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With the clock running down, a Monroe County judge ruled today that part of the state’s new, extensive immigration law may violate the Indiana Constitution.
Just one day before the law was set to go into effect, Special Judge Luke Rudisill granted Monroe County Sheriff Ruben Marté’s request for a preliminary injunction against the recently passed Senate Enrolled Act 76, or the Indiana FAIRNESS Act. Specifically, Indiana Attorney General Todd Rokita is now enjoined from enforcing Section 9(a)(3) of the law, which would have required law enforcement agencies holding an individual subject of a federal immigration detainer request to “comply with all requests made” in the detainer form.
Rudisill determined that Marté had met the sufficient burdens for injunctive relief, namely, a likelihood of success, irreparable harm and a balance of harm and the public interests.
A spokesperson for the Indiana Attorney General’s Office did not immediately return The Indiana Lawyer’s text requesting comment.
Rudisill emphasized in his order that even though Marté had made a sufficient argument that Section 9(a)(3) violates the Constitution, the majority of the revised Indiana Code 5-2-18.2 appears to be constitutional.
Alexandra Lichtenstein, an attorney with Georgetown Law who is representing the sheriff, did not immediately return The Lawyer’s call.
Earlier this month, a federal judge rejected Marté’s request for an injunction on jurisdictional grounds, saying the case was better suited for state courts. But the judge did not delve into the main substance of the dispute, namely, whether SEA 76 would encourage law enforcement officers to violate an individual’s Fourth Amendment rights.
The new law requires state agencies to honor immigration detainer requests – a practice that had historically been voluntary.
U.S. Immigration and Customs Enforcement issues immigration detainer requests to local law enforcement agencies, asking them to continue holding an immigrant suspected of living here illegally up to 48 hours beyond his or her intended release. That gives federal authorities enough time to travel to the jail and determine if they want to move forward with deporting the detainee.
Shortly after the federal judge’s decision, Marté filed a counterclaim in Monroe County, asking for a temporary restraining order or preliminary injunction to stop Section 9 of SEA 76. The claim was filed as part of his long-standing dispute with Rokita’s office over an agency-wide policy he established in 2023 regarding how his officers would handle federal immigration detention.
Similar to the federal litigation, Marté argued in state court that the Fourth Amendment of the Indiana Constitution prevents him from detaining an individual based solely on an ICE detainer request, since those requests are not necessarily accompanied by a judicially signed warrant or show probable cause to arrest an individual.
The Indiana Court of Appeals has held a similar position.
In the late 2010s case City of Gary v. Nicholson, the state challenged the legality of the city of Gary’s “welcoming ordinance”, which prohibited any city employee or department from asking about an individual’s immigration status or denying benefits and services without a court order. The ordinance also barred 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 Lake Superior Court ruled against the city of Gary and prohibited the city from enforcing parts of its ordinance. But in 2021, a split Court of Appeals found that only limited portions of Gary’s ordinance violated state statutes, thus partially affirming, reversing and remanding the case.
Although the case dove into several other matters, the city of Gary argued that Indiana law does not authorize state or local officers to arrest or detain an individual based solely on a civil immigration detainer. The Court of Appeals agreed.
“A state cannot expand the ‘limited circumstances’ in which state and local officers may perform the functions of immigration officers,” Court of Appeals Judge Edward Najam wrote in a Dec. 10, 2021, opinion. “We hold that federal law does not permit detentions by state and local officers based solely on civil immigration detainers or administrative warrants.”
But Rokita maintained in a June 29 filing in Marté’s case that ICE detainers do not violate the Fourth Amendment, calling the Court of Appeals’ decision in City of Gary “flawed.”
“Arrests in the immigration context for civil violations can be made regardless of whether law enforcement has a judicial warrant or whether a criminal violation is involved,” the state argued in a Monday filing.
Rokita also asserted that detainer requests do offer probable cause, citing that on a detainer request form, an ICE officer “certifies that probable cause of removability exists. Thus, an ICE-detainer request evidences probable cause of removability in every instance.”
Special Judge Rudisill was not satisfied with the state’s arguments.
“Case law is also clear that a law enforcement officer’s detention of an individual beyond the completion of that individual’s sentence violates the 4th Amendment because that detention constitutes a ‘re-arrest’ which is an ‘unreasonable seizure’, unless there is probable cause to believe the detainee committed a crime or the detention falls within a clearly established civil law exception,” Rudisill wrote. “Since an ICE Detainer Request does not supply probable cause of commission of a crime as it only alleges a violation of civil law, a state or local law enforcement officer violates the 4th Amendment by complying with it unless that compliance is a recognized civil law exception.”
Rudisill emphasized in Tuesday’s order that the injunction is only based on Marté’s potential liability for being compelled to violate the U.S. and Indiana Constitutions. The injunction is not based on whatever harm may come to the detainees whose rights may be violated.
“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.
The case is State of Indiana ex rel. Todd Rokita, Attorney General of Indiana v. Sheriff Ruben Marté, in his Official Capacity as Monroe County Sheriff, Monroe County Sheriff’s Office, 53C06-2407-PL-001733.
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