Laken Riley Act Raises Alarms From Bay Area Civil Rights Attorneys

Civil rights attorneys in San Francisco are preparing to challenge the Trump administration over a new law that directs federal authorities to detain certain undocumented immigrants who are suspected of theft and other crimes.

The Laken Riley Act, which President Trump signed into law on Wednesday, requires immigration officers to detain people who lack legal status in the U.S. after they have been charged or arrested — but not necessarily convicted — in connection with burglary, theft, larceny or shoplifting, as well as some violent crimes.

People who are detained under the law will be held until their immigration proceedings are concluded, which could take months or years. It expands the scope of mandatory detention that was required under previous immigration law, which only applied to cases where a person was convicted of a crime through due process.

“Preventative detention in a free society is really a rare thing, and it’s meant to be rare under our Constitution,” said Jordan Wells, a senior staff attorney with the Lawyers’ Committee for Civil Rights of the San Francisco Bay Area. “This law exposes people who the government has no business detaining without review by a judge to mandatory detention … merely based on an arrest or a charge.”

Attorneys in the Lawyers’ Committee are working with other nonprofit organizations to monitor whether Immigration and Customs Enforcement is starting to enforce the act. Attorneys are preparing to represent people who are detained under the law and are ready to file lawsuits in California’s federal courts if necessary, Wells said.

The law presents a direct threat to immigrant communities across the Bay Area and allows authorities to circumvent judicial safeguards guaranteed under the Constitution, he said, noting that it sets a worrisome precedent.

“Under the logic of this bill, the government could lock up huge swaths of the population without review by a judge, and that is just completely anathema to our freedoms guaranteed by the Constitution,” Wells said. “I’m confident that the courts will uphold the public’s right to due process in challenges to this law.”

Civil rights groups are also concerned about a provision in the bill that authorizes states to sue the federal government over failure to enforce immigration laws. It also gives states the authority to sue if the federal government continues to issue visas to people from countries that resist accepting their citizens who are being deported from the U.S.

Minju Cho, an attorney at the ACLU of Northern California, said the provision on states’ rights could be detrimental. States have no power to dictate immigration law, she said, adding that the Supreme Court has made it clear that immigration policy is a matter of federal jurisdiction.

Allowing states to act as federal watchdogs is a constitutional upset that could threaten the supremacy clause, which gives federal law precedence over state law, Cho said.

“What’s important to emphasize is that this is unprecedented,” Cho said. “It’s too early to say exactly what this will look like, but the goal is obvious. The goal is for states that essentially oppose immigrant rights — particularly red states — to force the federal government to enforce federal immigration law against certain people.”

With fear and uncertainty mounting among immigrant communities, Cho said California legislators need to be champions for their residents in the face of unprecedented and discriminatory acts.

In the Bay Area, city and state officials have already taken steps to push back against Trump’s anti-immigrant directives by reaffirming sanctuary statuses and filing suits against orders such as Trump’s directive on birthright citizenship.

Cho said she’s expecting to see attorneys and civil rights advocates challenge the Laken Riley Act in court soon. She added that it would be difficult for immigration officials to enforce the law’s provisions and encouraged people to keep from panicking.

“Know your rights,” she said. “If you have an encounter with ICE, make sure you exercise your right to remain silent and refuse to answer questions without a lawyer present.”