From the first days of President Trump’s second term in office, federal Immigration and Customs Enforcement agents have carried out raids in and around Connecticut courthouses.

In August, ICE agents stormed a Stamford courthouse restroom to detain two immigrants who had come to court as victims of an armed robbery. At the same time, ICE detained 65 people, of whom less than half had any criminal charges or convictions, in the courthouse in Danbury.

If members of the public cannot safely participate in legal proceedings, our access to justice is impaired. Recent new rules may help to limit disruptive and dangerous law enforcement actions in courthouses, but they do not go far enough to address the scope of the problem.

On September 16, Connecticut Supreme Court Chief Justice Raheem Mullins announced a new policy responding to disruptive efforts by ICE agents to detain people in Connecticut’s courthouses. The policy prohibits arrests in courthouses “except pursuant to a judicial warrant or order issued or signed by a judicial officer,” and prohibits law enforcement personnel from wearing masks. Although framed as applying to “law enforcement,” both provisions effectively limit ICE arrests in courthouses. ICE agents frequently rely on non-judicial “administrative” warrants to justify arrests, and are the only law enforcement agents – state or federal – to wear masks in the ordinary course of business.

Although the regulation responds to a seemingly new problem, it is grounded in a long history of English and American law. The policy of barring arrests on courthouse grounds was upheld in British courts in 18^th century, and was endorsed by the U.S. Supreme Court in the 19^th and early 20^th century. Decisions prohibiting such arrests are rooted in a strong public interest in having people attend court proceedings, and in allowing courts to conduct their business without disruption.

At a time when there is a great deal of talk about immigrants “following the rules,” ICE activity at or in the vicinity of courthouses tells people that these are not safe places, even when the rules may require they appear in court. In addition to the obvious example of criminal defendants not attending trials – even when those trials may establish their innocence – the fear that keeps people out of courthouses means the absence of women bringing claims of domestic violence, of tenants challenging evictions, of plaintiffs seeking relief for injuries, and the unavailability of witnesses in all manner of proceedings.

A recent Supreme Court decision seemingly permits ICE to use racially-driven criteria like skin color and spoken language to determine if there is “reasonable cause” to believe someone is a non-citizen. As a result, ICE now freely stops and detains anyone who agents believe “looks like” someone who was not born in the U.S., whether the person is undocumented, has a green card, is seeking asylum – or turns out to be a U.S. citizen.

There are, however, practical steps that the legislature in special session can take to address these problems:

• Strengthen the current language regarding judicial warrants. Require that such warrants be inspected by a judge before law enforcement can be admitted to a courthouse.

• Increase use of remote proceedings. During the Covid-19 pandemic, people also had real reasons to fear going to court. Often the problem was solved by conducting hearings and even trials using remote videoconferencing. Courts need to make it easy for any litigant or their legal counsel to request remote proceedings.

• Expand the mask ban and the warrant requirement. The new masking regulations announced by Chief Justice Mullins apply only “inside a courthouse,” but in Danbury people were accosted on the grounds of the courthouse and even inside the adjacent parking lot as they were coming and going from the courthouse. Especially in light of recent cases of ICE impersonators relying on masks to engage in criminal activities, state marshals should require that no one on courthouse grounds may wear a mask, and that warrants not be served on courthouse grounds unless or until inspected by a judge.

• Ensure there is a mechanism for enforcement. When Chief Justice Mullins announced the new rules, he conceded that state marshals or other courthouse security personnel would not be able to prevent ICE agents that chose to ignore the new rules. While the question of state officers limiting the action of federal law enforcement in this very limited context is up for debate, there must be accountability. A measure adopted by the State of New York requires that court personnel make a report each time law enforcement conducts an arrest in the courthouse. Making such reports public and ensuring that ICE higher ups, the media, and the community aware of ICE agents’ activities is the first step toward accountability.

Connecticut’s lawmakers must recognize that barring arrests in courthouses has a long legal precedent. The proposed reforms would merely effectuate those precedents at a time when some federal law enforcement are determined to ignore them.

Peter Goselin, Chelsea Connery, and Sarah White are attorneys practicing in Connecticut.