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City of Gary fighting sanctuary city lawsuit

March 6, 2018

The city of Gary is defending its welcoming ordinance, filing a motion for summary judgment last week in Lake Superior Court against plaintiffs who claim the municipal government violates the state’s “sanctuary city preemption law.”

Called the “first real salvo” against sanctuary cities, the lawsuit contends the Gary ordinance does not comply with Indiana’s Citizenship and Immigration Status Information and Enforcement of Federal Immigration Laws statute. Instead, the lawsuit claims, the ordinance restricts local police and sheriff officers from sharing information and cooperating with federal immigration officials.

Gary countered the plaintiffs are cherry-picking sections of the Indiana law to create an “overarching super-mandate” to cooperate with state and federal officials on enforcement of state and federal immigration laws. The ordinance is meant to ensure that every individual is treated equally regardless of his or her immigration status.

Representing the plaintiffs are the Immigration Reform Law Institute and The Bopp Law Firm PC, founded by Terre Haute attorney James Bopp, who successfully argued against campaign finance laws in Citizens United. The city of Gary is being represented by Georgetown Law’s Institute for Constitutional Advocacy and Protection and the Oakland, California-based Public Right Project.

The lawsuit, which seeks to enjoin the city from continuing to enforce the ordinance, was brought by four Indiana residents. The defendants are the city of Gary, its mayor, Karen Freeman-Wilson and members of the common council. Both sides have filed motions for summary judgment.

In an opinion piece that appeared in The Hill shortly after the lawsuit was filed, Brian Lonergan, the spokesman for the Immigration Reform Law Institute, described Gary as a sanctuary city that is violating state and federal laws as well as breeding chaos and unfairness.

“The case against Gary represents the first real salvo against blatant disregard for our laws, safety and sovereignty,” Lonergan wrote. “Thanks to the spreading toxic ideology of sanctuary cities, many more will be required.”

In a press release about the motion for summary judgment, Gary Mayor Karen Freeman-Wilson underscored the city does not plan to back down. 

“Our city passed the ordinance to demonstrate Gary’s commitment to ensuring public safety for all city residents and to enable all of our communities to report crime and cooperate with our police without fear,” Freeman-Wilson stated. “Our welcoming city ordinance is fully consistent with state and federal law, and this new filing demonstrates our commitment to fighting this lawsuit and the dangerous effort to undermine local law enforcement priorities it represents.”

The welcoming ordinance was passed by the common council on a 6-to-3 vote and signed by Freeman-Wilson in May 2017.

It prohibits any city employee or department from asking about an individual’s immigration status or denying benefits and services without a court order. Also, it bars city employees and departments from threatening anyone based on his or her immigration status, and from stopping, arresting or detaining anyone at the request of the federal government.  

The plaintiffs argue the ordinance violates Indiana Code 5-2-18.2, the Citizenship and Immigration Status law, which was passed by the Indiana General Assembly in 2011 and amended in 2017.

They assert the defendants “knowingly and intentionally” violated the “Full-Extent-Enforcement-Cooperation Mandate,” the “Information-Cooperation Mandate” and “the (Law Enforcement Officer)-Cooperation-Mandate” of the Indiana law.

Pointing to a handful of acts by Congress and the U.S. Supreme Court’s decision in Arizona v. United States, 567 U.S. 387 (2012), the plaintiffs argue the states are expected help enforce federal immigration laws and cooperate in the identification, arrest, detention and removal of undocumented residents.

The city contends the state law is narrower than the plaintiffs’ interpretation.

Under the Indiana law, the city argues, local governments are prohibited from enacting policies that limit the sharing of information and restrict federal officers from enforcing federal immigration law. The law does not require that police and sheriff deputies gather information on a person’s immigration status or impose a duty to cooperate with federal immigration authorities.

To support its stance, the city refers the legislative history of SEA 590, which created I.C. 5-2-18.2. Specifically, the final draft of the bill deleted passages that would have allowed detained individuals to be transferred to the custody of Immigration and Customs Enforcement and would have required a local law enforcement officer to verify an individual’s immigration status.

In addition, language was also removed that would have directed the state police to negotiate an agreement with the U.S. Department of Homeland Security to authorize state and local law enforcement to enforce federal immigration laws. The original draft of the bill raised concerns, the city maintains, that federal immigration enforcement would become the responsibility of police officers.

The case is Jeff Nicholson, Douglas Grimes, Greg Serbon and Cheree Calabro v. City of Gary, Indiana; City of Gary Common Council; Herbert Smith, Jr., Rebecca L. Wyatt, Michael L. Protho, Mary Brown, Carolyn D. Rogers, Linda Barnes Caldwell, Lavetta Sparks-Wade, Ronald Brewer, and Ragen Hatcher, in their official capacities as City of Gary Common Council members; and Karen Freeman-Wilson, in her officials capacity as City of Gary Mayor, 45D05-1802-MI-00014.

 

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