ICE Defied Court Order In Greeley Raid

The Denver Post is reporting that Immigrations and Customs Enforcement (I.C.E.) officials violated a Wednesday court order from Judge Kane of the U.S. District Court for the District of Colorado, prohibiting I.C.E. from removing or deporting people apprehended in last Tuesday’s Swift plant raid in Greeley.  A hundred were voluntarily deported contrary to the order.  Another 75 were sent to Texas and now have been returned to Colorado because of the order. A habeas corpus suit was filed against Julie L. Meyers [the name is spelled this way in court papers, but other sources have spelled it Myers], Assistant Secretary of Homeland Security (who heads I.C.E.) and I.C.E., Wednesday, in U.S. District Court for the District of Colorado case 06-CV-2494-JLK-MJW and the Judge Kane entered on order stating:

[T]he applicants shall remain in custody and within the jurisidiction of the court until further order.

In addition, I.C.E. was ordered to show cause in writing with a brief in support to show why relief should not be granted against them by today.  With electronic filing, that could happen any time before midnight.

The suits were filed by the United Food and Commercial Workers Local 7 as “next friend” of a number of workers apprehended in the Greeley raid.  They allege that the nature of the detentions following the raid is unlawful because the people picked up have been denied due process, denied access to counsel and their place of detention has not been disclosed.

While it isn’t unheard of for government officials to violate court orders, usually, there is a plausible argument that the reason that the government official isn’t obeying the law or a court order because that the government official is unable to do so.  This is the case, for example, in a pending Colorado case where Colorado Mental Health Institute in Pueblo refused to take about 80 patients with court orders to be admitted, because it has no more room for them.

It is far less common for a government official to simply defy a court order, as I.C.E. officials apparently did in this case, particularly where there is no plausible argument that national security was at stake.

A party violating a court order cannot claim as a defense that the order was based on an incorrect interpretation of the law.  The only defenses are that (1) the order wasn’t violated, (2) it wasn’t possible to comply with the order, or (3) the official wasn’t informed of the order.

Documents in the case show that it was legally served on Wednesday.  It seems beyond dispute that some individuals were removed from the state and that some were removed from I.C.E. custody through deportation, both in violation of a court order.  And, it is hard to see why it would be impossible to comply with the order, which called for the agency to refrain from acting, rather than to act affirmatively.

The best defense possibly available to I.C.E. is that it took its actions on Tuesday or Wednesday morning, before it received notice of the order.

If indeed I.C.E. acted in contempt of Judge Kane’s order, Julie L. Myers could personally face imprisonment or a fine as punishment, as could any other I.C.E. official with notice of the existence of the order who defied it.

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Andrew Oh-Willeke

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