California’s ban on private prisons most likely violates federal powers, and should be stalled until federal litigation against it concludes, the Ninth Circuit Court of Appeal ruled Sept. 26.
Immigration and Customs Enforcement mostly works with private prisons to detain immigrants in the state. Both the federal government and The Geo Group, which operates the Adelanto ICE Processing Center, sued the state to keep the prison operating. The court’s 9-3 split-decision injunction is not a final result of the lawsuit, but does explicitly prevent the law from forcing the contract between ICE and The Geo Group to end.
Assembly Bill 32, written by Attorney General Rob Bonta in 2019 while he was a state assemblymember, states that a person shall not operate a private detention facility within the state. It is undisputed that the law prohibits the state of California from contracting with private prisons.
“A private, for-profit company that is traded on Wall Street will inherently be incentivized to maximize profits and minimize costs—including the important ‘cost’ of investments in programs, services and rehabilitation efforts for inmates—through warehousing our inmates. These companies have a duty to shareholders, not to California,” Bonta said at the time.
The federal government and The GEO Group argued it attempted to preempt federal law by halting contracts between Immigrations and Custom Enforcement (ICE) and the private prisons the government agency uses to detain immigrants.
“The unlawful effect of AB-32 is to undermine and eliminate the congressionally funded and approved enforcement of federal criminal and immigration law by U.S. Immigration and Customs Enforcement (ICE), the U.S. Marshals Service (USMS), and the U.S. Bureau of Prisons within the State of California,” The GEO Group said in its complaint.
The Adelanto ICE Processing Center has 1,940 beds, and its annex has another 750 beds, according to their complaint. It was originally built by Adelanto as a correctional facility. GEO bought it in 2008, and built the western portion in 2010 and 2015.
The GEO Group’s case was dismissed in federal court last year, but the Ninth Circuit revived it on a split 2-1 decision after appeal. That decision also granted an injunction, which prevented federal-GEO Group contracts from being annulled. Bonta, as attorney general, requested all judges of the Ninth Circuit review last year’s ruling.
“Under the well-established ‘presumption against preemption,’ ‘the historic police powers of the States are not superseded unless that was the clear and manifest purpose of Congress,’” Bonta argued in his request.
The decision
The majority opinion said that the ban preempted federal powers by limiting ICE’s discretion.
“Even assuming it is a neutral regulation of private conduct, AB 32 prohibits ICE from exercising its discretion to arrange for immigration detention in the privately run facilities it has deemed appropriate,” the opinion, written by Ninth Circuit Judge Jacqueline Nguyen, reads.
Ninth Circuit Chief Judge Mary Murguia wrote a dissenting opinion, which Circuit Judges Johnnie Rawlinson and Jennifer Sung dissented.
Murguia argued that AB 32 did not violate federal powers because it did not directly regulate or discriminate against the federal government.
“The majority errs by extending intergovernmental immunity to nondiscriminatory, indirect regulation of the government,” the dissenting opinion reads.
The judge brought the same argument in her dissent in last year’s Ninth Circuit ruling.
Case information
California Southern District Judge Janis Sammartino presides.
Ninth Circuit judges Mary Murguia, Johnnie Rawlinson, Milan Smith Jr., Sandra Ikuta, Jacqueline Nguyen, Paul Watford, John Owens, Ryan Nelson, Kenneth Lee, Danielle Forrest and Jennifer Sung heard the case.
GEO Group’s suit number 3:19-cv-02491.
The federal government’s suit number 3:20-cv-00154
Ninth Circuit No. 20-56304.
Read our prior coverage here.
Read The GEO Group’s complaint here.
Read the federal government’s complaint here.
Read last year’s ruling here.
Read Bonta’s request to reconsider here.
Read the ruling here.
