WA can’t make unannounced inspections of Tacoma immigration lockup, federal judge says

A federal judge on Friday ruled that most of a Washington state law meant to enhance state oversight of the privately-run immigration detention center in Tacoma is not constitutional.

Judge Benjamin H. Settle in U.S. District Court for Western Washington granted a preliminary injunction to the contractor that owns and operates the facility, the GEO Group, hobbling a law passed last year giving state health and workplace safety agents authority to conduct unannounced inspections at the Northwest ICE Processing Center. The law was also meant to prohibit the use of solitary confinement, among other protections for detainees.

Settle found that multiple sections of HB 1470 violate the U.S. Constitution because they discriminate against GEO in violation of a U.S. constitutional doctrine. The intergovernmental immunity doctrine makes state laws invalid if they directly regulate the United States or discriminate against the federal government or those it deals with.

“The Court will not permit the State to enforce unconstitutional laws so that it can seek to address the public policy concerns that gave rise to those laws,” wrote Settle, who works from the federal courthouse in Tacoma.

Although the action is preliminary, Settle appears unlikely to budge on his decision. He noted in the 64-page ruling that a permanent injunction was not ordered because GEO did not properly move for one.

HB 1470 imposes a number of requirements on private detention facilities in the state. The detention center on the Tacoma Tideflats is the only such facility. Among other things, the law gave state health and workplace agents authority to conduct unannounced inspections there, required the state Department of Health to adopt rules ensuring the facility complied with measurable sanitation and conditions standards, and created a private right of action for detainees to recover monetary damages for violations of the law.

The GEO Group sued Gov. Jay Inslee and state Attorney General Bob Ferguson in federal court two months after the law went into effect May 11 last year, alleging that it violated the U.S. constitutional clause that makes federal law the “supreme Law of the Land,” and another clause that prohibits states from passing laws “impairing the Obligation of Contracts.”

Settle only agreed in his ruling that HB 1470 violated the former, known as the Supremacy Clause.

“We are pleased by the Court’s ruling and are committed to continue providing the federal government with contracted secure residential care services in accordance with all applicable federal standards,” a GEO Group spokesperson said in a written statement.

A spokesperson for Inslee’s office said Tuesday they were still reviewing the ruling and have not made a decision on next steps. Ferguson’s office did not reply to a request for comment.

After the lawsuit was filed, Ferguson told the Seattle Times that GEO was asserting it was above state law. In court filings, attorneys for the state argued that section two of HB 1470, which set up the sanitation, hygiene and safety standards, did not discriminate against GEO because it simply replicated the standards that already apply to residential treatment facilities.

Settle disagreed, finding that residential treatment facilities were not similar enough to private immigration detention facilities. He said they serve entirely different purposes, and generally people voluntarily enter residential treatment centers.

“The State does not even attempt to explain how immigration detention facilities like the NWIPC are similarly situated to residential treatment facilities,” Settle wrote. “Nor can it.”

To comply with the law, GEO alleged that it would need to make significant changes to the detention center that would cost it in excess of $3 million. Necessary changes would include completely redesigning the facility’s heating, ventilation and air conditioning as well as extensive modifications to the building itself.

Unannounced inspections blocked

It was under HB 1470 that DOH and Department of Labor & Industries inspectors sought entry to the detention center multiple times in November and December last year. Health inspectors were there to investigate hundreds of complaints from detainees over inadequate food, medical and laundry services. L&I inspectors were looking into alleged workplace-safety violations.

U.S. Immigration and Customs Enforcement denied the inspectors entry each time. The inspectors returned with a warrant signed by a Pierce County Superior Court judge, but they were still not allowed in.

Both DOH and L&I sued the GEO Group for injunctions to force them to allow inspection. Those cases are pending in U.S. District Court for Western Washington, but they seem unlikely to prevail given Settle’s ruling.

The state argued that section three of HB 1470 simply authorized DOH and L&I to conduct inspections that the agencies already conduct at other facilities, but Settle found that the law goes further than that by mandating that the agencies perform routine, unannounced inspections.

“The State does not identify any other statute that subjects any other facility — let alone a similarly situated facility — to mandatory, routine, and unannounced inspections,” Settle wrote.

HB 1470 imposed stricter requirements on GEO than those imposed on other facilities in the state, Settle found, including a lack of a requirement to obtain consent before entering a worksite to conduct investigations.

Law’s ban on solitary confinement an open question

Settle said most of GEO’s arguments on the constitutionality of HB 1470 were related to Section 4, which prohibited the use of solitary confinement, required sexual violence and harassment grievances to be immediately responded to by “culturally competent professionals,” and mandated that mental health evaluations occur weekly.

It also required that sleeping rooms at private detention facilities have access to windows and natural light and that detainees be given no-cost access to TVs, telecommunications services, handheld radios, computers and internet.

HB 1470 does not apply to private detention facilities that operate on a contract in effect prior to Jan. 1, 2023. GEO and ICE most recently modified their contract before that date, agreeing in January 2021 that their contract would run through September 2025.

Settle said GEO failed to establish that ICE would extend its contract or modify it before that date, so he can’t discern whether the section of the law would ever be enforced against GEO. Settle dismissed GEO’s claims regarding the section without prejudice but without leave to amend.

Researchers have found that on average, the Northwest ICE Processing Center places detainees in solitary confinement for longer than any other detention facility in the nation. A detainee can generally be held in segregated confinement for up to 30 days, according to the disciplinary policy the center adheres to, but University of Washington researchers in 2020 found that the average stay was more like 70 days.

Other researchers more recently found the average stay was 55 days and placed it ninth out of 125 facilities for the longest solitary confinement stays. There were some instances of detainees held in solitary for over a year. United Nations human rights experts say this punishment is a form of torture when people are held in such conditions for longer than 15 days.