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Merrillville town leaders have tabled a resolution related to Indiana Attorney General Todd Rokita’s demand that they not interfere with federal immigration real estate transactions.
The Merrillville Town Council voted unanimously Tuesday evening to hold off on a vote on Resolution 26-34, which would rescind a resolution it passed earlier this year opposing U.S. Immigration and Customs Enforcement’s reported plan to buy property within city limits for use as a detention or processing facility.
Council Vice President Rhonda Neal made the motion to table the resolution in order to give Rokita’s office a chance to respond to the council.
“We just reached out to him yesterday, so we’re going to wait to see what they [say],” Neal said. “We are still standing in solidarity of what we said initially. But we’re waiting for the attorney general to reach back out.”
The move was made to a chorus of cheers and applause from residents who packed the meeting. Many spoke during a public comment period earlier in the meeting opposing a retraction of the city’s previously announced stance.
In a June 24 letter to the council, Rokita accused Merrillville leaders of sabotaging federal efforts to place an immigration detention facility in the area, saying several transactions had fallen through because town officials contacted property owners and others involved in discussions to “discourage deals.” ICE previously did not confirm to The Indiana Lawyer whether that was the case.
In a statement provided to The Indiana Lawyer last month, the town of Merrillville said it was surprised by Rokita’s letter – and its timing.
“The Town Council passed Resolution No. 26-02 six months ago,” the town council said. “The Attorney General’s letter also comes as Merrillville leaders are actively managing one of the largest disaster recovery efforts in the town’s history following the June 11 confirmed EF2-tornado, which destroyed more than 200 buildings in Merrillville and damaged more than 160 others.”
The Town of Merrillville said it intended to honor all state laws, adding that the town council did not intend to violate any provision of Indiana Code § 5-2-18.2, the state’s anti-sanctuary city statute, by passing Resolution 26-02 earlier this year.
But the council also said it hoped that Rokita agrees with it that the council’s resolution, as an expression of opinion and not having the force of law, is consistent with the First Amendment of the U.S. Constitution, and “not at all” violative of the state statute.
During Tuesday’s meeting, Councilor Keesha Hardaway reiterated that point, saying she feels the Rokita’s actions could constitute a freedom of speech violation.
“We represent 5,000 residents each, and we are their voice,” Hardaway said. “And he is trying to squelch the voices of the town of Merrillville, and I will not tolerate that.”
The resolution
After learning from a December report by The Washington Post that ICE was considering using industrial warehouses as immigration detention or processing facilities, and that Merrillville was listed as a potential site, the town council adopted Resolution 26-02, which formally opposed such a facility within city limits, citing the potential stress that would be placed on public resources.
“We are making it clear now that a detention or processing facility does not align with Merrillville’s values, planning standards or vision for the future,” Council President Rick Bella said in a Jan. 28 press release after the council unanimously adopted the resolution.
But last month, Rokita said federal authorities alerted his office to multiple instances over the past several months in which Merrillville officials had contacted potential sellers to discourage them from doing business with ICE.
Citing the newly revised Indiana Code § 5-2-18.2-4, Rokita warned Merrillville officials that a governmental body may not “in any way” limit or restrict the enforcement of federal immigration laws to less than the full extent permitted by federal law.
Since federal law allows ICE to purchase property to use as detention facilities, Rokita said Indiana law “forbids any action by a local government entity that would limit or restrict ICE’s ability to do so.”
Rokita gave the town leaders until Wednesday, July 15, to revoke its resolution, stop any efforts to discourage real estate transactions between federal immigration authorities and Merrillville property owners and issue a public statement confirming that the town would not oppose any attempt by ICE to buy property within city limits, nor retaliate against anyone who does business with ICE.
If the town leaders failed to comply, Rokita said he planned to exercise his new powers, which include imposing a civil penalty of up to $10,000 for each violation, against Merrillville.
At Tuesday’s meeting, the council tabled Resolution 26-34 – which would officially rescind Resolution 26-02 – and would serve as the town’s required public statement, making clear to Merrillville property owners that the town will not oppose any attempt by ICE to acquire land or retaliate against those who engage in transactions with ICE.
Challenges to the new law
Although several provisions of the updated statute went into effect earlier this year, many others, including sanctions on businesses that knowingly hire unauthorized immigrants, started on July 1.
The law also now requires governmental agencies in receipt of a federal immigration detainer request – which are what ICE issues to local law enforcement agencies, requesting officials to hold a detainee up to 48 hours beyond their normal release date, so that ICE has more time to arrive and determine the next course of action – to comply with “all requests made” in the detainer form. Historically, agencies honored detainer requests voluntarily.
Monroe County Sheriff Ruben Marté is currently challenging that part of the law, saying it would encourage his officers to violate an individual’s Fourth Amendment rights.
On June 30, a special judge granted Marté’s request for a preliminary injunction, halting the detainer compliance provision of the law – but only in Monroe County.
Judge Luke Rudisill held that Section 9(a)(3) of the statute may be unconstitutional, but he only enjoined Rokita from enforcing that provision as it applies to Marté and his office.
“If the harm were based upon the constitutional rights violation of a class of individuals who lack such presumed knowledge and resources, then perhaps this Court would be persuaded to broaden the scope of this injunction,” Rudisill wrote.
Rokita appeared to consider the court’s decision a win because it only applies to one sheriff’s office.
Shortly after the June 30 order, the Attorney General’s Office appealed the decision and has since asked for a stay in the case, pending the appeal.
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