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Attorney General Rob Bonta and Gov. Gavin Newsom have requested the Ninth Circuit Court of Appeals rehear en banc a month-old decision which resurrected a lawsuit against the state’s two-year-old private prison ban.

The law prevents people from operating private prisons in California, and sets sunset provisions for current government contracts. Bonta wrote the law when he was a state assemblymember.

Case history

The United States and the GEO Group, which owns the Adelanto U.S. Immigration and Customs Enforcement Processing Center, sued the state with the argument that California’s 2019 private prison ban was preempted by federal law and violated the intergovernmental immunity doctrine, because ICE is contracted with multiple private detention centers across the state. The GEO Group owns three facilities in California that are contracted with ICE.

The GEO Group’s and the federal government’s case was mostly thrown out by the U.S. District Court for the Southern District of California Oct. 8, 2020. The Ninth Circuit resurrected the suit Oct. 5, and issued a preliminary injunction against the enforcement of the law as it applies to ICE facilities. 

The split decision by the court ruled that the law discriminated against the federal government and impeded federal immigrations enforcement.

The court found discrimination against the federal government because only non-federally operated detention facilities were exempted from the law, and because the law gave California-contracted private prisons a longer sunset provision on their contracts than the federal government’s.

Bonta’s case

The panel’s decision ignores the Arizona v. United States (2012) doctrine of “presumption against preemption,” which states that state police powers are not superseded by the federal government unless that was the clear and manifest purpose of Congress, Bonta wrote. The panel incorrectly based its decision on federal statutes that give federal officers discretion, but which did not explicitly tell federal authorities to contract with private prisons for immigration detention, Bonta wrote.

The dissenting opinion on the panel, written by appellate Judge Mary Murguia, had stated the same argument.

Bonta also argued that the ban’s lack of exemptions for federally contracted prisons was due to differences between the types of facilities, not due to discrimination against the federal government. 

“And the types of privately operated facilities that are not exempted from the law—those used for federal immigration detention and state criminal detention—are subject to AB 32 precisely because of the documented pattern of health and safety concerns present in such facilities,” Bonta wrote.


Bonta; Thomas Patterson, senior assistant attorney general; Anthony Hakl, supervising deputy attorney general; and Gabrielle Boutin, deputy attorney general, filed the petition.

Appellate Judge Kenneth Lee wrote the majority opinion on the October ruling, and was joined by appellate Judge Bridget Bade. Appellate Judge Mary Murguia dissented.

Janis Sammartino, Southern California District judge, dismissed the case Oct. 8, 2020.

Read Bonta’s petition here.

Read the appellate court’s ruling here.

Read our prior coverage here

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