The case of the day is Ryan v. US Immigration and Customs Enforcement (D. Mass. 2019). The case involves a major political issue right now in Massachusetts—the practice of federal immigration officials in arresting people in federal or Massachusetts courthouses and holding them pending removal, or removal proceedings. We are not talking about criminal arrests, but rather arrests under § 242(a) of the Immigration and Nationality Act, which provides: “Pending a determination of deportability in the case of any alien … such alien may, upon warrant of the Attorney General, be arrested and taken into custody.” Section 287(a)(2) of the Act authorizes immigration officers to “arrest any alien in the United States” without a warrant if he or she has reason to believe that the alien “is in the United States in violation of any such law or regulation and is likely to escape before a warrant can be obtained for his arrest.” The practice has an obvious impact on the administration of justice, as it discourages people from appearing in court as litigants or as witnesses, and it has concerned Massachusetts judges and lawyers.

Last year several aliens illegally in the United States sought relief from a single justice of the Supreme Judicial Court, asking him to issue a writ of protection protecting them from arrest by federal officers in Massachusetts courthouses or on their way to or from court. The bases for the petition were the common-law privilege against arrest while going to and from court and the SJC’s general power of superintendence over the Massachusetts courts. The single justice correctly (in my view) denied the petition. She noted, among other things, that even if she found a common law privilege applied, the writ of protection itself does not operate as an injunction, and in a case in federal court, the court would still be faced with the question of whether a Massachusetts common law privilege was relevant to the conduct of a federal immigration officer. In other words, the court lacked the power to afford effective relief.

Two Massachusetts district attorneys joined with the Committee for Public Counsel Services, our public defenders, to bring a new case in the federal court seeking to enjoin ICE from making these arrests. The judge granted a preliminary injunction. I do agree with the outcome, but I’m not going to focus on the outcome here, or the reasons for it. The case delights me because it shows that the common law is not just some vestige or residue that we learn about in law school, but rather that the common law is the heart of our law. We presume that statutes are consistent with the common law. Yes, Congress can modify or abrogate the common law by statute, but when an administrative agency reads a statute to abrogate the common law and when its reading of the statute is incorrect, then the common law prevails. In this case, Judge Talwani reviewed the history of the common law privilege against civil arrest when attending court and found that Congress had not intended to abrogate the privilege when it enacted the Immigration and Naturalization Act. Therefore, the arrests are improper.¹There is an issue lurking here that I don’t think the opinion addresses: are we talking about the federal common law, or the common law of Massachusetts? In general there is no federal common law, though there are plenty of exceptions. But if we are talking about Massachusetts common law, why does the state-law privilege apply to enjoin federal proceedings?

In a sense Massachusetts may be the modern custodian of the common law. I’ll bet you didn’t know (if you’re not a Massachusetts lawyer) that murder is a common law crime in Massachusetts, i.e., a crime that is not defined by statute! Just last week, our Supreme Judicial Court reaffirmed the vitality of common law crimes in Massachusetts in a case on the common law crime of interference with the lawful duties of a police officer.

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  There is an issue lurking here that I don’t think the opinion addresses: are we talking about the federal common law, or the common law of Massachusetts? In general there is no federal common law, though there are plenty of exceptions. But if we are talking about Massachusetts common law, why does the state-law privilege apply to enjoin federal proceedings?