Hospitals Brace for ICE Raids as Safe Space Shield Falls Away

Medical facilities are increasingly concerned they’ll be the next targets of the Trump administration’s immigration raids, placing health-care workers whose first duty is to patient care in a precarious position.

President Donald Trump has redefined what’s traditionally been considered off-limits to Immigration and Customs Enforcement agents. What were previously considered safe spaces, such as churches and courthouses, have been identified as targets, leading to a handful of lawsuits over the policy shift that so far have yielded mixed results.

Recent events at facilities in Southern California—especially one that led to federal criminal charges against two Ontario, Calif., surgery center employees—are fueling new fears that health-care facilities could be next.

“It doesn’t matter who you are or where you work, if you assault our agents or otherwise interfere with our operations, you will be arrested and charged with a federal crime,” acting US Attorney Bill Essayli said in a statement after the Ontario arrests.

The commitment hospitals have to their patients—including one to respect their privacy—may be “diametrically opposed” to those of ICE officers, and could lead to genuine conflicts, said Joan Feldman, the chair of Shipman & Goodwin LLP’s health law practice group.

The recent California arrests demonstrate that even non-immigrants could be at risk of prosecution if ICE raids a health-care facility, said Lynn Pearson, a senior attorney at the National Immigration Law Center.

Several attorneys suggested that health care organizations should prepare for a potential ICE raid by training employees about their patients’ rights and setting a protocol for reacting to the arrival of immigration enforcement officials.

Safe Space Shift

Law enforcement in hospitals isn’t new, said Feldman. Hospitals often call in police officers to deal with unruly patients, especially in their emergency departments.

The Trump administration in January overturned the longstanding federal policy specifically limiting immigration enforcement in “sensitive locations” such as hospitals, churches, and schools.

The “presumption that hospitals and clinics will be free from ICE raids is no longer the case,” ArentFox Schiff LLP partner Annie Chang Lee said.

Facilities in states like California with large immigrant populations are currently experiencing higher enforcement levels. Lee and her colleagues identified three other recent interactions between immigration agents and California health-care centers that have occurred in parking lots, lobbies, and non-patient areas.

ICE activity also is “highly likely” to increase in states with policies requiring collaboration with the federal government, she said.

ICE and the Justice Department didn’t respond to requests for comment.

Legal Challenges

The end of the safe spaces policy resulted in several lawsuits from religious groups, the latest of which accused the administration of violating their rights under the First Amendment and Religious Freedom Restoration Act.

The coalition also said the Homeland Security Department, ICE’s parent agency, violated the Administrative Procedure Act by arbitrarily and capriciously rescinding the earlier policy.

“Faith communities, hospital workers, and educators should not have to choose between their commitments of service and the safety of those they serve,” said Skye Perryman, CEO & President of Democracy Forward, which represents the plaintiffs.

Similar suits have had mixed results. A federal judge in Washington denied a request to stop ICE from gathering at or near places of worship and raising people’s fears of attending religious services. The plaintiff group lacked standing because it didn’t show an enforcement action was imminent, the court found.

But a federal district court in Maryland put the enforcement policy on hold in February, finding that the plaintiffs had sufficient evidence that the policy caused their congregants to skip services and that they’re likely to succeed on their claims. DHS has appealed the injunction.

Health-care attorneys were unaware of any similar suits filed by hospitals or other medical facilities against DHS.

Fourth Amendment Limits

Health-care facilities’ first responsibility is to their patients. They’re committed to helping people regardless of their immigration status and federal law prohibits them from turning away patients with emergency medical conditions, Feldman said. ICE enforcement in a medical facility could interfere with that.

Despite the end of the safe spaces policy, the US Constitution’s Fourth Amendment still applies and prohibits government agents from searching private areas without a judicial warrant. Medical facilities have a Fourth Amendment right to refuse warrantless searches of private areas such as patient and treatment rooms, which should be clearly marked, attorneys said.

Additionally, staff can refuse to provide information about patients to law enforcement officers absent a judicial warrant or court order, according to NILC.

Any doubt about a warrant’s validity should be resolved by a facility’s attorney, who should be one of the first people workers call, Feldman said. Facilities should have clear policies and train workers on how to interact with officers in anticipation of an interaction, she said.

In the Ontario case, the Justice Department claims that the target of the immigration action was a man who sought refuge inside a surgery center, not a genuine patient. The health-care workers, one of whom allegedly interfered with the arrest in the facility’s parking lot, face a statutory maximum sentence of eight years in federal prison on an assault count and up to six years in federal prison on a conspiracy count, according to the DOJ.

Pearson said that different standards apply to searches or seizures in public areas such as lobbies and parking lots, where officers can enter spaces and seize items that are in “plain sight.”

The staff’s first obligation is to care for patents, not to respond to ICE, though a facility could designate responders in advance, Feldman said, noting she would never advise staff to confront officers.

Being confronted by a masked officer in tactical gear and carrying a gun is scary, and while hospital workers have been put in bad situations, these “everyday people are doing the best they can,” Pearson said.