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State lawmakers have less than two weeks to work out a deal on this year’s controversial immigration legislation or the issue could once again fade away until next year.
The House heavily amended and passed Fort Wayne Republican Sen. Liz Brown’s Senate Bill 76 last week with a vote of 61-28. The House version of the bill is much different than the version the Senate passed, meaning lawmakers will need to find a compromise before they can send it to Gov. Mike Braun.
Brown must now choose whether she will send the House version to the Senate to be voted on as is or have it hashed out further in a conference committee. It is unclear which way Brown is leaning; she declined The Indiana Lawyer’s request for comment. She said in a press release on Thursday that she looks forward to “the next steps to finalize this bill so we can get it to Gov. Braun’s desk.”
The House-approved version of the bill is broad. It allows the attorney general’s office to defend law enforcement officers, government bodies and universities if they’re sued regarding immigration matters and practices; non-compliance with immigration statues and interference with immigration enforcement.
Indiana Attorney General Todd Rokita, a fierce opponent of Brown’s, made clear on Thursday that he hopes the Senate quickly concurs on the House version of the bill, saying the bill must “remain intact — no weakening amendments, no compromises.”
Brown’s legislation reflects many aspects of House Bill 1039, which died in the House earlier this session when House Judiciary Committee Chair Chris Jeter did not give it a hearing.
The bill, authored by Rep. J.D. Prescott, R-Union City, garnered significant support from state Republicans and federal immigration officials. The bill was introduced during last year’s legislative session, and the House passed it. But Brown, who was the Senate Judiciary Committee chair, did not give it a hearing.
Prescott reintroduced the legislation this year, naming it the FAIRNESS Act.
And although the FAIRNESS Act failed to pass the House in the traditional sense this session, Prescott was not ready to completely shelve the effort. After Brown’s SB 76 passed the Senate, it was referred to the House Judiciary Committee, where Prescott introduced a significant amendment to include most of the FAIRNESS Act’s key provisions, including granting greater enforcement power to the state attorney general.
Opponents of Brown’s legislation, as the Senate passed it, say it fell short in delivering “real, enforceable results.”
“Key provisions of the FAIRNESS Act, particularly those addressing unwritten sanctuary practices, data collection avoidance, and employer accountability, were missing [from SB 76], dramatically limiting the bill’s practical impact,” said Chris Pierce, legislative manager of the Federation for American Immigration Reform, in a Feb. 5 public statement.
Clarifying the scope of enforcement
The current House version of the bill establishes notable additions to Indiana Code 5-2-18.2 — which outlines the state’s anti-sanctuary city law — that were not included in the Senate version.
Section 3 of the chapter currently prohibits a governmental body or a postsecondary educational institution from enacting or implementing an “ordinance, a resolution, a rule, or a policy that prohibits or in any way restricts another governmental body or employee of a postsecondary educational institution” from communicating with or assisting federal immigration officials.
The next section prohibits a governmental body or postsecondary educational institution from restricting the enforcement of federal immigration laws.
The Senate version of SB 76 would not significantly affect either of those sections, but the House version adds a notable clarification: It makes clear that prohibited policies or rules can be both “written or unwritten.”
To the attorney general’s office, adding “or unwritten” spells out the already understood meaning of the statute.
“We have long said that ‘policy,’ even under existing law, covers both written and unwritten,” said Blake Lanning, the assistant chief deputy for the attorney general’s office, in an interview with The Lawyer last week.
“A governmental body cannot have a policy that restricts communications about immigration status, and a policy can take the form of a written, codified document,” he said. “A policy can also take the form of, you know, just the operating procedure or uniform course of practice.”
During Thursday’s debate on the bill, Bloomington Democrat Rep. Matt Pierce was concerned about including that language, calling it a “trick-bag.”
“How are you going to know what an unwritten policy is? It’s not written down anywhere,” Pierce said. “How is our local governments, our schools and our universities, how are they going to prove that an unwritten policy doesn’t exist?”
If that language stays in the final version of the legislation, it could make a difference in some cases that Rokita has pursued in recent years.
Unwritten versus written
Informal policies regarding the state’s law regarding sanctuary cities are the center of debate in at least one lawsuit the attorney general’s office brought against a Democratic sheriff.
Early last year, Rokita raised a complaint against St. Joseph County Sheriff Bill Redman that he and his officers were not cooperating with ICE.
The lawsuit — which was filed in January 2025 — alleged that in June 2024, ICE designated the St. Joseph County Police Department as a noncooperative law enforcement agency, meaning that the police department did not provide notification to ICE before releasing undocumented immigrants from custody and did not honor ICE detainer requests.
The state argued Redman and the department implemented policies and practices that restricted its officers from cooperating and communicating with federal immigration authorities — a violation of I.C. 5-2-18.2.
“Attorney General Todd Rokita has determined probable cause exists that, by implementing and maintaining these policies and practices, Sheriff Redman and SJCPD [1.1]have committed multiple violations of Indiana Code chapter 5-2-18.2,” stated the January complaint.
The department denied those allegations. In response to the lawsuit, the department stated on Facebook that it regularly communicates with ICE, and when the jail receives a detainer request from the agency, “staff promptly informs immigration officials when that individual will be released on their criminal charges for detainment by ICE.”
The St. Joseph Circuit Court ultimately dismissed Rokita’s complaint for lack of standing, ruling that the office did not provide “any real factual basis” to prove that Redman was not cooperating.
In the Oct. 15, 2025, dismissal order, Special Judge Jenny Manier questioned the state’s interpretation that “policy” as used in the statute “does not require a written formal policy for there to be a violation[2.1].”
“While it is odd if the General Assembly intended ‘policy’ to include something less formal than written or other formally memorialized code of conduct, even if it is permissible to infer a policy from a ‘pattern and practice’ of conduct, Plaintiffs must supply operative facts that give notice of the facts that support the inference. Or even the policy yielded by the inference,” Manier wrote.
Rokita appealed the case to the Indiana Court of Appeals in October.
Although he’s confident the state will prevail on appeal, Lanning, the AG’s assistant chief deputy, asserts the inclusion of “written or unwritten” in the House version of SB 76 would help clarify the Legislature’s original intent of the statute — and therefore remove one more item under the court’s consideration.
“Courts are always going to have an easier time applying a statute if the General Assembly is crystal clear about what it intends to say in the statute,” Lanning said, “and so having a clarifying amendment like this that makes clear that a policy can be both written and unwritten would certainly make it a more straightforward job for the courts to interpret and apply section three [of the statute].”
If the legislation passes with some of the additional language to I.C. 5-2-18.2, Lanning said he does not think it would result in more lawsuits coming out of the attorney general’s office.
“I wouldn’t anticipate that this would result in, you know, a whole new series of enforcement actions,” he said. “In our view, this isn’t broadening the existing law [specifically I.C. 5-2-18.2-3 and I.C. 5-2-18.2-4]; it’s simply clarifying what we already understand existing law to mean.”
Training
One of Brown’s emphases when promoting her bill was that it would provide training to local law enforcement on how to correctly comply with immigration detainer requests so they don’t face legal scrutiny. ICE detainer requests do not automatically come with a judicial warrant attached, meaning local police might not have as strong legal protection when imposing them.
SB 76 would require the Indiana Department of Correction to adopt training standards for county jails to ensure they properly cooperate with ICE detainer requests. Under Section 9 of the bill, an affirmative defense would be allowed if an officer has completed that training.
The Federation for American Immigration Reform — which stated it partnered with Rokita and Prescott to transform SB 76 — called that provision a “safe harbor” for law enforcement agencies that fail to honor detainers.
“This framed detainer noncompliance as a training issue, even though detainers are routine law-enforcement requests and the vast majority of sheriffs already honor them,” said Shari Rendall, director of state and local engagement at the Federation, in a public statement.
Prescott’s amendment removed that defense and provides that compliance with those training standards and the results of a jail inspection under I.C. 11-12-4 does not “preclude and are not a defense to the attorney general bringing an action” under the state’s anti-sanctuary city statute.
Lanning said the original provision was included under the state’s law regarding the Department of Corrections’ physical inspection program.
“There’s no way that a Department of Corrections physical inspection program is ever going to be able to identify detainer compliance,” he said.
Instead, Lanning said the attorney general’s office evaluates whether a local jail is honoring detainers not through physical inspections but through communications with federal agencies.
“If the state of Indiana wants to ensure that its local jails are complying with detainers, it cannot rely on a physical jail inspection process to be the primary way of determining compliance,” Lanning said.
Pierce criticized removing the defense provision, saying, “It doesn’t matter” whether jails go through training or inspections because “the attorney general can still come in and accuse you of not complying.”
Lanning disagreed with Pierce’s conclusion.
“Although the jail inspection process cannot determine whether or not someone is actually complying with detainers, one thing that the jail inspectors can do in a physical inspection is determine whether or not the jail has adequate written procedures in place to comply with detainers,” he said.
Section 6 of the bill states that if a jail is found in compliance through an inspection, the attorney general would not impose a civil penalty. But even though a jail can pass an inspection and not face a civil penalty, the attorney general could still bring an action to seek an injunction and other relief necessary to “ensure future compliance,” Lanning said.
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