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Hill moves to intervene in case restricting local ICE detentions

December 11, 2017

Indiana Attorney General Curtis Hill has filed a motion to intervene in a federal immigration case after a district court judge entered a consent decree barring the Marion County Sheriff’s Office from detaining illegal immigrants for U.S. Immigration and Customs Enforcement without a warrant or probable cause. The decree implicates the state’s ability to enforce its own statutes, Hill argued, thus creating the need for the state to intervene and file an appeal.

Hill’s office filed the motion to intervene on Dec. 4 after Southern District Court Judge Sarah Evans Barker entered the consent decree in the case of Antonio Lopez-Aguilar v. Marion County Sheriff’s Department, et al., 1:16-cv-2457. Antonio Lopez-Aguilar sued the sheriff’s department, as well Sheriff John Layton and a sheriff’s sergeant, in September 2014 based on the allegation that the defendants illegally detained him at ICE’s request.

Lopez-Aguilar’s detention came roughly three years after the Indiana General Assembly passed Senate Bill 590, which prohibited state and local government officials from limiting or restricting the enforcement of federal immigration laws. Specifically, Indiana Code section 5-2-18.2 creates “a duty to cooperate” with federal immigration efforts, deputy attorney general Winston Lin wrote in the state’s motion to intervene.

However, the consent decree prohibits the Marion County Sheriff’s Office from detaining illegal immigrants on ICE’s behalf unless ICE can produce a warrant signed by a judge, or supplies other probable cause “that the individual identified in the detainer has committed a criminal offense.” Those requirements conflict with the duty created under I.C. 5-2-18.2, and because the state “has a legitimate interest in the continued enforceability of its own statutes,” intervention should be granted, Lin wrote.

“The consent decree was approved in large part due to the Court’s analysis determining that it did not violate any Indiana statutes,” Lin wrote. “Because the State contends that the consent decree does in fact violate the Indiana statutes at issue, the harm to the State’s proper enforcement of its statutes is both caused by the consent decree and remedied by its vacatur on appeal.”

The state provided numerous reasons to support the grant of its motion to intervene. Specifically, Lin said the state was entitled to intervene as of right under Federal Rule of Civil Procedure 24(a)(2) because the consent decree “affects its interests in clear application of Ind. Code ch. 5-2-18.2 and its ability to properly guide Indiana law enforcement when faced with immigration law issues… .”

Further, the state argued it is entitled to intervention under Rule 24(b)(1) and (2) because its position shares common questions with the main action. Specifically, the defendants argued their cooperation with federal immigration officials is consistent with state and federal authority, closely tracking the state’s planned argument on appeal under I.C. 5-2-18.2

Additionally, the state said it meets the requirements of a four-factor test outlined by the Seventh Circuit Court of Appeals when considering motions to intervene, generally. Among those factors is the prejudice caused to the original parties, which Lin wrote is non-existent considering the motion to intervene does not affect the parties’ filings or submissions. The motion also noted the parties will not appeal the decree, as the state plans to do, and will not have to act contrary to the decree while an appeal is pending.

In a statement released Dec. 7, Hill said his office was not given the opportunity to represent Indiana’s legitimate interest in upholding state law, nor was it informed about the federal case before the consent decree was entered.

“Our nations immigration laws are put in place to protect the public,” Hill said in the statement. “Establishing a policy that requires law enforcement personnel to not cooperate with each other not only violates Indiana law but jeopardizes public safety.”

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