Metropolitan News-Enterprise


Wednesday, April 27, 2022


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Ninth Circuit to Reconsider En Banc Challenge To California Law Banning Private Jails


By a MetNews Staff Writer


The Ninth U.S. Circuit Court of Appeals yesterday vacated a three-judge panel’s 2-1 Oct. 5 opinion ordering that the District Court grant a preliminary injunction sought by the government and the GEO Group, operator of a private detention center, to bar implementation of AB 32 which would phase out private prisons in California,

A rehearing is to take place en banc. The order was signed by Chief Judge Mary H. Murguia who was a member of the three-judge panel and was the dissenter.

Writing for himself and Judge Bridget S. Bade, Judge Kenneth K. Lee said in The GEO Group v. Newsom, 20-56172:

“[B]ecause of seasonal and other fluctuations in immigration, the United States Immigration and Customs Enforcement (ICE) relies exclusively on private detention centers in California. California’s law would thus compel the United States to shutter all ICE detention centers within the state. In contrast, AB 32 carves out many exceptions for the state’s various private detention centers.”

He declared:

“Congress has given the U.S. Department of Homeland Security (DHS) Secretary the statutory authority to contract with private detention facilities. AB 32, however, intrudes into the federal sphere of authority by barring the Secretary from exercising his or her statutory power.

“California’s law also does not pass muster under the doctrine of intergovernmental immunity, which prevents states from directly regulating or discriminating against the federal government. California has discriminated against the United States because AB 32 provides certain exemptions for state agencies without offering comparable ones for the federal government.”

Murguia insisted in her dissent:

“The district court acted within its discretion in denying a preliminary injunction because the United States and GEO are not likely to succeed on their conflict-preemption and intergovernmental-immunity claims. Accordingly, I part ways with the majority as to the de novo analysis of the conflict-preemption and intergovernmental-immunity claims.”


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