Law Barring Private Prisons Must Be Blocked

Majority of Three-Judge Panel Says, As AB 32 Affects ICE Operations, It Intrudes on Federal Terrain


By a MetNews Staff Writer


The Ninth U.S. Circuit Court of Appeals, in a 2-1 decision, yesterday reversed an order denying a preliminary injunction to bar enforcement of AB 32 which phases out all private detention facilities in California, saying that the plaintiffs are likely to succeed on the merits in challenging the legislation.

Under the bill, signed into law by Governor Gavin Newsom on Oct. 11, 2019, Penal Code §9501 now provides—with exceptions—that “a person shall not operate a private detention facility within the state.”

The measure impedes implementation of the federal government’s immigration policy given that such facilities are used exclusively by the United States Immigration and Customs Enforcement (“ICE”) in housing undocumented workers and immigrants targeted for deportation, Judge Kenneth K. Lee said in the majority opinion, declaring that a conflict thus arises which violates “preemption principles.” He was joined by Judge Bridget S. Bade.

Dissenting, Judge Mary H. Murguia voiced agreement with the District Court judge, Janis L. Sammartino of the Southern District of California, that the presumption against preemption applies and that the plaintiffs—the United States and GEO Group, Inc., which operates two private immigration detention centers—did not overcome the presumption.

Sammartino did preliminarily enjoin enforcement of AB 32 as it pertains to the U.S. Marshals Service, but not as it affects California’s Bureau of Prisons or ICE.
Only the effect on ICE was in issue before the Ninth Circuit.

The District Court judge also granted California’s motion to dismiss and its motion for judgment on the pleadings.

State’s Police Powers

AB 32, Sammartino concluded, was a measure validly adopted under California’s police powers.

“We disagree,” Lee said, explaining:

“California is not simply exercising its traditional police powers, but rather impeding federal immigration policy.”

He wrote that “the detention of undocumented immigrants and those slated for removal…falls within the core of exclusive federal powers.”

The circuit judge went on to comment:

“California’s mantra-like invocation of ‘state police powers’ cannot act as a talisman shielding it from federal preemption, especially given that the text and context of the statute make clear that state has placed federal immigration policy within its crosshairs.”

2019 Decision

Sammartino relied on the Ninth Circuit’s 2019 decision in United States v. California which holds that California, in the exercise of traditional state police powers, may gather information pertaining to the well being of immigrants detained in private facilities. That decision, Lee pointed out, specifies:

“Mere collection of such factual data does not (and cannot) disturb any federal...detention decision.”

He remarked:

“In contrast here, AB 32 can and does ‘disturb’ the federal government’s ‘detention decision’ because it ‘regulate[s]...where an immigration detainee may be confined’ by banning the use of private detention facilities….The California court made clear that a state cannot make such an intrusion into federal policy.”

Lee continued:

“[W]e next ask if California has historically regulated the conditions of detainees in federal custody, and in particular those housed in immigrant detention centers….California does not even try to argue that it has such a historical practice. Nor could it. No such history exists. Indeed, the federal government exclusively regulates immigration detention.”

DHS Secretary’s Discretion

AB 32 was sponsored by the American Civil Liberties Union (“ACLU”) which was an amicus in the case. Lee observed that the United States and the ACLU have advanced “a rather audacious argument”: that Congress never entrusted the secretary of the Department of Homeland Security (“DHS”) with the power to contract with private detention facilities. Noting that “the federal government has relied on private immigration detention centers for decades,” he said:

“If this argument is correct, then ICE lacks statutory authority to privately contract out detention operations.   And no conflict preemption could exist because, well, there would be no federal law that conflicts with AB 32.

“Fortune may favor the bold, but not so if it flies against the statutory text and structure as well as historical tradition. Contrary to California’s assertions. Congress gave the Secretary broad discretion to arrange for appropriate detention facilities, including contracting with private companies to operate them.”

AB 32, Lee wrote, “intrudes into the federal sphere of authority by barring the Secretary from exercising his or her statutory power” to provide for places of detention.

This presents, he said, “a classic  case of conflict preemption.”

Intergovernmental Immunity

Lee recited that AB 32 provides that state private prisons may operate until 2028 while such federal facilities are not accorded a grace period.

“We hold that, at the very least, AB 32 discriminates against the federal government and thus violates intergovernmental immunity,” he wrote.

In a footnote, he said:

“At oral argument, counsel for California claimed that the state has now closed its private prisons. But that fact is beside the point. There is a difference between voluntary action and a legal mandate. AB 32 does not require California to close its prisons before 2028.”

Murgia’s Dissent

Murgia said in her dissent:

“Nothing in AB 32 prevents the federal government from apprehending and detaining noncitizens who are present in the country unlawfully. Yet the United States and GEO insist that they are likely to succeed on the merits of their challenge to AB 32 because AB 32 is preempted by federal immigration law. In accepting this argument, the majority adopts a narrow view of AB 32 that is not justified by the legislation’s text and context nor our case law. I would apply the presumption against preemption and conclude that AB 32 is not conflict-preempted.”

Agreeing with Sammartino that United States v. California should be applied, she said:

“To be sure, AB 32 goes further than the state health-inspection regulations at issue in California. But the majority fails to explain why its narrow view of AB 32—as a regulation of ‘the federal government’s detention of undocumented and other removable immigrants’—should prevail over the district court’s broader view of AB 32 as regulating detainee health and safety….AB 32 says absolutely nothing about immigration, and it does not mention the federal government. Therefore, there is no justification for treating AB 32 as a regulation of immigration rather than one of health and safety.”

She added:

“There is no support in our case law for narrowing our view of AB 32 to its potential effects in the immigration context. Therefore, as did the district court, I would apply the presumption against preemption.”

The case is The Geo Group v. Newsom, 20-56172.

Bonta Comments

California Attorney General Rob Bonta—who, as an assemblyman, carried AB 32—commented yesterday:

“California is committed to protecting the health and safety of all people, irrespective of whether they are in custody or civil detention. When we passed AB 32, we sent a clear message that putting an end to for-profit detention centers is key to achieving that goal.

“Prisons and detention centers shouldn’t be places of profit. We will continue the fight to ensure the dignities and rights of everyone in California are protected.

“As a Filipino American who was brought to this country as an infant, this fight is personal to me. While the road ahead may feel a little longer today, our work continues and we will keep pushing forward.”

In urging passage of his bill, Bonta said in 2019:

“No human being deserves to be held in the horrific conditions we’ve been seeing in these for-profit, private facilities.”


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