by Jacob Barrett

On September 26, 2022, the full U.S. Court of Appeals for the Ninth Circuit sitting en banc vacated a district court’s order denying a preliminary injunction to the federal government and private prison giant GEO Group, Inc. that would prevent California from enforcing a ban on all private prisons in the state.

California legislators passed Assembly Bill (AB) 32 in 2019, barring private companies from operating jails, prisons or detention centers in the state for any government – including the federal government. In December that year, GEO Group filed a challenge to the law, arguing the state violated the Supremacy Clause of the federal constitution by preventing the federal government and the firm from renewing contracts for detention centers it operates in California for the U.S. Marshals Service (USMS) and federal Immigration and Custom Enforcement (ICE). [See: PLN, Dec. 2020, p.30.]

In October 2020, the federal court for the Southern District of California upheld AB 32 as it applied to ICE but stopped short of enforcing the law against USMS. Joined by the federal government, GEO Group appealed the decision. In October 2021 a divided three-judge panel of the Court struck down the law as applied to the federal government. State Attorney General Rob Bonta (D) then moved the full Ninth Circuit to reconsider the decision en banc. Bonta argued that companies like GEO Group were “treat[ing] people like commodities,” posing “an unacceptable risk to the health and welfare of Californians.” [See: PLN, Apr. 2022, p.50.]

But after the full Court heard the case, it agreed that AB 32 could not give California power over ICE detention without violating the Supremacy Clause. Since ICE relies almost exclusively on private prisons to house detainees, the Court said that “AB 32 would override the federal government’s decision to use private contractors to run its immigration facilities.”

That would be true, the Court continued, whether the case were analyzed for preemption of the federal government’s prerogative or for violation of intergovernmental immunity. “Simply put,” the Court concluded, “AB 32 would breach the core promise of the Supremacy Clause.”

Since the law would impact current contracts and operations, the Court said both GEO Group and the federal government faced sufficiently imminent injury that they would likely prevail in their challenge. But that is just one of the factors to be considered in issuing a preliminary injunction, as laid out in Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7 (2008). As for the rest – likelihood of irreparable harm, balance of equities and public interest – the Court remanded the case to the district court to make a determination.

Accordingly, the district court’s order denying a preliminary injunction was vacated and the case remanded for further proceedings. Appearing for the state along with Bonta and his staff were attorneys from the American Civil Liberties Union (ACLU) of Southern California, Northern California, as well as San Diego and Imperial Counties; the ACLU National Prison Project in Washington, DC; and the National Immigrant Justice Center in DC and Chicago. See: GEO Grp., Inc. v. Newsom, Case No. 20-56304 (2022)