Court Rule Change Prohibits Warrantless Civil Arrests At Michigan Courthouses

Attorneys, parties and subpoenaed witnesses cannot be subject to civil arrest while traveling to, attending or leaving court proceedings or performing related legal duties under a recent amendment to Michigan Court Rule 8.115.

The change to Michigan Court Rule (MCR) 8.115 took effect May 1, 2026, pursuant to an order of the Michigan Supreme Court (ADM File No. 2025-14).

The Michigan Supreme Court published the proposal to amend MCR 8.115 in November 2025, fast-tracking it with a shorter-than-usual comment period. According to the high court’s website, more than 2,000 written comments were submitted on the proposal. The justices also held a public administrative hearing on January 14, 2026, where members of the public offered in-person comments on the proposed rule change.

The foundation for the court rule amendment is MCL 600.1821, which prohibits civil arrests in courthouses. The court rule change clarifies and broadens the statute’s application. Notably, the order amending MCR 8.115 says the rule change does not apply to criminal arrests made pursuant to a signed warrant or made with probable cause. The amendment also sets forth what is considered “going to, attending and returning from” court and who qualifies as a “subpoenaed witness.”

The amendment was reportedly prompted, in part, by immigration enforcement policies that have expanded the ability of U.S. Immigration and Customs Enforcement (ICE) to make civil immigration arrests at courthouses.

Rule Change Support

The Executive Committee of the State Bar of Michigan (SBM) unanimously backed the rule change, as did Michigan Attorney General Dana Nessel.

In a December 19, 2025 letter to the Michigan Supreme Court, the SBM Executive Committee stated: “Meaningful access to the court system is a fundamental right guaranteed by both the Michigan and United States Constitutions. That right extends to citizens and non-citizens alike, without regard to race, color, or national origin. Ensuring that all individuals can access Michigan’s courts free from intimidation or fear should therefore be a paramount concern for all who are entrusted with, or invested in, the fair and effective administration of justice. When parties, witnesses, victims, or members of the general public are deterred from entering courthouses, public safety, the integrity of our judicial system, and constitutional principles are undermined. For over a century Michigan law has recognized this concern by prohibiting the civil arrest of individuals attending court proceedings as parties or witnesses. ADM File No. 2025-14 builds on that long-standing legal framework by implementing existing statutory provisions and ensuring their consistent application to all persons with legitimate business in a courthouse, not just parties, attorneys, and subpoenaed witnesses.”

In her letter to the high court, AG Nessel pointed out that New York, Illinois and Connecticut each have laws protecting “certain individuals from civil arrest in courthouses.” She further stated: “Creating an environment in which individuals – whether they be crime victims, parties, or witnesses – are afraid to participate hinders … access [to the courthouse] and, consequently, the fair administration of justice. … The proposed amendment would help alleviate the[] negative impacts and thereby encourage participation and maintain accountability in the fair administration of justice.”

Meanwhile, Michigan Supreme Court Justice Noah P. Hood, in a separate concurrence to the order adopting the amendment, explained why he supported the rule change. He emphasized the amendment “falls squarely within” the high court’s “rulemaking function and does not exceed it.” According to the justice, “Three aspects of the amendment illustrate this: (1) it promotes court safety and accessibility, (2) it does not encroach on the legislative or executive branches’ respective mandates to make and execute the law, and (3) in comparison to past examples in which this Court did exceed its rulemaking authority, the amendment is particularly benign.”

In his concurrence, Justice Hood explained the courts “are service providers” and this service “only works if the people seeking to use it can actually access it free from undue harassment or interference. It only works if litigants, witnesses, and victims are able to come into court to file their documents, state their cases, and appear in ‘the places they are required to attend.’ … If we do not act to safeguard access to our courts, we will not be able to fully measure the harm of our inaction. … I respectfully and enthusiastically agree with the amendment.”

Amendment Non-Supporters

The Michigan Sheriffs’ Association, in a letter to the Michigan Supreme Court, indicated that it did not support the rule change.

According to the Association, federal law allows the “Department of Homeland Security Immigration and Customs Enforcement (ICE) to authorize civil arrest warrants” and the U.S. Constitution “pre-empts conflicting state actions that would encroach on the authority of the federal government ….”

The Association also said the amendment “would likely create a schism between local and federal law enforcement, causing a reluctance to share information, which could result in court security and public safety being compromised” and would “place Michigan’s sheriff’s deputies in legal jeopardy.”

Meanwhile, Michigan Supreme Court Justice Brian K. Zahra issued a separate dissent from the high court’s order adopting the rule change. He called the amendment “unnecessary,” “ill-advised” and “at best a political statement framed as a solution in search of a problem.”

Justice Zahra noted the rule change potentially conflicts with federal immigration enforcement laws and “will actually create problems” in Michigan. “In particular, the proposal cannot be effectively enforced, and attempting to enforce the proposal will likely have an inimical result,” he said, pointing out that Congress has “enacted laws governing the entry, admission, presence, status, and removal of aliens within the United States through the Immigration and Nationality Act of 1952 (INA), 8 USC 1101 et seq., and other related laws.”

According to Justice Zahra, “At first blush, it would seem that the proposed court rule would apply to ICE agents. MCL 600.1821 does not discriminate in regard to who makes the arrest. … … But state courts have no authority to void a federal arrest. The appropriate action would be to seek a writ of habeas corpus in federal court. … The proposed amendment offers only false assurance that parties, attorneys, subpoenaed witnesses, and officers while going to, attending, and returning from court may not be arrested by the federal government. Moreover, as a practical matter, the prospect of having an arrest ‘voided’ by a state court offers false comfort to someone being held in federal custody.”

In addition, “Michigan law enforcement has no similar immunity from federal prosecution,” the justice observed. “The same goes for private individuals. The proposed rule encroaches on the federal government’s authority …. Therefore, any Michigan police officer or sheriff’s deputy who enforced the amended rule by impeding ICE agents in the performance of their federal duties would be in legal jeopardy.”

Moreover, law enforcement “is not alone,” Justice Zahra said, noting that a Wisconsin state-court judge tried to prevent the arrest of an individual who was at the courthouse for a legal proceeding. “A federal jury recently convicted the judge of obstruction, a felony. There is no reason to believe that a court rule … would have deterred the Department of Justice from pursuing legal action against the judge, and there is no reason to believe that such a rule would protect law enforcement, judges, and staff from being convicted of obstruction …. All told, the proposed amendment to our court rules is unnecessary and ill-advised. For these reasons, I would not adopt the proposal.”