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Case 1:11-cv-00708-SEB-MJD Document 1 Filed 05/25/11 Page 1 of 20 PageID #: 1

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION

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INGRID BUQUER, BERLIN URTIZ,

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and LOUISA ADAIR, on their own behalf )

and on behalf of those similarly situated, )

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Plaintiffs,

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v.

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CITY OF INDIANAPOLIS and the

)

MARION COUNTY PROSECUTOR, in )

his official capacity, CITY OF

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FRANKLIN;JOHNSON COUNTY

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SHERIFF, in his official capacity, and the )

JOHNSON COUNTY PROSECUTOR, )

in his official capacity,

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Defendants.

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1 _l-ev- 0 70 8 SEB -MID

CLASS ACTION COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF I NOTICE OF CHALLENGE TO CONSTITUTIONALITY OF STATE STATUTE

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Introduction

1. On May 10, 2011, the Governor of the State of Indiana signed into law Senate Enrolled

Act 590 ("SEA 590"), the relevant portions of which will be codified at Indiana Code § 34-28-

8.2-1, et seq. and Indiana Code § 35-33-1-1, et seq., effective July 1, 2011. The law allows state

and local law enforcement officers to make warrantless arrests of a person who has "a removal

order issued for the person by an immigration court," or "a detainer or notice of action issued"

for them, even though they have been lawfully released by federal immigration officials, and

even though they have committed no crime. Additionally, the law expansively allows law

enforcement officials to arrest anyone solely because he or she "has been indicted or convicted

of an aggravated felony, as defined in 8 U.S.C. 1101(a)(43)," regardless of whether the person is

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Case 1:11-cv-00708-SEB-MJD Document 1 Filed 05/25/11 Page 2 of 20 PageID #: 2

a U.S. citizen, was never actually convicted of the offense, has been released on bail, or has already served the sentence tor the aggravated felony. Finally, the law makes it unlawful for foreign nationals in Indiana to offer their foreign government-issued consular identification card for identification purposes, and for any governmental or private entity to accept a consular identification card for identification purposes. 2. This action seeks declaratory and injunctive relief on behalf of a class of persons who have either "a removal order issued for the person by an immigration court," or "a detainer or notice of action issued" for them, or who have "been indicted for or convicted of one (1) or more aggravated felonies (as defined in 8 U.S.C. 1101(a)(43)," even though they have been lawfully released by federal or state law enforcement officials. Insofar as SEA 590 authorizes state and local law enforcement officers to arrest persons without reasonable suspicion or probable cause of any unlawful conduct, much less criminal activity, it violates the Fourth Amendment's prohibition on unreasonable seizures. SEA 590 also conflicts with and is preempted by the Immigration and Nationality Act, 8 U.S.C. § 1101, et seq., which provides a comprehensive statutory framework for the regulation of immigration that among other things, contains detailed provisions governing the detention and release of non-citizens in removal proceedings. 3. This action also seeks declaratory and injunctive relief on behalf of a class of persons who regularly use their consular identification cards for identification purposes, including, among other things, when banking or interacting with consular officials. When SEA 590 goes into effect July I, 2011, the class will no longer be able to use this method of identification without violating Indiana law, and their consular identification cards will become useless in the state of Indiana. SEA 590's prohibition on consular identification cards is directly preempted by federal regulations that authorize banks to accept foreign government-issued photo identification

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for verifying the identity of account holders. See 31 C.F.R. § 1020.220. The law is also preempted by the President's constitutional authority to conduct foreign affairs insofar as state restrictions on the use of consular identification cards interferes with the United States carrying out certain treaty obligations with foreign countries and might result in foreign governments retaliating by imposing similar restrictions on U.S. nationals abroad. Finally, the prohibition on the use of consular identification cards violates the Due Process Clause of the Fourteenth Amendment of the U.S. Constitution because it is not rationally related to any legitimate governmental purpose.
Jurisdiction, Venue, and Cause of Action 4. This Court has jurisdiction of this cause pursuant to 28 U.S.C. § 1331. 5. Venue is proper in this judicial district pursuant to 28 U.S.C. § 1391. 6. Declaratory relief is authorized by Rule 57 of the Federal Rules of Civil Procedure and 28 U.S.C. §§ 2201 and 2202. 7. This action is brought pursuant to 42 U.S.C. § 1983 to redress the deprivation, under color of state law, of rights secured by the Constitution and laws of the United States, and as a preemption claim brought pursuant to the decision of the United States Supreme Court in Shaw v. Delta Airlines, inc., 463 U.S. 85, 96 n.l4 (1983) (holding that a plaintiff presenting a preemption claim "presents a federal question which the federal courts have jurisdiction under 28 U.S.C. § 1331 to resolve" even in the absence of a cause of action under 42 U.S.C. § 1983).
Parties 8. Ingrid Buquer is a citizen of Mexico and is a resident of Franklin, Indiana in Johnson County. 9. Berlin Urtiz is a citizen of Mexico and is a resident of Marion County. He has been a
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lawful permanent resident of the United States since 2001.

10. Louisa Adair is a citizen of Nigeria and is a resident of Marion County.

11. The City of Indianapolis is the entity with supervisory authority over the Indianapolis

Metropolitan Police Department and the City of Franklin supervises the Franklin Police

Department.

12. The Marion County and Johnson County Prosecutors are the persons charged with

prosecuting civil offenses in Marion County, and are sued in their official capacities.

13. The Johnson County Sheriff provides law enforcement services in Johnson County.

Class Action Allegations

14. Plaintiffs bring this action on their own behalf and on behalf of two (2) classes of

similarly situated persons against the defendants, pursuant to Rule 23(a) and (b)(2) of the Federal

Rules of Civil Procedure.

15. The first class ("Class A") is represented by Berlin Urtiz, Louisa Adair, and Ingrid

Buquer, and is defined as:

all persons in Marion and Johnson Counties, Indiana, or who will be in Marion and Johnson Counties, Indiana, who are or will be subject to warrantless arrest pursuant to Section 19 of SEA 590 based on a determination that: a removal order issued against them by an immigration court; have, or will have, a detainer or notice of action issued for or against them by the United States Department of Homeland Security; or they have been, or will be, indicted for or convicted of one (1) or more aggravated felonies, as defined in 8 U.S.C. 1101(a)(43).

16. As defined, Class A meets all the requirements of Rule 23(a) of the Federal Rules of

Civil Procedure. Specifically:

a. The class is so numerous that joinder of all members is impracticable. The

I"

precise number is unknown but it is thought to be in the hundreds if not

I

thousands.

b. There are questions of law and fact common to the proposed class including: (1) whether SEA 590 violates the Fourth Amendment of the U.S.

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Constitution; and (2) whether SEA 590 is preempted by the U.S. Constitution and federal law.

c. The claims of the representative parties are typical of those of the class.

d. The representative parties will fairly and adequately protect the interests of the class.

17. The second class ("Class B") is represented by Ingrid Buquer and is defined as:

all persons in Marion and Johnson Counties, Indiana, or who will be in Marion and Johnson Counties, Indiana, who possess, or will posses, a valid consular identification card and are using it, or will use it, for non-fraudulent identification purposes.

18. As defined, Class B meets all the requirements ofRule 23(a) ofthe Federal Rules of Civil

Procedure. Specifically:

a. The class is so numerous that joinder of all members is impracticable. It is

believed that in the last five years the Mexican Consulate in Indianapolis has

issued more than 50,000 consular identification cards. And in 2002 and 2003

alone, Mexico issued more than 2.2 million consular identification cards in the

United States. See U.S. Government Accountability Office, Consular

Identification Cards Accepted within United States, but Consistent Federal

Guidance

Needed,

p.J,

Aug.

2004

(available

at:

http://www.gao.gov/new.items/d0488l.pdf(last visited May 13, 2011)).

b. There are questions of law and fact common to the proposed class including: (1) whether SEA 590 is preempted by the U.S. Constitution and federal law and (2) whether SEA 590 violates the Due Process Clause of the U.S. Constitution.

c. The claims of the representative party are typical of those ofthc class.

d. The representative party will fairly and adequately protect the interests of the class.

19. The further requirements of Rule 23(b)(2) of the Federal Rules of Civil Procedure are met

for both Class A and Class B in this cause in that have at all times acted and have refused to act

in a manner generally applicable to the class, thereby making appropriate final injunctive and

declaratory relief with respect to the class as a whole.

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20. Counsel for the plaintiffs are appropriate and adequate attorneys to represent the class
and should be so appointed pursuant to Rule 23(g) of the Federal Rules of Civil Procedure.
The Challenged Statute
Senate Enrolled Act 590
21. On April 29, 2011 the Indiana State Senate and Indiana House of Representatives
adopted SEA 590, which was signed into law by the Governor ofthe State oflndiana on May 10,
2011, effective July 1, 2011.
Section 19: additional causes for arrest
22. Section 19 of SEA 590 (adding Indiana Code §§ 35-33-1-1(a)(11) to (13)) provides in
part:
(a) A law enforcement officer may arrest a person when the officer has:
* * * *
(11) a removal order issued tor the person by an immigration court; (12) a detainer or notice of action for the person issued by the United States Department of Homeland Security; or (13) probable cause to believe that the person has been indicted for or convicted of one (1) or more aggravated felonies (as defined in 8 U.S.C. 1101(a)(43)).
IND. CODE§ 34-33-1-1 (effective July 1, 2011).
Section 18: prohibition on the use ofconsular identification cards
23. Section 18 of SEA 590 (adding Indiana Code§ 34-28-8.2) provides in part:
Chapter 8.2. Offenses Related to Consular Identification Sec. 1. As used in this chapter, "consular identification" means an identification, other
than a passport, issued by the government of a foreign state for the purpose of providing consular services in the United States to a national of the foreign state.
Sec. 2. (a) This section does not apply to a law enforcement officer who is presented with a consular identification during the investigation of a crime.
(b) Except as otherwise provided under federal law, a person who knowingly or intentionally offers, accepts, or records a consular identification as a valid form of identification for any purpose commits a Class C infraction. However, the person commits:
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(1) a Class B infraction for a second offense; and (2) a Class A infraction for a third or subsequent offense. IND. CODE§ 34-28-8.2 (effective July 1, 2011). 24. Under current Indiana law the penalties for a civil infraction are as follows: (a) A judgment of up to ten thousand dollars ($10,000) may be entered for a violation constituting a Class A infraction. (b) A judgment of up to one thousand dollars ($1 ,000) may be entered for a violation constituting a Class B infraction. (c) Except as provided in subsection (f), a judgment of up to five hundred dollars ($500) may be entered for a violation constituting a Class C infraction. IND. CODE § 34-28-5-4.
Factual Allegations Facts relating to additional causes for arrest 25. Indiana Code § 34-33-1-1 authorizes state and local law enforcement officers to arrest and detain the plaintiffs on the sole basis of a removal order, detainer, notice of action, or an indictment or conviction for an aggravated felony, as defined by 8 U.S.C. § 110l(a)(43). 26. State and local law enforcement officers have no general authority to enforce federal immigration law by making arrests for civil violations of federal immigration law. 27. Only in narrowly defined circumstances does federal law authorize state officers to assist in immigration enforcement, and otherwise reserves immigration enforcement authority to the federal government. 28. State and local law enforcement officers in Indiana do not fall within these exceptions. 29. For example, under 8 U.S.C. § 1357(g), the federal government can enter into what are commonly referred to as "287(g) agreements" that allow state and local law enforcement officers to enforce immigration laws under limited circumstances and under the supervision of ICE. 30. However, currently neither the State of Indiana nor any political subdivision therein has
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entered into a 287(g) agreement with the federal government. See U.S. Immigration and Customs Enforcement, Fact Sheet: Delegation of Immigration Authority Section 287(g) Immigration and Nationality Act (available at: http://www.ice.gov/news/library/factsheets/ 287g.htm) (last visited May 20, 2011). 31. Furthermore, SEA 590 authorizes warrantless arrests in circumstances where even federal immigration officers would not be authorized to make an arrest without a warrant. See 8 U.S.C. §§ 1357(a), (d); 8 C.F.R. §§ 287.1-287.3, 287.5, 287.8, 287.10 (describing limited circumstances and procedures necessary for warrantless arrests by federal immigration officials). 32. The federal government has exclusive power over immigration matters. The U.S. Constitution grants the federal government the power to "establish a uniform Rule of Naturalization," U.S. Const. art. I, § 8, cl. 4, and to "regulate Commerce with foreign Nations," U.S. Const. art. I, § 8, cl. 3. In addition, the Supreme Court has held that the federal government's power to control immigration is inherent in the nation's sovereignty. 33. The Immigration and Naturalization Act ("INA") provides a comprehensive framework for apprehending, detaining and deporting aliens who are removable under federal law. 8 U.S.C. § 1226, et seq. 34. The INA is not only concerned with the detention and removal of aliens but represents a careful and considered balance of national law enforcement, foreign relations, and humanitarian interests. 35. Unlawful presence in the United States does not subject an alien to criminal penalties and incarceration, although unlawful presence may subject the alien to the civil remedy of removal. See 8 U.S.C. §§ 1182(a)(6)(A)(i), 1227(a)(l)(B)&(C). 36. The U.S. Department of Homeland Security is the agency charged with administering and
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enforcing the INA and other laws related to immigration, primarily through its components, U.S. Immigration and Customs Enforcement ("ICE"), U.S. Customs and Border Protection ("CBP"), and U.S. Citizenship and Immigration Services ("USCIS"). See 8 U.S.C. § 1103. 37. In recognizing the limited resources of administration and law enforcement officials, the INA also vests the executive branch with considerable discretion in enforcing the provisions of federal immigration laws, generally allowing federal agencies to ultimately decide whether particular immigration remedies are appropriate in individual cases. 38. As a result, the Congress has given ample discretion to the federal government to prioritize for arrest, detention, prosecution, and removal those aliens who pose a danger to national security or a risk to public safety. 39. Therefore, many removable aliens do not remain in detention during the pendency of removal proceedings or even after a final removal order is issued by an immigration judge. 40. For example, 8 U.S.C. § 1226(a) provides that the U.S. Attorney General may release a removable alien on bond or parole pending final removal and may grant the alien work authorization. 41. Even after an immigration judge issues a removal order pursuant to 8 U.S.C. § 1229a, an alien has both a right to a motion to reconsider and an appeal, and may remain released on bond until the removal order is finalized. See 8 U.S.C. § 1229a(c)(5) & (6); 8 C.F.R. § 1241.1. 42. An alien may also file a motion to reopen removal proceedings under certain circumstances even after a removal order is finalized, which may have the effect of staying a removal pending final disposition ofthe motion. See 8 U.S.C. § 1229a(c)(7). 43. For example, aliens who have cause to reopen removal proceedings could then seek lawful status in the United States, such as asylum, certain nonimmigrant visas (such as aU-visa),
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or lawful permanent residency, either in removal proceedings or upon termination of removal proceedings. 44. Additionally, if the U.S. Attorney General fails to remove the alien 90 days after the removal order is finalized, the alien is released from detention subject to supervision by the Attorney General. 8 U.S.C. § 1231(a)(3). 45. In lieu of deportation proceedings, the Attorney General may also "permit an alien voluntarily to depart the United States" during a predetermined period of time. 8 U.S.C. § 1229c. 46. Therefore, there are a variety of scenarios by which a potentially removable alien would not be detained or is not detainable pending his or her removal. 47. Indiana Code § 34-33-1-l(a)(ll) (effective July 1, 2011) allows state and local law enforcement officers to make a warrantless arrest of a person based solely on the issuance of a removal order by an immigration judge without consideration of the wide range of circumstances under federal law where these individuals would be at liberty pending the conclusion of their removal proceedings. It does not contain an exception for non-citizens who have been released pending removal proceedings or judicial review, nor could state and local officers in Indiana determine such facts in the field. 48. Indiana Code § 34-33-1-1 (a)(11) does not require local or state law enforcement officers to coordinate in any way with DHS to confirm removability or if there is a lawful reason the person is not in the custody ofDHS. 49. Louisa Adair is a citizen of Nigeria who has a removal order that was issued against her by an immigration court in 1996. 50. However, she is currently released on an Order of Supervision, whereby she reports to
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ICE every six (6) months. 51. Louisa Adair has valid work authorization from DRS and has a pending request for prosecutorial discretion before the ICE Chief Counsel's office to join her Motion to Reopen and Terminate Removal Proceedings. If granted, she will be eligible to apply for lawful permanent residency because her mother is a U.S. citizen and she has an approved and current I-130 visa petition. 52. Louisa Adair will be subject to arrest under Indiana Code § 34-33-1-1(a)(ll) when the law goes into effect on July 1, 2011 even though she has committed no crime and has been released by federal immigration authorities, solely because she has a removal order issued against her. 53. Indiana Code§ 34-33-1-1(a)(12) also allows a state or local law enforcement officer to arrest a person on the sole basis of"a detainer or notice of action" issued by DHS. 54. An immigration detainer is a "request" issued by ICE to a federal, state, or local law enforcement agency to advise ICE of the imminent release of an alien already in the custody of that law enforcement agency on independent charges. 8 C.P.R. § 287.7(a). 55. A detainer purports to request a law enforcement agent to detain an alien for up to 48 hours (not including weekend days and holidays) past the time a detainee would otherwise be released to permit ICE to assume custody. 8 C.F.R. § 287.7(d). However, the detainer immediately expires at the end of the 48-hour period. !d. 56. Generally, immigration detainers arc not issued for individuals who are not in criminal custody. And even when an individual is in criminal custody, the mere issuance of a detainer does not represent probable cause that the detainee has violated immigration laws, and it is not independent grounds for arrest. The issuance of an immigration detainer does not even indicate
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that an individual will ultimately be placed in removal proceedings. 57. Nonetheless, Indiana Code § 34-33-1-l(a)(l2) authorizes a law enforcement officer to arrest a person on the sole basis of the issuance of a detainer, regardless of the time period it was issued, whether it was issued in error or not, or whether ICE ultimately decides to follow-up on the detainer by actually taking the person into custody. 58. Indiana Code§ 34-33-1-l(a)(12) also authorizes a warrantless arrest based upon a "notice of action." 59. A notice of action is a general administrative response issued by DHS. Often it is in response to an application by an alien, for example, an application for an immigrant or nonimmigrant visa, refugee status, or even an application for naturalization to become a U.S. citizen. See, e.g., 8 C.F.R. § 207.7(f)(l) (establishing Form I-797, a notice of action form used to inform refugees that their application to admit spouse or child has been approved); 8 C.F.R. § 245.2(C) (establishing receipt of visa application); 8 C.F.R. § 214.15 (approval for visa application). 60. Lawfully present aliens are issued notices of action regularly and a notice of action is not necessarily grounds for arrest, detention, or removal under the INA. To the contrary, a notice of action is often notice that an applicant is progressing through the administrative process towards permanent residency. 61. Louisa Adair is the beneficiary of an I-797 notice of action issued by USCIS, establishing her relationship to her U.S. citizen mother, and serves as a basis for pursuing lawful permanent residency. 62. Ingrid Buquer lives in Franklin, Indiana but is frequently in Marion County. 63. Ingrid Buquer has applied for aU-visa and has received an I-797 notice of action issued
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by USCIS indicating receipt of her application. She is eligible for a U-visa because she is a victim of and witness to a violent crime, and has been helpful to the government in prosecuting the case. See 8 U.S.C. § llOl(a)(lS)(U) (describing the requirements for aU-visa). 64. Ms. Adair and Ms. Buquer will both be subject to arrest under Indiana Code § 34-33-1l(a)(l2) on the sole basis of a notice of action issued by USCIS, despite the fact that each notice of action is a step toward pursuing lawful status, and despite the fact that Ms. Adair and Ms. Buquer have not committed a criminal offense. 65. Indiana Code§ 34-33-1-l(a)(13) allows a person to be arrested if he has been "indicted or convicted for one (1) or more aggravated felonies (as defined in 8 U.S.C. 1101(a)(43))." 66. Being charged with an offense that might be aggravated felony is not grounds for deportation-only a conviction for an aggravated felony is grounds for removal. See 8 U.S.C. § 1227(a)(2)(A)(iii). 67. Furthermore, determining what cnmes constitute "aggravated felonies" under federal immigration law is an enormously complex legal conclusion that an officer is not trained to make in the field. 68. Under many subsections of the federal statute defining "aggravated felony," whether the offense meets the definition ultimately depends upon facts that cannot be determined until a person is convicted and sentenced. See, e.g., 8 U.S.C. §§ 1101 (a)(43)(F), (G), (J), (R), (S), (Q), (T). 69. Finally, 8 U.S.C. § 1101(a)(43) is a definitional provision that lists criminal offenses that are not necessarily limited to offenses committed by aliens. 70. A plain reading of the statute allows for any person who has been indicted or convicted at any time in his or her life to be arrested-even if this person is an American citizen and has
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already served his sentence.

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j.

71. Berlin Urtiz is a Mexican citizen and has been a permanent resident of the United States

since 2001.

72. In 2005, Mr. Urtiz was convicted of theft by the Johnson County Court and sentenced to

two (2) years in the Indiana Department of Correction, suspended to probation with credit for

two days executed-an aggravated felony as defined by 8 U.S.C. § 1101(a)(43).

73. In 2010, approximately three years after serving his sentence, Mr. Urtiz was arrested by

ICE on the grounds that he had a record for an aggravated felony. He was detained for roughly

four months pending removal.

74. Shortly after his detention by Immigration and Customs Enforcement agents, Mr. Urtiz

filed a motion for post conviction relief to have his conviction vacated and reduced to a

misdemeanor, pursuant to his plea agreement.

75. On or about September 20, 2010, Mr. Urtiz was granted post-conviction relief and upon

an order from the immigration judge terminating removal proceedings he was released from

immigration custody on September 21, 2001.

76. In November of 2010, his conviction for theft was vacated and he was convicted and

sentenced to the misdemeanor crime of conversion. See Ind. Code § 35-43-4-3 (defining the

crime of conversion). This is not an aggravated felony.

77. Mr. Urtiz was not required to serve more time and he maintained his permanent resident

status.

78. Nonetheless, Mr. Urtiz will be subject to arrest under Indiana Code§ 34-33-1-l(a)(13) on

the sole basis of his prior conviction for an aggravated felony, despite the fact that he has served

his sentence, his conviction was vacated and the crime was reduced to a misdemeanor offense,

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and he is therefore not deportable under federal immigration law. Facts relating to consular identification cards 79. Consular identification cards ("CIDs") are issued by governments to help identify their citizens living in foreign countries. 80. In the United States, CIDs are issued by foreign consulates located in cities across the country, including Indianapolis, and are used by foreign consulates in providing consular services. 81. CIDs also facilitate the exercise of certain legal rights of foreign nationals present in the United States. Under the Vienna Convention on Consular Relations, a foreign national arrested or detained in the United States must be advised of his or her right to request that appropriate consular officials be notified of their detention without delay. See Vienna Convention on Consular Relations art. 36, Apr. 24, 1963, [1970] 21 U.S.T. 77, T.I.A.S. No. 6820. 82. In congressional testimony, a U.S. State Department official testified that the Department views CIDs as a useful tool for law enforcement officers to help facilitate observance of the United State's treaty obligations. See Hearing on the Federal Government's Response to Consular Identification Cards Before the House Subcommittee on Immigration, Border Security, and Claims, House Committee on the Judiciary, 108th Cong. 44-45, at 144-147 (Jun. 26, 2003) (statement of Roberta Jacobson) (available at: http://commdocs.house.gov/committees/judiciary/ hju87813.000/hju87813 Of.htm (last visited May 13, 2011)) (Hereinafter "Statement of Roberta 1acobson"). 83. Cardholders can use CIDs to alert federal, state, and local law enforcement authorities of the need to notify consular officials when assistance is needed. !d. 84. Cardholders also commonly use CIDs for identification purposes with financial
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institutions, law enforcement agencies, and state and local governments in the United States. 85. The U.S. Treasury Department has adopted regulations that allow financial institutions to accept CIDs and other foreign government-issue documents. See 31 C.F.R. § 1020.220 (implementing 31 U.S.C. § 5318(1), which requires the U.S. Treasury Department to institute regulations that provide minimum standards for the identification and verification of account holders); 68 Fed. Reg. 55335, 55336 (Sep. 25, 2003) ("As issued, the final rules neither endorse nor preclude reliance on particular forms of foreign government issued identification."). 86. State Department officials have also warned that any national policy that prohibits foreign-issued CIDs could result in retaliatory policies by foreign countries and harm the United States' ability to issue similar non-passport identification documents to U.S. citizens abroad. Statement of Roberta Jacobson, supra. 87. Ingrid Buquer is a Mexican citizen who regularly uses a consular identification card, issued by the Mexican Consulate in Indianapolis, for non-fraudulent uses in both Johnson and Marion Counties. 88. Ms. Buquer regularly offers her CID when banking, shopping, and m most other situations where identification is required in Johnson and Marion Counties. 89. Ms. Buquer also has offered her CID to consular officials at the Mexican Consulate in Indianapolis as proof of her Mexican citizenship. 90. She wishes to continue to offer her CID for these purposes as this is her preferred method of identification. She is unable to obtain a drivers license or identification card from the State of Indiana. 91. Ms. Buquer will be subject to the penalties under Indiana Code § 34-28-8.2-2 when the law goes into effect on July 1, 2011 if she offers her CID to anyone.
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92. Because she will be unable to use her CID without incurring civil infractions, the card will become useless as a form of identification General facts 93. The plaintiffs are being caused irreparable harm for which there is no adequate remedy at law. 94. At all relevant times defendants have acted under color of state law.
Legal Claims 95. To the extent Indiana Code § 34-33-1-l(a)(ll) to (13) allows state and local law enforcement officers to arrest and detain the plaintiffs on the sole basis of a removal order, detainer, notice of action, or an indictment or conviction for an aggravated felony, SEA 590 violates the Fourth Amendment of the U.S. Constitution because it allows the plaintiffs to be arrested without any reasonable suspicion or probable cause of any unlawful conduct or criminal activity. 96. To the extent Indiana Code§ 34-33-1-1 allows state and local law enforcement officers to arrest and detain the plaintiffs on the sole basis of a removal order, detainer, notice of action, or an indictment or conviction for an aggravated felony, it is preempted by federal law. 97. To the extent Indiana Code § 34-28-8.2-2 prohibits the plaintiffs from offering valid CIDs to establish identification it conflicts and is preempted by federal law. 98. To the extent Indiana Code § 34-28-8.2-2 prohibits the use of CIDs, and to the extent Indiana Code§ 34-33-1-1 allows state or local law enforcement officers to arrest the plaintiffs on the sole basis of a removal order, detainer, notice of action, or an indictment or conviction for an aggravated felony, the law violates the Due Process Clause of the Fourteenth Amendment.
WHEREFORE, the plaintiffs respectfully request that this Court:
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Case 1:11-cv-00708-SEB-MJD Document 1 Filed 05/25/11 Page 18 of 20 PageID #: 18 1. Accept jurisdiction of this cause and set it for hearing. 2. Certify this case as a class action pursuant to Rule 23(b)(2) of the Federal Rules of Civil Procedure, with the classes as defined above. 3. Declare that the defendants have violated the rights of the plaintiffs for the reasons specified above. 4. Issue a preliminary injunction, later to be made permanent, enjoining the defendants from enforcing the challenged provisions of SEA 590. 5. Award the plaintiffs their costs and attorneys' fees pursuant to 42 U.S.C. § 1988. 6. Award all other proper relief.
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Case 1:11-cv-00708-SEB-MJD Document 1 Filed 05/25/11 Page 19 of 20 PageID #: 19
Jan P. Mensz No. 4908893 (NY State Bar) Gavin M. Rose No. 26565-53 ACLU oflndiana 1031 E. Washington St. Indianapolis, IN 46202 317/635-4059 fax: 317/635-4105 kfalk@aclu-in.org jmensz@aclu-in.org grose@aclu-in.org
ilgel D Adams No. 24959-49 LEWIS & KAPPES, P.C. One America Tower, Suite 2500 Indianapolis, IN 46282-0003 (317) 639-1210 fax: (317) 639-4882 aadams@lewis-kappes.com
Lee Gelemt* Omar C. Jadwat* Andre I. Segura* AMERICAN CIVIL LIBERTIES UNION FOUNDATION IMMIGRANTS' RIGHTS PROJECT 125 Broad Street, 18th Floor New York, New York 10004 Telephone: (212) 549-2660 Facsimile: (212) 549-2654 lgelemt@aclu.org ojadwat@aclu.org ascgura@aclu.org
Cecillia D. Wang*
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. Case 1:11-cv-00708-SEB-MJD Document 1 Filed 05/25/11 Page 20 of 20 PageID #: 20
Katherine Desormeau* AMERICAN CIVIL LIBERTIES UNION FOUNDATION IMMIGRANTS' RIGHTS PROJECT 39 Drumm Street San Francisco, California 94111 Telephone: (415) 343-0775 Facsimile: (415) 395-0950 cwang@aclu.org kdesormeau@aclu.org Linton Joaquin* Karen C. Tumlin* Shiu-Ming Cheer* NATIONAL IMMIGRATION LAW CENTER 3435 Wilshire Boulevard, Suite 2850 Los Angeles, California 90010 Telephone: (213) 639-3900 Facsimile: (213) 639-3911 joaquin@nilc.org tumlin@nilc.org cheer@nilc. org *Application for admission pro hac vice forthcoming Attorneys for Plaintiffs
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 Case 1:11-cv-00708-SEB-MJD Document 67 Filed 06/17/11 Page 1 of 3 PageID #: 400

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION

INGRID BUQUER, et al., Plaintiffs, v.
CITY OF INDIANAPOLIS, et al., Defendants.

)

)

Cause No. 1:11-cv-0708-SEB-MJD

)

)

)

)

)

)

)

PROTECTIVE ORDER Plaintiffs Ingrid Buquer, Berlin Ortiz, and Louisa Adair (referred to as “Plaintiffs”) and Defendants the Marion County Prosecutor in his official capacity and the Johnson County Prosecutor in his official capacity (referred to as “State Defendants”) seek an order protecting privacy interest and confidentiality of the Plaintiffs’ immigration documents that are currently in the possession of Plaintiffs’ counsel, Angela Adams. It is hereby ordered as follows: 1. The immigration records of Ingrid Buquer that are currently in the possession of Plaintiffs’ counsel, Angela Adams, are confidential in nature and should be considered as such by all parties and counsel to this matter. 2. The immigration records of Berlin Ortiz that are currently in the possession of Plaintiffs’ counsel, Angela Adams, are confidential in nature and should be considered as such by all parties and counsel to this matter. 3. The immigration records of Louisa Adair that are currently in the possession of Plaintiffs’ counsel, Angela Adams, are confidential in nature and should be considered as such by all parties and counsel to this matter.

Case 1:11-cv-00708-SEB-MJD Document 67 Filed 06/17/11 Page 2 of 3 PageID #: 401

4. The immigration records of the Plaintiffs that are currently in the possession of

Plaintiffs’ counsel, Angela Adams, shall be disclosed only to State Defendants’ counsel and

members of the office of State Defendants’ counsel.

5.

If the State Defendants determine that disclosure of the immigration records that

are currently in the possession of Plaintiffs’ counsel, Angela Adams, is warranted or necessary

pursuant to litigation in this matter, State Defendants shall contact counsel for Plaintiffs to

request to disclose the immigration records.

6. Disclosure of the immigration records that are currently in the possession of

Plaintiffs’ counsel, Angela Adams, to anyone other than the individuals listed in paragraph 4

shall be permitted upon express written permission of Plaintiffs.

7. If State Defendants determine that the immigration records that are currently in

the possession of Plaintiffs’ counsel, Angela Adams, or a portion thereof are necessary for filing

with the Court in this matter, the immigration records are to be filed under seal pursuant to the

S.D. Local Rule 5.3.

8. This protective order concerns only the immigration records of the above named

Plaintiffs that are currently in the possession of Plaintiffs’ counsel, Angela Adams, and does not

allow the State Defendants, or any other party, access to any other otherwise confidential

immigration records or other confidential records without the consent of the Plaintiffs.

9. This Order shall continue to be binding throughout and after the conclusion of this

litigation, including all appeals. Within thirty days of settlement or final adjudication, including

but not limited to final adjudication of any appeals, all immigration records produced in this

litigation shall be returned to counsel for Plaintiffs.

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Case 1:11-cv-00708-SEB-MJD Document 67 Filed 06/17/11 Page 3 of 3 PageID #: 402

XDate: 06/16/2011
Copies to: Counsel of record

_______________________________
SARAH EVANS BARKER, JUDGE United States District Court Southern District of Indiana

 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION

INGRID BUQUER, BERLIN URTIZ, and )

LOUISA ADAIR, on their own behalf and )

on behalf of those similarly situated,

)

)

Plaintiffs,

)

)

vs.

)

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CITY OF INDIANAPOLIS, et al.,

)

)

Defendants.

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1:11-cv-708-SEB-MJD

ORDER GRANTING PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION
This matter is before the Court on Plaintiffs’ Motion for Preliminary Injunction [Docket No. 14], filed on May 26, 2011, pursuant to Federal Rule of Civil Procedure 65 in the above-captioned cause. Plaintiffs seek to have enjoined without bond two provisions of the recently enacted Senate Enrolled Act 590, scheduled to go into effect on July 1, 2011. Specifically, the two portions of that law which Plaintiffs challenge are: Section 19 of SEA 590, which amends Indiana Code § 35-33-1-1(1), by adding new sections (a)(11)-(a)(13), authorizing state and local law enforcement officers to make a warrantless arrest of a person when the officer has a removal order issued for the person by an immigration court, a detainer or notice of action issued for the person by the United States Department of Homeland Security, or has probable cause to believe the person has been indicted for or convicted of one or more aggravated felonies. Plaintiffs also

challenge Section 18 of SEA 590, to be codified as Indiana Code § 34-28-8.2, which creates a new infraction under Indiana law for any person (other than a police officer) who knowingly or intentionally offers or accepts a consular identification card as a valid form of identification for any purpose.
The legislation under review here, as adopted by the Indiana General Assembly, mirrors a spate of similar laws recently enacted (and challenged in their respective courts) by the states of Alabama, Georgia, South Carolina, Utah and Arizona. Regarding each of these statutes, the ostensible underlying purpose is the same: all represent attempts by the states to offset in various ways difficulties that have arisen within their jurisdictions from the perceived failures of the federal government to deal more effectively with the broad problem of illegal immigration. In their attempts to fashion laws to advance this purpose, these states have tended to impose a variety of restrictions on immigrants – some in this country legally, some not – and on businesses who would hire them or conduct other commercial affairs with such persons located or otherwise living within their borders. Tacitly acknowledging that immigration matters are primarily committed to the federal government to regulate, the states’ enactments reflect what in some instances appear to be tortuous attempts to carve out legally permissible roles that do not run afoul of federal jurisdictional and constitutional requirements as well as the principles of federal preemption. Unfortunately, insofar as Indiana’s efforts to carve out such a permissible role, at least with regard to the two sections of the statute under review here, their results have proven to be seriously flawed and generally unsuccessful.
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Plaintiffs’ Complaint challenges the constitutionality of these two sections of SEA 590. Their accompanying Motion for Preliminary Injunction seeks to have the Court enjoin the State of Indiana from enforcing them until a final determination can be made by the Court both as to their constitutionality, arguing that the challenged sections are not only unconstitutional under the Fourth Amendment and due process provisions, and because they run afoul of federal presumption principles as attempts to regulate immigration, an exclusively federal concern. Oral arguments were heard on June 20, 2011. Having considered the parties’ briefing and oral arguments, the undisputed documentary evidence, and the controlling principles of law, the Court now GRANTS Plaintiffs’ motion for injunctive relief.
Factual Background I. Federal Immigration Regulation
In 1952, Congress enacted the Immigration and Nationality Act (“INA”), 66 Stat. 163, as amended, 8 U.S.C. § 1101 et seq. “That statute established a ‘comprehensive federal statutory scheme for regulation of immigration and naturalization’ and set ‘the terms and conditions of admission to the country and the subsequent treatment of aliens lawfully in the country.” Chamber of Commerce of U.S. v. Whiting, 131 S.Ct. 1968, 1973 (2011) (quoting De Canas v. Bica, 424 U.S. 351, 353, 359 (1976)). The INA empowers the Department of Homeland Security (“DHS”), the Department of Justice (“DOJ”), and the Department of State, among other federal agencies, to administer and enforce immigration law. Within DHS, various sub-agencies, including the United States
3

Immigration and Customs Enforcement (“ICE”), the United States Customs and Border
Protection (“CBP”), and the United States Citizenship and Immigration Services
(“USCIS”), are involved in this task.
In certain limited situations, federal law permits the delegation of authority to
enforce civil immigration law to state and local law enforcement. For example, DHS is
permitted to enter into written agreements (known as “287(g) agreements”) with states or
any political subdivision of a state to allow appropriately trained and supervised officers
or employees of the state or subdivision to perform certain immigration responsibilities.
8 U.S.C. § 1357(g)(1). It is undisputed that Indiana has no such agreement with the
federal government.
II. Section 19
Section 19 of the Act amends Indiana Code § 35-33-1-1(1), by adding new
sections (a)(11)-(a)(13), which provide as follows:
(a) A law enforcement officer may arrest a person when the officer has: ***
(11) a removal order issued for the person by an immigration court;
(12) a detainer or notice of action for the person issued by the United States Department of Homeland Security; or
(13) probable cause to believe that the person has been indicted for or convicted of one (1) or more aggravated felonies (as defined in 8 U.S.C. 1101(a)(43)).
An understanding of the material phrases incorporated in this statute is necessary; that
discussion ensues:
4

A. Removal Order The INA contains provisions which, inter alia, set forth the conditions under which a foreign national may be admitted to and remain in the United States, establish civil penalties and criminal sanctions for immigration violations, and grant DHS the discretion to place non-citizens into removal proceedings for various actions. See, e.g., 8 U.S.C. §§ 1181-1182, 1184, 1225, 1227-1229, 1306, 1324-25. Unlawful presence in the United States on its own is not a federal crime, although it can lead to the civil remedy of removal. 8 U.S.C. §§ 1182(a)(6)(A)(I), 1227(a)(1)(B), (C). Removal proceedings take place within an administrative immigration court system within the DOJ. 8 C.F.R. § 1003.0, et seq. If the Attorney General of the United States issues a warrant after removal proceedings have been initiated against an individual under federal law, that person may be arrested and detained pending a final removal decision. 8 U.S.C. § 1226(a). However, removal does not occur in every case. After removal proceedings are initiated, the noncitizen may still be released during the pendency of removal proceedings, or even after the removal order has been issued by an immigration judge. Under 8 U.S.C. § 1226(a), the individual may be released on bond or conditional parole, or, in some cases, be provided with work authorization. Id. § 1226(a)(3). After a removal order is issued by an immigration judge, the non-citizen has the right to seek reconsideration as well as administrative and judicial review of that determination and may be released on bond until a final determination is made. 8 U.S.C. § 1229a(c)(5). Even after issuance of a final
5

removal order, the individual may, in some circumstances, move to reopen the removal proceedings, which may stay his/her removal pending final disposition of the motion. Id. § 1229a(c)(7). If the Attorney General fails to remove the non-citizen within ninety days after the removal order becomes final, the individual is released from detention, subject to supervision by the Attorney General. 8 U.S.C. § 1231(a)(3). Finally, in lieu of deportation, the Attorney General may allow an alien to voluntarily depart the United States during a predetermined period of time. 8 U.S.C. § 1229c.
B. Detainer If federal or local law enforcement informs ICE that an alien is in custody on nonimmigration related charges, ICE may issue a detainer requesting that the law enforcement agency hold the individual for up to 48 hours (not including weekend days and holidays) beyond the time that the detainee would otherwise be released in order to allow ICE to assume custody, if it chooses to do so. 8 C.F.R. § 287.7(d). A detainer is not a criminal warrant, but rather a voluntary request that the law enforcement agency “advise [DHS], prior to release of the alien, in order for [DHS] to arrange to assume custody.” Id. § 287.7(a). The detainer automatically expires at the end of the 48-hour period. Id. C. Notice of Action The standard form that federal immigration authorities utilize to inform individuals with pending petitions of any sort before the agency of the status of their cases is known as the Notice of Action Form, Form I-797. This form may be used to notify a person of a
6

wide variety of administrative actions, including that a petition or application with the agency has been received, that a decision has been made on a petition or application, and may even be used to notify an individual that he or she has been granted lawful status. Because an I-797 form is essentially simply a communication between the agency and the petitioner issued for a wide range of administrative reasons, receipt of a notice of action is not a reliable indicator of an individual’s immigration status, or whether an individual has engaged in illegal activity, or the circumstances surrounding the individual’s presence in the United States.
D. Aggravated Felonies The INA provides that an alien convicted of an “aggravated felony” is subject to removal and may not receive asylum in the United States, become a citizen, lawfully reenter the United States, or have removal orders cancelled by the Attorney General. 8 U.S.C. §§ 1158(b)(2)(A)(ii), (b)(2)(B)(I); 1227 (a)(2)(A)(iii); 1229b(a)(3). However, it is often unclear whether a particular crime constitutes an aggravated felony under federal immigration law. “Aggravated felony” is defined under 8 U.S.C. § 1101(a)(43), which encompasses 21 subsections, many of which themselves contain multiple crimes. Thus, determining whether a particular crime meets the definition is a complex analytical undertaking, one with which many courts routinely grapple as have Executive Branch agencies and departments charged with enforcing this law. III. Section 18 Section 18 of the Act, to be codified as Indiana Code § 34-28-8.2, provides:
7

Chapter 8.2. Offenses Related to Consular Identification
Sec. 1. As used in this chapter, “consular identification” means an identification, other than a passport, issued by the government of a foreign state for the purpose of providing consular services in the United States to a national of the foreign state.
Sec. 2. (a) This section does not apply to a law enforcement officer who is presented with a consular identification during the investigation of a crime.
(b) Except as otherwise provided under federal law, a person who knowingly or intentionally offers, accepts, or records a consular identification as a valid form of identification for any purpose commits a Class C infraction. However, the person commits:
(1) a Class B infraction for a second offense; and (2) a Class A infraction for a third or subsequent offense.
Consular Identification Documents (“CIDs”):
The Vienna Convention on Consular Relations (“VCCR”), to which the United
States is a signatory, provides, inter alia, that a foreign consulate may issue travel
documents, visas, or other appropriate documents to protect and assist its citizens in the
foreign country. Vienna Convention on Consular Relations and Optional Protocol on
Disputes, Art. 5(a), (d), (e), T.I.A.S. No. 6820, 21 U.S.T. 77, 1969 WL 97928 (Dec. 14,
1969). Consular identification documents (“CIDs”) are photo identification cards issued
by many embassies and consulates, including the United States, “to encourage their
citizens abroad to register with the consulates so that they can receive standard consular
services, be notified if necessary, and be located upon inquiry by relatives and
authorities.” Congressional Research Service, Consular Identification Cards: Domestic
and Foreign Policy Implications, the Mexican Case, and Related Legislation at CRS-1
8

(2005), available at http://www.fas.org/sgp/crs/misc/RL32094.pdf. The Court has been informed that the issuance of these identification documents is a matter which the respective foreign governments closely supervise and tightly manage.
Under the VCCR, a foreign national arrested or detained in the United States must be advised of his or her right to request that appropriate consular officials be timely notified of the individual’s detention. Thus, individuals can use CIDs to alert federal, state, and local law enforcement authorities of the need to notify consular officials when assistance is required. Cardholders also commonly use CIDs for identification purposes, such as with financial institutions, law enforcement agencies, and state and local governments in the United States, as well as for other transactions that require photo identification, including cashing checks, renting housing, or enrolling children in school, especially when no other forms of photo identification are available to them for their use.
The parties stipulate that limitations or restrictions on the use of these documents in connection with official state matters is a permissible exercise of state governmental authority. As for the non-state governmental uses, however, the parties here disagree as to their lawfulness. IV. Background on the Named Plaintiffs
Ingrid Buquer is a Mexican citizen who resides in Johnson County (Indiana) and also spends a significant amount of time in Marion County. She has applied for a U-Visa as a victim of, or a witness to, a violent crime, which, if granted, will allow her to remain in the United States. See 8 U.S.C. § 1101(a)(15)(U). She has received an I-797 Notice of
9

Action to inform her of the pendency of her U-Visa application. Ms. Buquer has also received a CID from the Mexican Consulate in Indianapolis, which she uses in both Johnson and Marion Counties for many purposes, such as banking and shopping as well as in other situations in which identification is required. She has at times presented her CID when receiving services at the Mexican Consulate as proof of her Mexican citizenship. Ms. Buquer testified by affidavit that she is unable to obtain an identification card or license from the State of Indiana. Buquer Aff. ¶ 8. Plaintiffs contend that, because Ms. Buquer has received a Notice of Action, she will be subject to warrantless arrest pursuant to Section 19 when and if the law goes into effect on July 1, 2011. Additionally, under Section 18, effective July 1, 2011, she will not be able to use her CID for identification without being subject to a civil infraction.
Louisa Adair is a citizen of Nigeria who currently resides in Marion County. Ms. Adair had a removal order issued against her in 1996, but she is currently released by ICE on an Order of Supervision, under which she reports to ICE every six months. She has been issued a valid work authorization document from DHS and she receives a I-797 Notice of Action each time she applies to renew her employment authorization card. Ms. Adair has filed a Motion to Reopen and Terminate Removal Proceedings and has also made a formal request that the ICE Chief Counsel’s office exercise its prosecutorial discretion and join in her in that motion. If her request is granted, she will be eligible to apply for lawful permanent residency because her mother is a citizen of the United States and Ms. Adair possesses an approved and current I-130 visa petition. Ms. Adair also
10

received an I-797 Notice of Action approving the I-130 petition that establishes her relationship to her citizen-mother. Plaintiffs contend that, because Ms. Adair has received both a removal order and various Notice of Action forms, she will be subject to warrantless arrest by Indiana law enforcement officers when and if Section 19 goes into effect on July 1, 2011.
Berlin Urtiz is a citizen of Mexico who currently resides in Marion County. He has been a lawful permanent resident of the United States since 2001. In 2004, Mr. Urtiz was convicted of theft in Johnson County and sentenced to two years in prison, which was subsequently suspended to probation. This crime was initially determined to be an aggravated felony under 8 U.S.C. § 1101(a)(43), and, in 2010, he was taken into custody by ICE and detained for four months pending removal. However, in September 2010, he was granted post-conviction relief. His theft conviction was vacated in November 2010 and he was re-sentenced for the misdemeanor offense of conversion, which does not qualify as an aggravated felony. Currently, there are no removal proceedings pending against Mr. Urtiz and he remains a lawful permanent resident, but Plaintiffs contend that, inasmuch as he has been convicted of an aggravated felony in the past, he will be subject to warrantless arrest by Indiana law enforcement officers on this basis when and if Section 19 goes into effect on July 1, 2011.
Legal Analysis I. Standard of Review
The grant of injunctive relief is appropriate if the moving party is able to 11

demonstrate: (1) a reasonable likelihood of succeeding on the merits; (2) irreparable harm if preliminary relief is denied; and (3) an inadequate remedy at law. Girl Scouts of Manitou Council, Inc. v. Girl Scouts of the United States of America, Inc., 549 F.3d 1079, 1086 (7th Cir. 2008). If the moving party fails to demonstrate any one of these three threshold requirements, the emergency relief must be denied. Id. However, if these threshold conditions are met, the Court must then assess the balance of harm – the harm to Plaintiffs if the injunction is not issued against the harm to Defendant if it is issued – and, where appropriate, also determine what effect the granting or denying of the injunction would have on nonparties (the public interest). Id.
In determining whether to grant injunctive relief, the district court must take into account all four of these factors and then “exercise its discretion ‘to arrive at a decision based on the subjective evaluation of the import of the various factors and a personal, intuitive sense about the nature of the case.” Id. (quoting Lawson Products, Inc. v. Avnet, Inc., 782 F.2d 1429, 1436 (7th Cir. 1986)). This process involves engaging in what is called the “sliding scale” approach, meaning that “the more likely it is the plaintiff will succeed on the merits, the less balance of irreparable harms need weigh toward its side; the less likely it is the plaintiff will succeed, the more the balance need weigh towards its side.” Abbott Laboratories v. Mead Johnson & Co., 971 F.2d 6, 12 (7th Cir. 1992) (citations omitted). The sliding scale approach “is not mathematical in nature, rather ‘it is more properly characterized as subjective and intuitive, one which permits district courts to weigh the competing considerations and mold appropriate relief.’” Ty, Inc. v. Jones
12

Group, Inc., 237 F.3d 891, 895-96 (7th Cir. 2001) (quoting Abbott Laboratories, 971 F.2d at 12). II. Likelihood of Success on the Merits
A. Section 19 1. Standing
Defendants initially contend that all three named Plaintiffs lack standing to sue, having failed to show that they are under threat of suffering any injury because they have failed to establish with certainty that they will be subject to arrest under Section 19 when and if it becomes effective. To have standing to seek injunctive relief, “a plaintiff must show that he is under threat of suffering ‘injury in fact’ that is concrete and particularized; the threat must be actual and imminent, not conjectural or hypothetical; it must be fairly traceable to the challenged action of the defendant; and it must be likely that a favorable judicial decision will prevent or redress the injury.” Summers v. Earth Island Institute, 555 U.S. 488, 129 S.Ct. 1142, 1149 (2009) (citing Friends of Earth, Inc. v. Laidlaw Environmental Servs. (TOC), Inc., 528 U.S. 167, 180-81 (2000)).
Mr. Urtiz: Defendants argue that Mr. Urtiz lacks standing to challenge the constitutionality of Section 19 because he has neither been indicted for nor convicted of an aggravated felony as Plaintiffs allege.1 Specifically, Defendants contend that, because
1 As laid out above, pursuant to Indiana Code § 35-33-1(a)(13), a law enforcement officer may arrest a person when the officer has “probable cause to believe that the person has been indicted for or convicted of one (1) or more aggravated felonies (as defined in 8 U.S.C. §
(continued...) 13

all but two days of Mr. Urtiz’s court-ordered two-year sentence in the Indiana Department of Correction was suspended to probation, he fails to meet the one-year minimum term of imprisonment required for a theft offense to constitute an aggravated felony under 8 U.S.C. § 1101(a)(43). However, the applicable federal statute defines “term of imprisonment” to include “the period of incarceration or confinement ordered by a court of law regardless of any suspension of the imposition or execution of that imprisonment or sentence in whole or in part.” 8 U.S.C. § 1101(48)(B) (emphasis added). This definition applies regardless of whether the conviction was entered before, on, or after September 30, 1996, the effective date of the INA. 8 U.S.C. § 1101(a)(43). Thus, Mr. Urtiz’s two-year sentence exceeds the one-year threshold required for a theft conviction to constitute an aggravated felony, notwithstanding the fact that nearly the entire sentence was suspended to probation.
Defendants also argue that Mr. Urtiz does not fall within the terms of Section 19’s proscriptions for the additional reason that his conviction for an aggravated felony was subsequently vacated and reduced to a misdemeanor. However, Section 19 specifically authorizes the arrest of anyone for whom an officer has probable cause to believe “has been ... convicted of one (1) or more aggravated felonies.” IND. CODE § 35-33-1-1(a)(13) (emphasis added). As Plaintiffs note, the use of the past participle in the statute implies that this provision applies as long as the individual was convicted at any time in the past.
1(...continued) 1101(a)(43)).”
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Section 19 makes no distinctions as to convictions that are later overturned or expunged. Clearly, whenever the Indiana General Assembly has sought to have the term “conviction” exclude convictions that have been reversed or vacated, it has made that intention clear. See, e.g., IND. CODE 3-8-1-5(b) (convictions that have been reversed, vacated, or set aside do not qualify for statute disqualifying a person convicted of a felony from assuming or being a candidate for elected office). For these reasons, we find that Mr. Urtiz will be subject to arrest under § 35-33-1-1(a)(13) when and if Section 19 becomes effective.
Ms. Adair and Ms. Buquer: Ms. Adair has received a removal order from immigration. Defendants argue that Ms. Adair nonetheless lacks standing to challenge Indiana Code § 35-33-1-1(a)(11), which allows an officer to arrest an individual for whom a removal order has been issued by an immigration court, because her removal order was subsequently “superseded” by an Order of Supervision. Defendants’ characterization is in error, however, because, rather than superseding a removal order, an order of supervision is issued “pending removal” and merely imposes conditions on an individual’s release in cases where the person neither leaves nor is removed within the statutory period. See 8 U.S.C. § 1231(a)(3). Thus, although Ms. Adair has received an order of supervision, there is no evidence that her removal order is no longer current and in-force. Accordingly, she meets the definition of individuals who are subject to arrest under § 35-33-1-1(a)(11), since she has “a removal order issued for [her] by an immigration court.”
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Defendants argue that neither Ms. Adair nor Ms. Buquer has standing to challenge Indiana Code § 35-33-1-1(a)(12) because the notices of action that they each received are “benign” and further, the Court must assume that Section 19 would only be enforced against those with “non-benign” notices of action.2 However, § 35-33-1-1(a)(12) permits the arrest of any person who has a “notice of action ... issued by the United States Department of Homeland Security,” making no distinction between benign and nonbenign notices nor does the statute (or Defendants for that matter) indicate what constitutes a non-benign notice of action. It is undisputed that both Ms. Adair and Ms. Buquer possess notices of action issued by DHS and nothing in the plain language of the statute excludes their notices of action from inclusion within the terms of Section 19. Thus, we find that both Ms. Adair and Ms. Buquer will be subject to arrest when and if Section 19 becomes effective on July 1, 2011 sufficient to satisfy the requirements of standing.
It is true that none of the Plaintiffs has yet suffered a direct injury based on Section 19 because, obviously, the statute is not yet in effect. However, it is well established that “the existence of a statute implies a threat to prosecute [and thus] pre-enforcement challenges are proper, because a probability of future injury counts as ‘injury’ for the purpose of standing.” Bauer v. Shepard, 620 F.3d 704, 708 (7th Cir. 2010) (citations omitted). Interestingly, Defendants have argued that the authorizations given police
2 The terms “benign” and “non-benign” do not appear in the statute; their use here reflects the adversarial effort by defense counsel to salvage their standing arguments.
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officers to effect arrests of persons under these provisions may never be enforced, suggesting that Plaintiffs are thus not at risk or otherwise injured until such time as they are actually arrested. We reasonably assume that the Indiana General Assembly intended this law to be enforced in accordance with its authorizations when it was enacted. Accordingly, because Plaintiffs have established that they fall within the definition of those individuals who will be subject to arrest if and when Section 19 becomes effective on July 1, 2011, their standing to bring this action seeking injunctive relief has been established.
2. Ripeness In related fashion, Defendants maintain that Plaintiffs’ challenge to Section 19 is not ripe for adjudication. Defendants argue that Plaintiffs are unable to point to a specific threat of the application of the Act, and, because the nature and scope of its application have not yet been developed, any determination by the Court regarding its constitutionality would be premature. To determine whether a case is ripe for adjudication, a court must determine “first, whether the relevant issues are sufficiently focused so as to permit judicial resolution without further factual development; and second, whether the parties would suffer any hardship by the postponement of judicial action.” Triple G Landfills, Inc. v. Bd. of Comm’rs of Fountain County, Ind., 977 F.2d 287, 289 (7th Cir. 1992) (citations omitted). The first factor is generally met where “[t]he issues posed are purely legal ... and would not be clarified by administrative proceedings or any other type of factual development.”
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Id. The parties here agree that, at least at the preliminary injunction stage, the Fourth Amendment and preemption issues presented to the Court are purely legal rather than factual issues. Accordingly, this first factor is met.
Plaintiffs argue that the second factor is also met because, absent judicial action, they face the threat of arrest when and if Section 19 becomes effective on July 1, 2011. Defendants rejoin that, because the scope and application of Section 19 has not yet been developed, Plaintiffs’ assertion that they will be subject to arrest is nothing more than speculation based on the assumption that a non-party (a state or local law enforcement officer) will perform a wholly discretionary act, to wit, the arrest of one of the Plaintiffs, based solely on the authority granted by Section 19.
Courts have long upheld pre-enforcement challenges to various civil and criminal statutes despite the fact that the discretionary authority of government officials is present in virtually all such statutes, and it is well-established that a plaintiff need not be required to undergo arrest and prosecution before being able to challenge the constitutionality of a statute. See, e.g., Babbit v. UFW Nat’l Union, 442 U.S. 289, 298 (1979) (“[O]ne does not have to await the consummation of a threatened injury to obtain preventive relief.”) (citation and quotation omitted); Steffel v. Thompson, 415 U.S. 452, 459 (1974) (“[I]t is not necessary that petitioner first expose himself to actual arrest or prosecution to be entitled to challenge a statute that he claims deters the exercise of his constitutional rights.”); Commodity Trend Serv., Inc. v. Commodity Futures Trading Comm’n, 149 F.3d 679, 687 (7th Cir. 1998) (“It is not necessary ... that a plaintiff expose itself to actual
18

arrest or prosecution.”). As long as there is a credible threat of enforcement, the second prong of the
ripeness doctrine is satisfied. Such a threat is credible “when a plaintiff’s intended conduct runs afoul of a criminal statute and the Government fails to indicate affirmatively that it will not enforce the statute.” Commodity Trend Serv., 149 F.3d at 687 (citing Virginia v. American Booksellers Ass’n, Inc., 484 U.S. 383, 393 (1988) (emphasis in original)). Here, for the reasons deemed applicable to resolving the standing issue, Plaintiffs have shown that they fall within the ambit of those who will be subject to arrest under Section 19. Moreover, neither party has pointed to evidence to establish, nor is there anything in the statute or legislative history to suggest, that Section 19 will not be enforced as written.
This case is distinguishable from the circumstances presented in Indiana Right to Life, Inc. v. Shepard, 507 F.3d 545 (7th Cir. 2007), where the Seventh Circuit held that the issues presented were not ripe for adjudication because there was no evidence of a real threat of enforcement of the challenged provisions. In that case, the plaintiffs were able to point to evidence that the provisions at issue had never been enforced in the ten years of their existence. No similar evidence has been presented here to show that Section 19, having now been enacted, will not be enforced. Given the concerns and purposes underlying this statute and informing the decision of the Indiana General Assembly to enact this law and in light of the heightened political rhetoric accompanying public debates on issues of immigration policy across Indiana and elsewhere, it is
19

reasonable to assume that, armed with these new and expanded powers, state law enforcement officials will undertake to enforce them. Accordingly, we find that Plaintiffs have alleged an actual and credible fear that Section 19 will be enforced against them, should the statute become effective on July 1, 2011. For these reasons, we hold that Plaintiffs’ challenge is ripe for adjudication.
3. Fourth Amendment and Due Process Issues Section 19 authorizes state and local law enforcement officers to effect warrantless arrests for matters that are not crimes. Defendants concede that nothing under Indiana law makes criminal the receipt of a removal order, a notice of action or detainer, or a person’s having been indicted for or convicted of an aggravated felony. Defs.’ Resp. at 12. Defendants also concede that arrests based solely on Section 19 “could potentially be in violation of the Fourth Amendment.” Id. at 3. Nevertheless, Defendants argue that, because Plaintiffs have raised a facial challenge to the statute, the Court must presume that government officials will apply Section 19 in a constitutional manner. “[A]n arrest is reasonable under the Fourth Amendment so long as there is probable cause to believe that some criminal offense has been or is being committed.” Fox v. Hayes, 600 F.3d 819, 837 (7th Cir. 2010) (emphasis in original) (citations omitted). It is true that, “‘[i]n evaluating a facial challenge to a state law, a federal court must ... consider any limiting construction that a state court or enforcement agency has proffered.’” Ward v. Rock Against Racism, 491 U.S. 781, 795-96 (1989) (quoting Hoffman Estates v. The Flipside, Hoffman Estates, Inc., 455 U.S. 489, 494 n.5 (1982)).
20

However, “a federal court may not slice and dice a state law to ‘save’ it; we must apply the Constitution to the law the state enacted and not attribute to the state a law we could have written to avoid the problem.” K-S Pharmacies, Inc. v. American Home Products, Corp., 962 F.2d 728, 730 (7th Cir. 1992) (citations omitted). Here, Defendants maintain that the Court is obligated to presume that the arrest provisions set forth in Section 19 would be applied constitutionally, that is, in accordance with the Fourth Amendment and due process requirements, and thus that these expanded arrest powers would be utilized only in conjunction with an otherwise lawful arrest.
We find this interpretation entirely fanciful, however, given that it completely ignores the plain language of the statute. Section 19 expressly provides that state and local enforcement officers “may arrest” individuals for conduct that all parties stipulate and agree is not criminal. The statute contains no reference to Fourth Amendment protections nor does it include a requirement that the arrest powers granted to law enforcement officers under Section 19 be used only in circumstances in which the officer has a separate, lawful reason for the arrest. Moreover, accepting Defendants’ proposed construction would, in effect, read the statute out of existence. Apart from the exclusion of Fourth Amendment requirements regarding probable cause to arrest, Section 19 bestows no authority on law enforcement officers beyond the power to arrest for the noncriminal conduct enumerated therein, leaving a deafening silence as to what happens to the arrestee post his arrest. There is no mention of any requirement that the arrested person be brought forthwith before a judge for consideration of detention or release.
21

There is in fact a complete void within the new statute regarding all other due process
protections. Our acceptance of Defendants’ theory, based on their seemingly desperate
effort to save it, would be to require the Court to construe it contrary to its plain language,
which clearly authorizes law enforcement officials to arrest an individual without regard
to whether that individual was already subject to a lawful arrest. Such an interpretation,
apart from being based on nothing within the text of the statute itself, would render
Section 19 completely meaningless. We cannot and shall not interpret a statute in such an
unprincipled fashion. United States v. Berkos, 543 F.3d 392, 396 (7th Cir. 2008).
In short, if the Court were to accept Defendants’ proposed construction of the
arrest powers provision, it would entail a radical rewriting of Section 19, which the Court
is not empowered to do. Even if such broad interpretive powers were possible, the
construction Defendants have proposed would be entirely untenable because, as we have
noted above, it would render the challenged statute meaningless. Accordingly, we find
that Plaintiffs have established that they are likely to succeed on the merits of their claim
that Section 19 is susceptible to only one interpretation, to wit, that it authorizes the
warrantless arrest of persons for matters and conduct that are not crimes. Because such power contravenes the Fourth Amendment, Section 19 would be unconstitutional.3
3 Defendants make a passing argument that it is as yet undetermined whether the Fourth Amendment even applies to undocumented aliens. However, we read the caselaw to say otherwise. Following the Supreme Court’s decision in Immigration and Naturalization Service v. Lopez-Menoza, 468 U.S. 1032 (1984), in which the Court accepted the principle that the Fourth Amendment does apply to undocumented individuals, courts, including the Seventh Circuit, routinely apply the Fourth Amendment in cases involving undocumented aliens. See,
(continued...) 22

4. Preemption Plaintiffs are also likely to succeed in establishing that Section 19 is preempted by federal law. By virtue of the Supremacy Clause, it is “[a] fundamental principle of the Constitution ... that Congress has the power to preempt state law.” Crosby v. Nat’l Foreign Trade Council, 530 U.S. 363, 372 (2000) (citations omitted). Preemption, express or implied, “is compelled whether Congress’ command is explicitly stated in the statute’s language or implicitly contained in its structure and purpose.” Jones v. Rath Packing Co., 430 U.S. 519, 525 (1977) (citations omitted). In cases in which Congress has not explicitly provided for preemption in a given statute, state law must still yield in two circumstances. First, “[w]hen Congress intends federal law to ‘occupy the field,’ state law in that area is preempted.” Crosby, 530 U.S. at 372. Even if Congress has not occupied the field, state law is preempted as well where it conflicts with federal law. Conflicts arise when “compliance with both federal and state regulations is a physical impossibility or when state law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.” Fid. Fed. Sav. & Loan Ass’n v. de la Cuesta, 458 U.S. 141, 153 (1982) (internal quotations and citations omitted). To determine whether “obstacle” preemption exists, a court must employ its “judgment, to be informed by examining the federal statute as a whole and identifying its purpose and
3(...continued) e.g., United States v. Quintana, 623 F.3d 1237, 1239 (8th Cir. 2010); United States v. Villegas, 495 F.3d 761 (7th Cir. 2007).
23

intended effects.” Crosby, 530 U.S. at 373. Defendants argue that Section 19 is not preempted because it does not constitute a
regulation of immigration or a usurpation of federal authority, but merely “provides guidance to law enforcement officers as to when they ‘may’ arrest,” giving “Indiana officers the discretion to assist federal enforcement of immigration laws.” Defs.’ Resp. at 15. However, Defendants have failed to point to any authority allowing states to sua sponte assist the federal government in enforcing immigration laws nor is there evidence that Indiana has entered into a 287(g) agreement with the federal government that might allow it to render such assistance. Moreover, the guidance the statute provides authorizes state and local law enforcement to arrest in circumstances far broader than those in which Congress has allowed state and local officers to arrest immigrants, (8 U.S.C. § 1252c),4 and, in fact, authorizes a much broader warrantless arrest power than even federal officers
4 Pursuant to 8 U.S.C. § 1252c, state and local officers are given the authority, “to the extent permitted by relevant State and local law,” to arrest and detain an individual who:
(1) is an alien illegally present in the United States; and (2) has previously been convicted of a felony in the United States and deported or left the United States after such conviction, but only after the State or local law enforcement officials obtain appropriate confirmation from the Immigration and Naturalization Service of the status of such individual and only for such period of time as may be required for the Service to take the individual into Federal custody for purposes of deporting or removing the alien from the United States.
24

are given under federal law. 8 U.S.C. § 1357(a)(2).5 We are not aware of nor has either
party pointed to an INA provision indicating that Congress intended state and local law
enforcement officers to retain greater authority to effectuate a warrantless arrest than
federal immigration officials.
It is true that state laws addressing legitimate local interests that only indirectly
touch on immigration matters are not preempted. See DeCanas, 424 U.S. at 355-57
(superseded by statute on other grounds). Here, however, Defendants have failed to
identify a specific state or local interest that is addressed by allowing the warrantless
arrest (without any instructions as to what is to happen with the arrestee thereafter) of any
individual who has received a detainer order, a notice of action, or a removal order from
the federal government or who has ever been indicted for or convicted of an aggravated
felony, none of which necessarily indicates that the individual is subject to federal
detention. Far from having an indirect impact on immigration, it is reasonable to predict
that many such arrests authorized under Section 19 will be in direct contravention of “the
carefully calibrated scheme of immigration enforcement that Congress has adopted.”
5 Under 8 U.S.C. § 1357(a)(2), federal officers are authorized to arrest without a warrant any alien:
who in his presence or view is entering or attempting to enter the United States in violation of any law or regulation made in pursuance of law regulating the admission, exclusion, expulsion, or removal of aliens, or to arrest any alien in the United States, if he has reason to believe that the alien so arrested is in the United States in violation of any such law or regulation and is likely to escape before a warrant can be obtained for his arrest, but the alien arrested shall be taken without unnecessary delay for examination before an officer of the Service having authority to examine aliens as to their right to enter or remain in the United States.
25

United States v. Arizona, ___ F.3d ___, 2011 WL 1346945, at *17 (9th Cir. Apr. 11, 2011).
For example, Section 19 authorizes arrest for any individual in receipt of a removal order. However, having a prior removal order is not proof that the person is subject to detention by federal authorities. In Ms. Adair’s situation, although she has a removal order issued by the federal government, with the permission of federal authorities she has been permitted to remain free from custody and to obtain work authorization. In such circumstances where the federal government has exercised its discretion to release an individual like Ms. Adair, who has had a removal order issued, the subsequent arrest of that person by Indiana law enforcement officers directly conflicts with the federal decision, obviously and seriously interfering with the federal government’s authority in the field of immigration enforcement.
The conflict is even more apparent with regard to Section 19’s authorization for arrest of individuals who have been issued a notice of action. Notices of action are inherently non-criminal and receipt of such a form generally merely acknowledges that the individual’s information dealing with immigration matters has been received by INS or that an immigration decision has been made. Such communications could be as innocuous as informing the recipient that a visa application has been received and is being processed or even that he or she has attained lawful alien status. Although Defendants argue that it should be presumed that state and local law enforcement officers would utilize their arrest powers only in cases where the notice of action received is
26

“substantive” or “non-benign,” no such limitation appears in Section 19 nor are those terms defined, leaving to anyone’s guess what would constitute a “non-benign” or “substantive” notice of action or how any Indiana law enforcement officer could be expected to know the basis for such a distinction. Clearly, it is not the intent or purpose of federal immigration policy to arrest individuals merely because they have at some point had contact with an administrative agency about an immigration matter and received notice to that effect. Authorizing an arrest for nothing more than the receipt of an administrative notification plainly interferes with the federal government’s purpose of keeping those involved in immigration matters apprised of the status of their cases, but not arresting them.
Federal law specifies that the immigration penalties associated with aggravated felonies arise only if the individual has been convicted of the offense. 8 U.S.C. § 1101(a)(43). Yet Section 19 allows state and local law enforcement to arrest those who they have probable cause to believe have merely been indicted for such an offense. Considering that the determination of whether a crime constitutes an aggravated felony is often such a complex and confusing undertaking, and that there is no guidance in Section 19 as to how a state or local officer should make that determination, the power to arrest on that basis threatens serious abuses. Regardless, authorizing the arrest of individuals who have been indicted but not yet convicted of an aggravated felony runs counter to the federal intent to limit such penalties. Even in cases where there has been a conviction covered under Section 19, if the federal government fully resolves the issue of the alien’s
27

conviction and determines that no penalty will be imposed, a subsequent arrest by state authorities directly conflicts with the federal determination. That is the harm posed Mr. Urtiz.
Federal immigration law consists of a myriad of provisions together creating a balance between competing regulatory and policy objectives. In order to maintain that balance throughout the country, federal law vests discretion at the federal level regarding whether and which persons without full, lawful alien status should be arrested. However, Section 19 alters that balance by authorizing the arrest for immigration matters of individuals within the State of Indiana only whom, in many cases, the federal government does not intend to be detained. As such, Section 19 interferes with federal discretion relating to priorities for immigration enforcement and the best methods for carrying out those enforcement responsibilities. For these reasons, we find that Plaintiffs have established a likelihood of ultimately prevailing on the merits of their claim that Section 19 is preempted by federal law.
B. Section 18 1. Standing
Defendants contend that Ms. Buquer does not have standing to challenge the constitutionality of Section 18 because there is no evidence that she is unable to obtain a valid identification card from the State of Indiana or that, in fact, she has even attempted to do so, thereby failing to establish that she will be subject to Indiana Code § 34-28-8.2. However, Ms. Buquer testified by affidavit that she is unable to obtain an identification
28

card or a driver’s license from the State of Indiana because she does not possess any of the requisite documents for doing so. Buquer Aff. ¶ 8; Buquer Supp. Aff. ¶ 2. Thus, Ms. Buquer has presented sufficient evidence to show that she will be subject to Section 18, if and when it goes into effect on July 1, 2011, which is sufficient to confer standing on her claim.
2. Preemption Plaintiffs argue that Section 18 interferes with rights bestowed on foreign nations by treaty as well as with the federal government’s responsibilities for the conduct of foreign relations, and is thus preempted. Defendants rejoin that the statute does not directly conflict with any treaty nor does it impede the federal government’s ability to manage foreign affairs, because Section 18 is merely an internal regulation outlining acceptable forms of identification within the State of Indiana that does not single out or conflict with any identifiable immigration policy or regulation. Issuing CIDs is one of the prerogatives of a foreign government that is protected by the Vienna Convention of Consular Relations (“VCCR”), to which the United States is a signatory. Defendants maintain that Section 18 does not conflict with the VCCR because it does not prevent a consulate from issuing a CID or from accepting a CID at the consulate itself. It is true that Section 18 does not prohibit a foreign government from issuing CIDs to its citizens, and thus does not directly conflict with the VCCR. However, while Section 18 does not prohibit a consulate from issuing CIDs, it in essence makes their issuance meaningless as it prohibits almost every use for which the documents are
29

ordinarily issued, including for identification purposes in private commercial transactions that are conducted between private parties. In light of this drastic limitation imposed by Section 18, we are unable to dismiss the statute’s impact as inconsequential. Rather, it appears that the statute directly interferes with rights bestowed on foreign nations by treaty.
It is also clear that such a sweeping prohibition has the potential to directly interfere with executive discretion in the foreign affairs field. The executive branch’s authority over matters of foreign affairs is an implied constitutional power. Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 610 (1952). “The exercise of the federal executive authority means that state law must give way where ... there is evidence of clear conflict between the policies adopted by the two.” American Ins. Ass’n v. Garamendi, 539 U.S. 396, 421 (2003). The State Department has in the past cautioned the federal government against taking action against CIDs that might cause other countries to similarly restrict the use and acceptance of such documentation for American citizens abroad.6 See Testimony of Acting Deputy Assistant Secretary of State Roberta Jackson for the Bureau of Western Hemisphere Affairs, Hearing on the Federal Government’s Response to Consular Identification Cards Before the House Subcommittee on Immigration, Border Security, and Claims, House Committee on the Judiciary, 108th
6 The risk that a state law could result in similar retaliatory actions by foreign governments is no less a concern. The potential impact that Section 18 has on the United States’ relationship and dealings with foreign countries is reflected in the concerns raised by Mexico, Brazil, Guatemala, El Slavador, and Colombia in their amicus curiae briefs filed in this action.
30

Cong. 44-45, at 114 (Jun. 26, 2003). Additionally, the United States Treasury Department has adopted regulations
which, though not requiring financial institutions to accept CIDs and other foreign government-issued documents for identification purposes, allow such entities to do so, and has specifically declined to prohibit financial institutions from relying on particular forms of foreign government-issued identification. See 31 C.F.R. § 1020.220; 68 Fed. Reg. 55335, 55336 (Sept. 25, 2006). Thus, while these regulations may not create a direct conflict with Section 18, they are further evidence of the federal government’s overarching and legitimate interest in proceeding with caution with regard to regulating the use of CIDs. The State of Indiana’s decision to enact a statute which makes it a civil infraction for anyone to use CIDs as valid identification for any purpose is incompatible with the federal government’s supremacy as well as its deliberately measured approach.
Defendants cite to cases in which courts have found state laws not preempted which deal with matters of traditional state regulation and had only an indirect impact on foreign policy. See Dunbar v. Seger-Thomschitz, 615 F.3d 574 (5th Cir. 2010) cert. denied, 131 S.Ct. 1511 (2011) (holding that Louisiana prescription period applying generally to any challenge of ownership to movable property was not preempted even though the object of the litigation was Nazi-confiscated artwork); Museum of Fine Arts, Boston v. Seger-Thomschitz, 623 F.3d 1 (1st Cir. 2010) cert. denied, 131 S.Ct. 1612 (2011) reh’g denied, 10-901 2011 WL 1529816 (U.S. Apr. 25. 2011) (holding that statute of limitations on conversion was statute of general regulation that does not conflict with
31

federal policy). Defendants maintain that, similar to the statutes of general application directed toward matters of state concern, Section 18 “does not single out any identifiable immigration policy or regulation, but rather outlines acceptable forms of identification within the State of Indiana.” Defs.’ Resp. at 21.
The problem with Defendants’ argument here is that Section 18 is anything but a neutral law of general application that just happens to have a remote and indirect effect on foreign relations. Rather, it targets only one form of identification – CIDs issued by foreign governments. Moreover, Section 18 regulates CIDs in the broadest possible terms, restricting not just what state agencies may accept as valid identification but prohibiting what identification may be shown and accepted for purely private transactions. “A person,” the statute says, and that’s all it says. These sweeping regulations, targeted solely at foreign government-issued identification that consulates are, by treaty, entitled to issue, and which restrict the manner in which foreign citizens may travel, live, and trade in the United States have a direct effect on our nation’s interactions with foreign nations. Such interactions cannot be dictated or restricted by individual states. For these reasons, we find that, at this preliminary stage, Plaintiffs have established a likelihood of success on the merits of their claim that Section 18 is preempted.
3. Due Process and Equal Protection Plaintiffs also challenge Section 18 on due process and equal protection grounds, arguing that the statute is arbitrary and bears no rational relation to legitimate government
32

interests. Defendants rejoin that the statute is rationally related to the legitimate government purpose of ensuring the reliability of identification of individuals within the state and preventing fraud against law enforcement, merchants, and consumers.
Under traditional due process and equal protection analysis, state action must be sustained as long as it bears a rational relation to a legitimate governmental interest. R.A.V. v. City of St. Paul, Minn., 505 U.S. 377, 406 (1992). Even under this highly deferential standard of review, we find that Plaintiffs have demonstrated a reasonable likelihood of success on the merits of their claim that Section 18 is violative of due process and equal protection principles. Although we do not dispute that the stated purpose of ensuring the reliability of identification of individuals within the state and preventing fraud against the state is a legitimate governmental purpose, the breadth of the limitation imposed by Section 18, to wit, preventing any person (other than a police officer) from either knowingly presenting or accepting a CID as a valid form of identification for any purpose far exceeds its stated purpose and therefore is not rational.
While all parties agree that the State of Indiana has the authority to prohibit the use of various forms of identification, including CIDs, at state agencies, such as the Bureau of Motor Vehicles, Section 18 goes far beyond such regulation to prohibit their use or acceptance in any transaction requiring valid identification, even those between purely private parties who would otherwise be willing to accept CIDs in the context of wholly private transactions. Although Defendants maintain that there has long been a concern regarding the reliability of CIDs, Plaintiffs have presented evidence indicating that they
33

are actually a highly secure form of identification. Upon careful review of the admittedly limited evidence before us given the preliminary stage of this litigation, we are persuaded that CIDs are, at the very least, as reliable as a number of other forms of documentation that individuals are permitted to use for certain identification purposes in Indiana, such as leases, utility bills, and student ID cards. Accordingly, the legislature’s decision to single out for punishment individuals using CIDs for identification purposes from all other individuals, many of whom are using other, arguably more unreliable forms of identification simply does not rationally further the goal of the prevention of fraud or otherwise ensure the reliability of identification. Regrettably in our view, the distinction more accurately appears to have been designed simply to target foreign nationals. As the Supreme Court has recognized, “if the constitutional conception of ‘equal protection of the laws’ means anything, it must at the very least mean that a bare congressional desire to harm a politically unpopular group cannot constitute a legitimate governmental interest.” United States Dep’t of Agriculture v. Moreno, 413 U.S. 528, 534 (1973). II. Irreparable Harm/Inadequate Remedy at Law
Plaintiffs have met their burden on both of these prongs of the preliminary injunction analysis. It is well-established that, “‘[w]hen an alleged deprivation of a constitutional right is involved, most courts hold that no further showing of irreparable injury is necessary.’” Campbell v. Miller, 373 F.3d 834, 840 (7th Cir. 2004) (quoting Mitchell v. Cuomo, 748 F.2d 804, 806 (2d Cir. 1984)). Moreover, “showing irreparable harm is ‘[p]robably the most common method of demonstrating that there is no adequate
34

legal remedy.’” Id. (quoting 11A Wright, Miller & Kane, Federal Practice and Procedure § 2944). III. Balance of Harms
We have already found that Plaintiffs will suffer irreparable harm if a preliminary injunction does not issue. In contrast, Defendants will suffer minimal, if any, harm by allowing the status quo to be maintained pending a final determination in this matter, since these areas addressed by the new and soon to be enjoined state law will remain under federal controls and authority. Thus, the balance of harms weighs clearly in Plaintiffs’ favor. IV. Public Interest
Plaintiffs have also established that a preliminary injunction is in the public interest. It is well-established under controlling Seventh Circuit law that “the public has a strong interest in the vindication of an individual’s constitutional rights ....” O’Brien v. Town of Caledonia, 748 F.2d 403, 408 (7th Cir. 1984). Additionally, as the Ninth Circuit recently recognized in the closely analogous case, United States v. Arizona, 2011 WL 1346945, at *19, it is clearly not in the public interest “‘to allow the state ... to violate the requirements of federal law .... In such circumstances, the interest of preserving the Supremacy Clause is paramount.’” Id. (quoting Cal. Pharmacists Ass’n v. Maxwell-Jolly, 563 F.3d 847, 852-53 (9th Cir. 2009)) (emphasis omitted). V. Bond
Rule 65(c) of the Federal Rules of Civil Procedure provides that: “The court may 35

issue a preliminary injunction . . . only if the movant gives security in an amount that the court considers proper to pay the costs and damages sustained by any party found to have been wrongfully enjoined or restrained.” However, the Seventh Circuit has recognized that, “[u]nder appropriate circumstances bond may be excused, notwithstanding the literal language of Rule 65(c).” Wayne Chem., Inc. v. Columbus Agency Serv. Corp., 567 F.2d 692, 701 (7th Cir. 1977) (citations omitted). We hold that a bond is not required here, as Defendants are not facing any monetary injury as a result of the issuance of the preliminary injunction. VI. Conclusion
For the foregoing reasons, we GRANT Plaintiffs’ Motion for Preliminary Injunction. Defendants are hereby PRELIMINARILY ENJOINED from enforcing the following sections of Senate Enrolled Act 590: Section 18, to be codified as Indiana Code § 34-28-8.2, and Section 19, which amends Indiana Code § 35-33-1-1(1), by adding new sections (a)(11)-(a)(13) until further order of this Court. Defendants are hereby further ordered to inform forthwith all the affected Indiana state governmental entities of this injunction.
IT IS SO ORDERED.

Date: _______0_6_/2_4_/_2_0_1_1___________

_______________________________
SARAH EVANS BARKER, JUDGE United States District Court Southern District of Indiana

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Copies to:
Angela Denise Adams LEWIS & KAPPES aadams@lewis-kappes.com
Scott Leroy Barnhart INDIANA OFFICE OF THE ATTORNEY GENERAL scott.barnhart@atg.in.gov
William W. Barrett WILLIAMS HEWITT BARRETT & WILKOWSKI LLP wbarrett@wbwlawyers.com
Jose J. Behar HUGHES SOCOL 70 Madison St Chicago, IL 60602
Adam Clay INDIANA ATTORNEY GENERAL Adam.Clay@atg.in.gov
Katherine Desormeau AMERICAN CIVIL LIBERTIES UNION FOUNDATION kdesormeau@aclu.org
Kenneth J. Falk ACLU OF INDIANA kfalk@aclu-in.org
Wade Dunlap Fulford Indiana Attorney General wade.fulford@atg.in.gov
Lee Gelernt AMERICAN CIVIL LIBERTIES UNION FOUNDATION lgelernt@aclu.org
37

Jennifer Lynn Haley CITY OF INDIANAPOLIS, CORPORATION COUNSEL jhaley@indy.gov
Betsy M. Isenberg INDIANA OFFICE OF THE ATTORNEY GENERAL Betsy.Isenberg@atg.in.gov
Omar C. Jadwat AMERICAN CIVIL LIBERTIES UNION FOUNDATION ojadwat@aclu.org
Linton Joaquin National Immigration Law Center joaquin@nilc.org
Joshua Karsh HUGHES SOCOL PIERS RESNICK & DYM, LTD. jkarsh@hsplegal.com
Jan P. Mensz ACLU OF INDIANA jmensz@aclu-in.org
Matthew J Piers HUGHES SOCOL 70 Madison St. Chicago, IL 60602
Justin F. Roebel CITY OF INDIANAPOLIS, OFFICE OF CORPORATION COUNSEL jroebel@indygov.org
Gavin Minor Rose ACLU OF INDIANA grose@aclu-in.org
Robert Howard Schafstall CUTSINGER & SCHAFSTALL robhschafstall@gmail.com
38

Andre I. Segura AMERICAN CIVIL LIBERTIES UNION FOUNDATION asegura@aclu.org Karen Tumlin NATIONAL IMMIGRATION LAW CENTER tumlin@nilc.org Cecillia D. Wang AMERICAN CIVIL LIBERTIES UNION FOUNDATION cwang@aclu.org Tamara Weaver INDIANA ATTORNEY GENERAL tamara.weaver@atg.in.gov
39

 Case 1:11-cv-00708-SEB-MJD Document 84 Filed 07/14/11 Page 1 of 2 PageID #: 565

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION

INGRID BUQUER, et al.,

)

Plaintiffs,

)

v.

CITY OF INDIANAPOLIS, et al.,

Defendants.

)

) Cause No. 1:11-cv-0708-SEB-MJD
) ) ) ) )

ORDER

Come now the Plaintiffs and the Defendants, Marion County Prosecutor in his official

capacity and Johnson County Prosecutor in his official capacity, having filed their Stipulation to

Certify Case as a Class Action, and the Court having read the Stipulation, and being duly

advised, finds that good cause exists to grant it, and,

IT IS THEREFORE ORDERED that this case is certified as a class action pursuant to

Rule 23(b)(2) of the Federal Rules of Civil Procedure, with the Class A defined as:

All persons in Marion and Johnson Coun ties, Indiana, or who will be in Marion and Johnson Counties, Indiana, who are or will be subject to warrantless arrest pursuant to Section 19 of SEA 590 based on a determination that: a removal order issued against them by an immigration court; have or will have, a detainer or notice of action issued against them by the United States Department of Homeland Security; or they have been, or will be, indicted for or convic ted of one (1) or m ore aggravated felonies, as defined in 8 U.S.C. § 1101(a)(43).

This class is certified with regard to Plainti ffs’ claims that there are questions of law or

fact common to the class: whether Se ction 19 of Senate Enrolled Act 590, which

provides law enforce ment with discretion to a rrest individuals with a notice of action,

detainer, or removal order, is preempted by Federal law and is unconstitutional.

Case 1:11-cv-00708-SEB-MJD Document 84 Filed 07/14/11 Page 2 of 2 PageID #: 566
IT IS THEREFORE ORDERED that this case is certified as a clas s action pursuant to Rule 23(b)(2) of the Federal rule s of Civil Procedure, with the Class B defined as:
All persons in Marion and Johnson Counties, Indiana, or who will be in Marion and Johnson Counties, Indiana, w ho possess, or will possess, a valid consular identification card and are using it, or will use it, fo r non-fraudulent identification purposes. This class is certified with regard to Plainti ffs’ claims that there are questions of law or fact common to the class: whether Se ction 18 of Senate Enrolled Act 590, which provides the use of consular identification cards as a form of identification, is unlawful, is preempted by Federal law and is unconstitutional. IT IS FURTHER ORDERED that Kenneth J. Falk, Gavin Rose, Jan P. Mensz and the remainder of plaintiffs’ counsel are appointed as counsel for the class.

__________0_7_/1_4_/_2_0_1_1_________________

Date

Hon.

Southern

________________________________
Sa_r_a_h__E__v_a__n_s__B__a_r_k_e__r___________
United SStaAtReAsHDEiVsAtrNicStBCARoKuErtR, JUDGE SUDonuittiehsdetrrSnitacDtteissotrDifcitsItonrficdItniCdaionaunarat

Distribution List Attached:

 Case 1:11-cv-00708-SEB-MJD Document 123 Filed 11/20/11 Page 1 of 35 PageID #: 875

IN THE UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION

INGRID BUQUER, et al., Plaintiffs, v.
CITY OF INDIANAPOLIS, et al., Defendants.

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No. 1:11-cv-0708 SEB-MJD

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MEMORANDUM OF LAW IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT

INTRODUCTION

But for the issuance of a preliminary injunction in this cause (ECF No. 79), the plaintiffs

and the certified classes would be subject to the provisions of Senate Enrolled Act 590 (“SEA

590”) that are challenged in this case. Section 20 of SEA 590 (codified at Indiana Code § 35-33-

1-1(1)(a)(11)–(13)) permits law enforcement officials in Indiana to arrest an individual for (a)

the mere possession of a removal order issued by a federal immigration court; (b) the receipt of a

“detainer” or “notice of action” issued by the United States Department of Homeland Security;

or (c) a previous indictment for or conviction of an “aggravated felony,” as defined by federal

law. However, these are simply not current criminal activities. The statute thus authorizes law

enforcement officials to arrest persons despite the fact that there is no probable cause that such

persons have committed crimes; as such, it is violative of the Fourth Amendment to the United

States Constitution. Moreover, by authorizing warrantless arrests based on a determination of

immigration status—in many cases where the individual would not be subject to arrest by federal

immigration authorities—the statute is also preempted by federal law.

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And, if anything, Section 18 of SEA 590 (codified at Indiana Code § 34-28-8.2-1, et seq.) represents an even greater intrusion into federal authority. This provision creates a new infraction whereby persons offering or accepting a consular identification card (which are issued by foreign nations) will be subject to civil sanctions, even when the card is used for nonfraudulent purposes. Not only is this provision preempted by the exclusively federal responsibility to regulate non-citizens and to conduct relations with foreign governments— indeed, this provision arguably renders the United States non-compliant with an international treaty—but it will lead to the absurd and irrational consequence of criminalizing the use and acceptance of such identification when, for instance, an individual is cashing a check at a convenience store or attempting to receive medical services at the emergency room. This irrationality violates due process.
In entering a preliminary injunction in favor of the plaintiffs, this Court previously reached all issues presented by this case. There is no reason for these issues to be revisited, and these provisions of SEA 590 are every bit as illegal and unconstitutional now as they were five (5) months ago. The previously entered preliminary injunction should accordingly be made permanent.1
THE CHALLENGED STATUTES On July 1, 2011, the provisions of Senate Enrolled Act 590 (SEA 590) took effect in Indiana. Two (2) sections of SEA 590 are at issue in this case: 1. Section 20 of SEA 590 amends Indiana Code § 35-33-1-1(1) by adding new sub-sections (a)(11) –(a)(13), and provides as follows:

1

Because the issues presented by this case were previously addressed in the context of the

plaintiffs’ preliminary injunction motion, portions of this brief are taken, substantially verbatim,

from the briefing on that motion (ECF Nos. 18 & 65).

2

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(a) A law enforcement officer may arrest a person when the officer has:

*

*

*

(11) a removal order issued for the person by an immigration court;

(12) a detainer or notice of action for the person issued by the United States Department of Homeland Security; or

(13) probable cause to believe that the person has been indicted for or convicted of one (1) or more aggravated felonies (as defined in 8 U.S.C. 1101(a)(43)).

2. Section 18 of SEA 590 is codified as Indiana Code § 34-28-8.2-1, et seq., and provides as

follows:

Chapter 8.2. Offenses Related to Consular Identification

Sec. 1. As used in this chapter, “consular identification” means an identification, other than a passport, issued by the government of a foreign state for the purpose of providing consular services in the United States to a national of the foreign state.

Sec. 2. (a) This section does not apply to a law enforcement officer who is presented with a consular identification during the investigation of a crime.

(b) Except as otherwise provided under federal law, a person who knowingly or intentionally offers, accepts, or records a consular identification as a valid form of identification for any purpose commits a Class C infraction.2 However, the person commits:

(1) a Class B infraction for a second offense; and (2) a Class A infraction for a third or subsequent offense.

STATEMENT OF MATERIAL FACTS NOT IN DISPUTE

I.

FACTS CONCERNING THE PLAINTIFFS

A. The Named Plaintiffs

2

Under Indiana law a civil infraction can lead to (a) a judgment of up to ten thousand

dollars ($10,000) (Class A infraction); (b) a judgment of up to one thousand dollars ($1,000)

(Class B infraction); or (c) a judgment of up to five hundred dollars ($500) (Class C infraction).

IND. CODE § 34-28-5-4.

3

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Ingrid Buquer is a citizen of Mexico and a resident of Johnson County, Indiana, although she spends a significant amount of time in Marion County. (Corrected & Supp. Aff. of Ingrid Buquer [ECF No. 56-1], ¶¶ 1–2). She has applied for a U-visa—which she is eligible for because she is a victim of, and witness to, a violent crime, and has been helpful to the government in prosecuting the case—and has received an I-797 Notice of Action issued by USCIS informing her of the pendency of her application. (Id., ¶¶ 3–4). She also regularly uses a consular identification card (“CID”), issued by the Mexican Consulate in Indianapolis, for nonfraudulent purposes. (Id., ¶ 5). She regularly offers her CID when banking, shopping, and in other situations where identification is required in both Johnson County and Marion County. (Id., ¶ 6). She also offered this card to consular officials at the Mexican Consulate in Indianapolis as proof of her Mexican citizenship. (Id., ¶ 7). This CID is Ms. Buquer’s only method of photo identification because she is not able to obtain an identification card or a driver’s license from the State of Indiana, and because her Mexican passport is expired. (Id., ¶ 8). In fact, Ms. Buquer does not possess, nor can she obtain, any of the documents listed in 140 IAC 7-1.1-3(b)(1)(A) – (H) or in 140 IAC 7-1.1-3(b)(2) (both concerning Indiana’s documentary requirements for the obtaining of a driver’s license or identification card). (Second Supp. Aff. of Ingrid Buquer [ECF No. 65-1], ¶ 2 & Attachment).
Berlin Urtiz is also a Mexican citizen and has been a permanent resident of the United States since 2001. (Aff. of Berlin Urtiz [ECF No. 41-2], ¶ 1). He currently resides in Marion County. (Supp. Aff. of Berlin Urtiz [ECF No. 122-1], ¶ 2). In 2005, he was convicted of theft in Johnson County and sentenced to two (2) years in the Indiana Department of Correction, which were suspended to probation. (Aff. of Berlin Urtiz, ¶ 2). In 2010, approximately three (3) years after his sentence was served, Mr. Urtiz was taken into custody by the United States Immigration
4

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and Customs Enforcement (“ICE”) on the grounds that he had a record for an aggravated felony. (Id., ¶ 3). He was detained for roughly four (4) months pending his removal, although shortly after he was detained he filed a motion for post-conviction relief to have his conviction reduced to a misdemeanor, pursuant to his plea agreement. (Id., ¶¶ 4–5). On or about September 20, 2010, he was granted post-conviction relief and was released from detention by federal immigration officials. (Id., ¶ 6). On November 4, 2010, his theft conviction was thus vacated, and he was sentenced to the misdemeanor offense of conversion. (Id., ¶ 7). He was not required to serve any additional time, and there are no removal proceedings pending against him; rather, he remains a lawful permanent resident of the United States. (Id., ¶¶ 8–10).
Louisa Adair is a citizen of Nigeria and a resident of Marion County, Indiana. (Aff. of Louisa Adair [ECF No. 41-3], ¶ 1). She has a removal order, which was issued against her by an immigration court in 1996. (Id., ¶ 2). However, she is currently released on an Order of Supervision, whereby she reports to ICE every six (6) months. (Id., ¶ 3). She has received a valid employment authorization card from the Department of Homeland Security, which authorizes her to work in the United States, and each time she applies to renew her employment authorization card she receives an I-797 Notice of Action. (Id., ¶¶ 4–5). She is also the beneficiary of another I-797 Notice of Action issued by USCIS, establishing her relationship with her U.S. citizen mother. (Id., ¶ 6). Ms. Adair has a pending request for prosecutorial discretion before the ICE Chief Counsel’s office to join her Motion to Reopen and Terminate Removal Proceedings. (Id., ¶ 7). If this request is granted, she will be eligible to apply for lawful permanent residency because her mother is a U.S. citizen and she has an approved and current I-130 visa petition. (Id., ¶ 8).
B. The Certified Classes
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On July 14, 2011, this Court—pursuant to the parties’ stipulation (ECF No. 82)—
certified this cause as a class action, with two (2) separate classes, pursuant to Rule 23(a) and
(b)(2) of the Federal Rules of Civil Procedure.
Class A is defined as follows:
All persons in Marion and Johnson Counties, Indiana, or who will be in Marion and Johnson Counties, Indiana, who are or will be subject to warrantless arrest pursuant to Section 19 of SEA 5903 based on a determination that: a removal order issued against them by an immigration court; have or will have, a detainer or notice of action issued against them by the United States Department of Homeland Security; or they have been, or will be, indicted for or convicted of one (1) or more aggravated felonies, as defined in 8 U.S.C. § 1101(a)(43).
(ECF No. 84, at 1). Several attorneys who practice immigration law in Indiana have estimated
that, at the very least, thousands of persons represented by an immigration fall within this class
definition.4
Class B is defined as follows:
All persons in Marion and Johnson counties, Indiana, or who will be in Marion and Johnson Counties, Indiana, who possess, or will possess, a valid consular identification card and are using it, or will use it, for non-fraudulent identification purposes.

3

As indicated previously, both parties erroneously referenced Section 20 of SEA 590 as

Section 19 throughout much of this litigation. The class definition should refer to Section 20.

The parties have therefore filed their Joint Motion to Amend Definition of Class A (ECF No.

121) in order to correct this error in the class definition.

4

See Aff. of Jason Flora (ECF No. 39-1), ¶¶ 4–6 (300 clients falling within class

definition, and at least 15 immigration attorneys in Marion and Johnson Counties with similar

case-loads); Aff. of Steven L. Tuchman (ECF No. 39-2), ¶¶ 4–6 (no fewer than 200 clients

falling within class definition, and at least 35 attorneys in Marion and Johnson Counties with

similar case-loads); Aff. of Sarah L. Moshe (ECF No. 39-3), ¶¶ 4–6 (at least 150 clients falling

within class definition, and at least 25 immigration attorneys in Marion and Johnson Counties

with similar case-loads); Aff. of A. Michelle Gutierrez (ECF No. 39-4), ¶¶ 4–6 (at least 150

clients falling within class definition, and at least 20 immigration attorneys in Marion and

Johnson Counties with similar case-loads); Aff. of Thomas G. Robbin (ECF No. 39-5), ¶¶ 3–5

(at least 49 clients falling within class definition, and at least 20 immigration attorneys in Marion

and Johnson Counties with similar case-loads).

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(ECF No. 84, at 2). Again, there are at least hundreds, if not thousands of persons falling within this class definition.5 Indeed, according to information published by the Mexican Consulate in

Indianapolis, from June 2006 through May 2011 that consulate alone issued 72,950 consular

identification cards. (Aff. of Jessica M. Englert [ECF No. 39-6], ¶¶ 2–6 [translating information

available at http://consulmex.sre.gob.mx/Indianapolis/index.php/documentacion/4-d octos/34-mc as]).6

II.

FACTS CONCERNING CONSULAR IDENTIFICATION CARDS

Consular identification cards (CIDs) (matriculas consular in Spanish) are issued by

consulates to foreign nationals residing within the area of their circumscription. (Aff. of Sergio Aguilera [ECF No. 41-4], ¶ 6).7 The Mexican CID serves as official identification for Mexican

authorities, as well as proof of nationality, and is issued in accordance with Mexican

5

See Aff. of Jason Flora, ¶¶ 3, 5–6 (200 clients falling within class definition, and at least

15 immigration attorneys in Marion and Johnson Counties with similar case-loads); Aff. of

Steven L. Tuchman, ¶¶ 3, 5–6 (approximately 25 clients falling within class definition, and at

least 35 attorneys in Marion and Johnson Counties with similar case-loads); Aff. of Sarah L.

Moshe, ¶¶ 3, 5–6 (at least 100 clients falling within class definition, and at least 25 immigration

attorneys in Marion and Johnson Counties with similar case-loads); Aff. of A. Michelle

Gutierrez, ¶¶ 3, 5–6 (at least 60 clients falling within class definition, and at least 20 immigration

attorneys in Marion and Johnson Counties with similar case-loads).

6

Ms. Englert last visited this webpage on June 7, 2011. (Aff. of Jessica M. Englert, ¶ 2).

Undersigned counsel has confirmed that this information is still available as of November 7,

2011.

7

Sergio Aguilera served as the appointed Mexican Consul in Indianapolis from 2002

through early 2007. (Aff. of Sergio Aguilera, ¶ 2). The Mexican Consulate has been located in

Indianapolis since November 26, 2002. (Id., ¶ 3). This Consulate is subordinate to the Mexican

Embassy—which is located in Washington, D.C.—and is responsible for, among other things,

protecting the interests of Mexican nationals residing temporarily or permanently in the United

States (or merely visiting the United States), issuing passports and CIDs to Mexican nationals,

and engaging in public diplomacy. (Id.). There are several Mexican consulates located through

the United States, and the consulate in Indianapolis is responsible for performing these duties on

behalf of Mexican nationals in a region encompassing central and southern Indiana, Kentucky,

central and southern Ohio, and southern Illinois. (Id.).

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confidentiality laws. (Id.). The CID is issued pursuant to a foreign nation’s rights as a sovereign country and pursuant to the 1963 Vienna Convention on Consular Relations—to which the United States and Mexico are both signatories. (Id., ¶ 8). Indeed, under the Mexican Constitution, CIDs are one (1) of three (3) documents that constitute legal proof of Mexican nationality (the others are a Mexican birth certificate and a Mexican passport). (Id.). Due to their highly sophisticated security measures, CIDs are extremely difficult to forge. (Id., ¶ 9). They will not be issued to persons with a criminal record, persons subject to prosecution, or persons facing a judicial or administrative process. (Id.). The Mexican CID data base is linked to the Mexican National Security data bases. (Id.).
Mexican CIDs are issued by the Mexican Consulate, and are accepted for a variety of purposes by the Consulate. (Id., ¶ 10). However, most employees of the Consulate who issue and/or accept CIDs do not partake of diplomatic immunity. (Id.). Although the CIDs do not grant the bearer any immigration status in the United States, they are useful to locate Mexican nationals in case of emergencies. (Id., ¶ 6). They therefore serve the important purpose of allowing the Consulate to keep track of and to serve Mexican nationals. (Id., ¶ 7). In fact, persons who have been issued CIDs are required to get new ones in the event that their address changes. (Id.).
One of the concerns that motivated the decision to issue CIDs was the desire to assist persons with opening bank accounts and transferring funds from reputable institutions. (Id., ¶ 11). In many situations, Mexican nationals were forced to keep monies in their homes or on their persons because they did not have identification, leading to the loss of monies. (Id.). Indeed, due to a prior inability to access banks (because of a lack of identification), Mexican nationals served by the Indianapolis Consulate were preyed on by unscrupulous persons who,
8

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rather than perform the promised service of transferring monies from Indiana to Mexico, stole the monies. (Id.).8 Presently, therefore, while the principle use of CIDs occurs at banking or other check-cashing institutions and at hospitals in order to obtain medical attention, Mexican nationals utilize CIDs for a wide variety of other purposes, including the following: identifying themselves to law enforcement officers9; enrolling their children in school; renting an apartment or other residence; entering federal buildings or other institutions requiring picture identification; obtaining an Individual Tax Identification Number (ITIN) from the Internal Revenue Service (IRS) for the purpose of paying taxes in the United States; and even identifying themselves to the U.S. Citizenship and Immigration Services (USCIS). (Id., ¶ 12). In short, many Mexican nationals utilize CIDs as their primary form of identification in all situations in which

8

This concern was also noted during congressional hearings concerning CIDs. One

Congresswoman stated as follows:

[B]ecause [the CID] is an identification card, it provides Mexican nationals in the United States with access to banking services. Is that not better . . . than moneys that can be held in places where these individuals become victims because they know their money is under a mattress or somewhere else? Isn’t it better to have the banking institutions of America to be able to have these resources and, of course, to track whether or not any of these accounts are being used for illegal activities?

Consular Identification Cards: Hearing on the Federal Government’s Response to the Issuance and Acceptance in the United States Before the House Subcommittee on Immigration, Border Security, and Claims (hereinafter, “CID Hearing”), 108th Cong. 44–45, at 18 (2003) (Testimony of Representative Sheila Jackson Lee) (available at http://commdocs.house.gov/committees/ judiciary/hju87813.000/hju87813_0f.htm (last visited Nov. 7, 2011); see also id. at 43–45 (Testimony of Representative Luis V. Gutierrez).

9

Mexican nationals who are arrested for alleged crimes by state law enforcement have

certain rights given to them by treaties concerning notice to, and contact by, the Consulate. (Aff.

of Sergio Aguilera, ¶ 14). Therefore, the Consulate encourages Mexican nationals to use the

CID to identify themselves as Mexican citizens to authorities in such a situation. (Id.).

Consequently, at least in the past, the Consulate often received notices that Mexican nationals

had been arrested because these individuals had identified themselves using a CID. (Id.). These

notices, and the CID, were essential to allow the Consulate to fulfill its responsibility as the

representative of Mexico in Indiana. (Id.).

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identification is required. (Id., ¶ 13). Although some such persons may have other forms of
identification, such as passports, this latter identification is generally more costly to obtain or
replace and thus persons will leave it at their homes and not use it on a regular basis. (Id.). For
these reasons, some Mexican nationals may not have any form of identification on them other
than the CID. (Id.).
During his tenure as Mexican Consul in Indianapolis, former-Consul Aguilera met with
then-Governor Frank O’Bannon and his staff to gain recognition of the ability of Mexican
nationals to use the CID for these wide array of purposes. (Id., ¶ 4). In July of 2003, former-
Consul Aguilera received a letter from then-Governor O’Bannon in which the Governor stated as
follows:
The matricula [CID] serves the important purpose of providing verification of the identity of Mexican nationals in Indiana.
As you know, various state agencies have accepted the matricula for some time. The Bureau of Motor Vehicles accepts the matricula as a secondary form of identification toward obtaining drivers’ licenses, although separate proof of legal presence also is required. Various state law enforcement agencies, including the Indiana State Police, accept the matricula as proof of identity for law enforcement purposes. Positive identification is especially important in encounters with law enforcement officers, and recognizing the matricula is likely to increase cooperation between law enforcement organizations and Mexican nationals. Law enforcement acceptance of the matricula will save time and money that law enforcement agencies otherwise would have to spend on establishing positive identities.
The matricula contains security features that generally give it a high degree of reliability. Although some questions have been raised about the integrity of the matricula, it incorporates the best available technology, including both visible and invisible security features, some of which are visible only in special light or by use of a special decoder. I know that many private organizations, including banks and financial institutions, have found the matricula useful in establishing positive identity. I am happy to acknowledge the matricula as a form of identification in Indiana . . . .
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(Id., ¶ 4 & first attachment). Shortly thereafter, then-Governor O’Bannon issued a press release

indicating that “state government will accept the matricula consular . . . as a form of

identification for Mexican nationals.” (Id., ¶ 4 & second attachment). After this release, former-

Consul Aguilera continued to work with both former-Governor O’Bannon and current-Governor

Mitch Daniels to assure the continued acceptance of CIDs. (Id., ¶ 5). He spoke directly with

Governor Daniels about this issue, and was assured that there would be no change in policy.

(Id.).

STANDARD OF REVIEW

The standard for the granting of summary judgment in the Seventh Circuit is clear:

[S]ummary judgment is warranted only if there is no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law.

The initial burden of production rests upon the moving party to identify those portions of the pleadings depositions, answers to interrogatories, and admissions on file, together with the affidavits, in any, which it believes demonstrate the absence of a genuine issue of material fact. Once the moving party satisfies this burden, the nonmovant must set forth specific facts showing that there is a genuine issues for trial. The nonmovant must do more, however, than demonstrate some factual disagreement between the parties; the issue must be “material.”

Logan v. Commercial Union Ins. Co., 96 F.3d 971, 978 (7th Cir. 1996) (internal citations and

quotations omitted).

ARGUMENT

As indicated at the outset, all issues presented by this case were resolved by this Court in

the context of the plaintiffs’ preliminary injunction motion. The challenged statutes are illegal

and unconstitutional, and must now be permanently enjoined.

Arrest Provisions (Section 20 of SEA 590)

I.

BACKGROUND TO IMMIGRATION LAW AND REGULATION IN THE UNITED STATES

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The United States Constitution bestows on Congress both the authority to “establish an uniform Rule of Naturalization” (U.S. CONST. art. I, § 8, cl. 4) and the authority to “regulate Commerce with foreign nations” (U.S. CONST. art. I § 8, cl. 3). Additionally, the Constitution gives the President the leading role in the conduct of foreign affairs. (U.S. CONST. art. II, § 2). Control over immigration is thus constitutionally committed to the federal government: as the Supreme Court has stated, the regulation of immigration is “unquestionably exclusively a federal power.” DeCanas v. Bica, 424 U.S. 351, 354 (1976). Pursuant to its constitutional authority, Congress has enacted a detailed statutory scheme to regulate immigration known as the Immigration and Nationality Act (INA), which empowers the U.S. Department of Homeland Security (DHS), the U.S. Department of Justice (DOJ), and the U.S. Department of State— among other federal agencies—to enforce and administer immigration law. See 8 U.S.C. § 1101, et seq. Within DHS, various sub-agencies all have roles to play in enforcing and administering the INA. These include the U.S. Immigration and Customs Enforcement (ICE), the U.S. Customs and Border Protection (CBP), and the U.S. Citizenship and Immigration Services (USCIS). See 8 U.S.C. § 1103.
Federal immigration authorities utilize a standard form to inform persons with pending petitions before the government of the status of their cases. This form is known as the Notice of Action Form, and has been designated as Form I-797.10 This form may be used to notify a person simply that a petition or application with the agency has been received or it may be used to inform the person of a decision on his or her petition or application (whether that decision is
10 The United States Code of Federal Regulations contains numerous references, promulgated by DHS, to the Notice of Action Form as Form I-797. See, e.g., 8 C.F.R. § 204.5(n)(1); 8 C.F.R. § 207.7(f)(1); 8 C.F.R. § 208.21(c); 8 C.F.R. § 212.7(c)(9)(ii)(A); 8 C.F.R. § 214.2(e)(8)(iv)(B); 8 C.F.R. § 214.11(o)(11); 8 C.F.R. § 214.14(c)(5)(i)(A); 8 C.F.R. § 214.15(f)(2);
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favorable or unfavorable). See, e.g., 8 C.F.R. § 207.7(f)(1) (establishing Form I-797, a notice of action form used to inform refugees that their application to admit spouse or child has been approved); 8 C.F.R. § 214.15 (approval for visa application); 8 C.F.R. § 245.2(c) (establishing receipt of visa application). Thus, a Notice of Action may be issued to inform an individual that he or she has now been granted lawful status. Receipt of a Notice of Action is not an indicator of an individual’s immigration status and is not an indicator of unlawful activity or presence in the United States.
For those individuals who federal authorities have reason to believe may not be lawfully present in the United States, the INA contains detailed and comprehensive provisions establishing civil penalties for immigration violations and granting DHS the discretion to place non-citizens into removal proceedings. See 8 U.S.C. §§ 1225–1231. The mere presence of a non-citizen within the United States without lawful status does not subject the person to criminal penalties and incarceration, although it can lead to the civil remedy of removal. See 8 U.S.C. §§ 1182(a)(6)(A)(i), 1227(a)(1)(B)–(C).11 These removal proceedings take place within an administrative immigration court system over which DOJ has authority. See 8 C.F.R. § 1003.0, et seq.
If the federal government elects to place a non-citizen into removal proceedings, he or she may be released during the pendency of removal proceedings—or even after a removal order has been issued by an immigration judge. For example, 8 U.S.C. § 1226(a) provides that, based on a warrant issued by the Attorney General of the United States, a non-citizen may be arrested
11 A non-citizen does, however, commit a crime if he or she returns to the United States after having been formally removed or after voluntarily departing from the United States pending the execution of a final removal order. See 8 U.S.C. § 1326. Moreover, unlawful entry into the United States, which is distinct from unlawful presence, is a misdemeanor under federal law. See 8 U.S.C. § 1325.
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and detained pending a final removal decision. However, the statute also provides that the noncitizen may be released on bond or conditional parole and may, under various circumstances, be provided with work authorization. See 8 U.S.C. § 1226(a)(3). And, even if a removal order is issued by the immigration judge, the individual has the right to seek reconsideration and administrative and judicial review of the determination, and the non-citizen may be released on bond until the case is finally resolved. See 8 U.S.C. § 1229a(c)(5); 8 C.F.R. § 1241.1. Under various circumstances, an individual may also seek to re-open removal proceedings, even after the issuance of a final removal order, and this may stay the removal pending final disposition of the motion. See 8 U.S.C. § 1229a(c)(7). Additionally, if the Attorney General fails to remove the non-citizen for ninety (90) days after a removal order becomes final, the non-citizen is released from detention, subject to supervision by the Attorney General. See 8 U.S.C. § 1231(a)(3). In lieu of deportation, the Attorney General may also “permit an alien voluntarily to depart the United States” during a predetermined period of time. See 8 U.S.C. § 1229c.
The INA provides that an alien convicted of an “aggravated felony” is subject to removal and may not receive asylum in the United States, become a citizen, lawfully reenter the United States, or have any removal order cancelled by the Attorney General. See 8 U.S.C. §§ 1158(b)(2)(A)(ii), 1158(b)(2)(B)(i), 1227(a)(2)(A)(iii), 1229b(a)(3). However, the determination of when a particular crime constitutes an “aggravated felony” under federal immigration law is enormously complex. The definition of “aggravated felony” encompasses twenty-one (21) subsections, most of which in turn contain references to numerous crimes. See 8 U.S.C. § 1101(a)(43).12 As Justice Alito has previously opined, “[d]efense counsel who consults a
12 A few examples of “aggravated felonies” will suffice to illustrate the complexities involved in ascertaining whether any given crime qualifies an alien for removal. Pursuant to 8 U.S.C. § 1101(a)(43), the term “aggravated felony” includes, but is certainly not limited to, the
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guidebook on whether a particular crime is an ‘aggravated felony’ will often find that the answer
is not ‘easily ascertained.’” Padilla v. Kentucky, __ U.S. __, 130 S.Ct. 1473, 1489 (2010) (Alito,
J., concurring). Because of this complexity, it is not uncommon for federal appellate courts to
reach different conclusions as to whether an offense constitutes an “aggravated felony” for
immigration purposes. See, e.g., Leocal v. Ashcroft, 543 U.S. 1 (2004) (resolving a conflict
amongst the circuits by finding that felony driving under the influence [DUI] causing serious
following:
• “an offense described in section 1956 of Title 18 (relating to laundering of monetary instruments) or section 1957 of that title (relating to engaging in monetary transactions in property derived from specific unlawful activity) if the amount of the funds exceeded $10,000” (§ 1101(a)(43)(D));
• “a crime of violence (as defined in section 16 of Title 18, but not including a purely political offense) for which the term of imprisonment at least one year” (§ 1101(a)(43)(F));
• “a theft offense (including receipt of stolen property) or burglary offense for which the term of imprisonment at least one year” (§ 1101(a)(43)(G));
• “an offense described in section 1962 of Title 18 (relating to racketeer influenced corrupt organizations), or an offense described in section 1084 (if it is a second or subsequent offense) or 1955 of that title (relating to gambling offenses), for which a sentence of one year imprisonment or more may be imposed” (§ 1101(a)(43)(J));
• “an offense that (i) involves fraud or deceit in which the loss to the victim or victims exceeds $10,000, or (ii) is described in section 7201 of Title 26 (relating to tax evasion) in which the revenue loss to the Government exceeds $10,000 (§ 1101(a)(43)(M)); and
• “an offense described in paragraph (1)(A) or (2) of section 1324(a) of this title (relating to alien smuggling), except in the case of a first offense for which the alien has affirmatively shown that the alien committed the offense for the purpose of assisting, abetting, or aiding only the alien's spouse, child, or parent (and no other individual) to violate a provision of this chapter” (§ 1101(a)(43)(N)).
The term “aggravated felony” also applies to enumerated offenses whether they violate federal or state law, and also applies to such offenses in violation of the law of a foreign country for which the term of imprisonment was completed within the previous fifteen (15) years. 8 U.S.C. § 1101(a)(43).
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bodily injury did not constitute an “aggravated felony” for immigration purposes). If ICE receives information from federal or local law enforcement officials that a non-
citizen is already in criminal-justice custody on non-immigration-related charges, it may issue a detainer requesting that the law enforcement agency hold the alien for up to forty-eight (48) hours (not including weekend days and holidays) past the time that the detainee would otherwise be released so that ICE may assume custody. See 8 C.F.R. § 287.7(d). The detainer, however, immediately and automatically expires at the end of the 48-hour period. See id. It is not a criminal warrant, but is simply a voluntary request to the local agency that the “agency advise the Department, prior to release of the alien, in order for the Department [of Homeland Security] to arrange to assume custody.” 8 C.F.R. § 287.7(a).
Federal law permits the delegation of authority to enforce civil immigration law to state and local law enforcement officials only in certain specific, limited circumstances. For example, DHS may authorize state or local law enforcement officers to assist with enforcement of immigration laws “[i]n the event the Attorney General determines that an actual or mass influx of aliens arriving . . . presents urgent circumstances requiring an immediate Federal response.” 8 U.S.C. § 1103(a)(10). In addition, federal law also provides that DHS may enter into written agreements with states or political subdivisions of a state to allow qualified officers or employees of the state or subdivision to serve as immigration officers. See 8 U.S.C. § 1357(g)(1). These contracts are known as “287(g) agreements,” although currently neither the State of Indiana nor any political subdivision therein has entered into such an agreement with the federal government. See U.S. Immigration and Customs Enforcement, Fact Sheet: Delegation of Immigration Authority Section 287(g) Immigration and Nationality Act, at http://www.ice.gov/news/library/ factsheets/287g.htm (data as of Sept. 2, 2011) (last visited Nov. 7, 2011).
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II.

SECTION 20 OF SEA 590 AUTHORIZES WARRANTLESS ARRESTS WHEN THERE IS NO

PROBABLE CAUSE TO BELIEVE THAT A CRIME HAS OCCURRED, AND THUS VIOLATES THE

FOURTH AMENDMENT TO THE UNITED STATES CONSTITUTION.

By its terms, Section 20 of SEA 590 permits law enforcement official in Indiana to make

“arrests” under certain, enumerated circumstances. As such, there can be no doubt that these

provisions implicate the Fourth Amendment. See, e.g., Tennesse v. Garner, 471 U.S. 1, 7 (1985)

(“Whenever an officer restrains the freedom of a person to walk away, he has seized that

person.”). As has often been said, “[t]he ultimate touchstone of the Fourth Amendment is

‘reasonableness.’” Kentucky v. King, __ U.S. __, 131 S.Ct. 1849, 1856 (2011) (quoting Brigham

City v. Stuart, 547 U.S. 398, 403 (2006). “[A]n arrest is reasonable under the Fourth

Amendment so long as there is probable cause to believe that some criminal offense has been or is being committed.” Fox v. Hayes, 600 F.3d 819, 837 (7th Cir. 2010) (emphasis in original)

(citing Devenpeck v. Alford, 543 U.S. 146, 153–56 (2004)). However, Indiana Code § 35-33-1-

1(a)(11) through (13)—by permitting arrests solely on the bases of a removal order, a detainer or

Notice of Action, or an indictment for or conviction of an aggravated felony—explicitly allows

law enforcement officials to arrest persons without probable cause of any unlawful conduct

whatsoever.

After all, as is indicated above, not only is it not a crime for a person to have a removal

order issued against him or her, but a person with such an order may not be subject to

immigration detention at all: he or she may not be deportable, or federal authorities may have

released him or her on bond or supervision during the pendency of removal proceedings (or even

after a removal order issues). Similarly, a detainer—which is a 48-hour administrative request

issued when an alien is in custody on an unrelated charge—is neither a crime nor evidence of a

crime. This is simply a “civil administrative detainer,” which is entirely distinct from a criminal

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arrest warrant. See United States v. Flores-Sandoval, 422 F.3d 711, 713 (8th Cir. 2005). The regulations authorizing issuance of ICE detainers do not require any showing of probable cause to believe that a person is deportable, and they do not require any neutral judicial officer to approve the issuance of a detainer. See 8 C.F.R. § 287.7. A Notice of Action is likewise nothing more than a notice from the federal government that it has taken some action, including favorable action, on a case. Issuance of a detainer or a Notice of Action therefore does not signify that any crime has been committed, or even that the subject is deportable: a favorable Notice of Action may actually signify the contrary. Finally, having been indicted or convicted in the past of an aggravated felony does not constitute probable cause to believe that any current crime has been committed. Indeed, this includes persons who have fully served their sentences, persons who have been acquitted of any wrong-doing, persons against whom indictments were dismissed, persons who were adjudicated guilty of or pled guilty to a lesser offense that does not qualify as an “aggravated felony,” and persons released on bond by a criminal court during the pendency of the proceedings.
In order for there to be a lawful arrest, “the Fourth Amendment requires that police have probable cause to believe a person has committed or is committing a crime.” United States v. Scheets, 188 F.3d 829, 836 (7th Cir. 1999). The challenged statute, however, mandates warrantless arrests for conduct that is explicitly not criminal. This violates the Fourth Amendment and is unconstitutional. (See ECF No. 79, at 20–22). III. SECTION 20 OF SEA 590 CONSTITUTES THE IMPERMISSIBLE STATE REGULATION OF, AND
INTERFERENCE WITH, IMMIGRATION AND IS ACCORDINGLY PREEMPTED. Because Indiana Code § 34-22-1-1(a)(11) through (13) represents a clear violation of the Fourth Amendment, there is no need for this Court to proceed any further in addressing the permissibility of these provisions. However, if it chooses to do so, it is also apparent that the
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statute is preempted by virtue of the Supremacy Clause, U.S. CONST. art. VI, § 2, and it must be enjoined for that reason as well. Section 20 impermissibly regulates immigration by allowing warrantless arrests for individuals based purely on immigration-related determinations, outside of the control of the federal government. It also intrudes on a field that Congress has occupied, and it conflicts with the federal scheme for immigration enforcement.
A. Background to Preemption Doctrine By virtue of the Supremacy Clause, it is “[a] fundamental principle of the Constitution . . . that Congress has the power to preempt state law.” Crosby v. Nat’l Foreign Trade Council, 530 U.S. 363, 372 (2000). Preemption requires an examination of congressional intent, and federal regulations have no less preemptive effect than federal statutes. Fid. Fed. Savings & Loan Ass’n v. De la Cuesta, 458 U.S. 141, 152–53 (1982). A state statute may thus be preempted in three (3) ways: “by express language in a congressional enactment, by implication from the depth and breadth of a congressional scheme that occupies the legislative field, or by implication because of a conflict with a congressional enactment.” Lorillard Tobacco Co. v. Reilly, 533 U.S. 525, 541 (2001) (citations omitted). The last two (2) forms of preemption, field and conflict preemption, are both considered “implied.” Lozano v. City of Hazelton, 620 F.3d 170, 203 (3d Cir. 2010). “Implied field preemption occurs when state or local governments attempt regulation in a field which Congress has implied an intent to exclusively occupy.” Id. at 204. This intent can be inferred when the federal scheme is “so pervasive as to make reasonable the inference that Congress left no room for the States to supplement it.” Gade v. Nat’l Solid Wastes Mgmt. Ass’n, 505 U.S. 88, 98 (1992) (internal quotations omitted). The last category of preemption—“implied conflict preemption”—occurs when “compliance with both federal and state regulations is a physical impossibility” or when state law “stands as an obstacle to the accomplishment and
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execution of the full purposes and objectives of Congress.” Pac. Gas & Elec. Co. v. State Energy Res. Conservation & Dev. Comm’n, 461 U.S. 190, 204 (1983) (internal quotations omitted).
As noted above, the United States Constitution leaves to the federal government the exclusive authority to establish immigration policy and regulate immigration. See U.S. CONST. art. I, § 8, cl. 3–4. The Supremacy Clause forbids any state “regulation of immigration.” DeCanas v. Bica, 424 U.S. 351, 353–54 (1976). This flat prohibition on state regulation of immigration is required because immigration regulation is “unquestionably exclusively a federal power.” Id. at 354; see also id. at 355 (federal “constitutional power” to regulate immigration preempts state law “whether latent or exercised”); Truax v. Raich, 239 U.S. 33, 42 (1915) (“The authority to control immigration . . . is vested solely in the Federal Government.”). Therefore, only the federal government may establish immigration policy and the process of “determin[ing] who should or should not be admitted into the country,” DeCanas, 424 U.S. at 355, and the “conditions lawfully imposed by Congress upon . . . residence of aliens,” Takahashi v. Fish and Game Comm’n, 334 U.S. 410, 419 (1948). See also Toll v. Moreno, 458 U.S. 1, 11 (1982). “[T]he regulation of aliens is so intimately blended and intertwined with responsibilities of the national government that where it acts, and the state also acts on the same subject . . . the law of the state . . . must yield to it.” Hines v. Davidowitz, 312 U.S. 52, 66 (1941).
However, this complete preemption of the immigration field does not prohibit state laws that touch on immigration matters if they address legitimate state interests with only a speculative and indirect impact on immigration. DeCanas, 424 U.S. at 355–56.
B. Section 20 of SEA 590 is preempted and is therefore void.
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Not only is the federal government granted the exclusive authority to regulate immigration, but “Congress provided the Executive with a fair amount of discretion to determine how federal officers enforce immigration law.” United States v. Arizona, 641 F.3d 339, 351 (9th Cir. 2011), cert. pending (emphasis in original). The arrest provisions (Section 20) of SEA 590 directly conflict with federal decision-making—both discretionary and non-discretionary— necessary to effectuate immigration law and immigration proceedings, and these provisions thereby “‘stand[] as an obstacle’ to the full implementation of federal law.” Gade, 505 U.S. at 103. (quoting Hines, 312 U.S. at 67). This may be easily seen with respect to each of the items regulated by Section 20: a. Removal Order (IND. CODE § 35-33-1-1(1)(a)(11)) – Indiana has no legitimate interest in arresting persons who have removal orders issued against them. The federal removal process is exclusively a concern of federal immigration authorities and is not a criminal proceeding. Moreover, having a prior removal order is not proof that the person is subject to detention by federal authorities.13 As Ms. Adair’s situation demonstrates, a person may have been issued a removal order, but—with permission of federal authorities—nonetheless be allowed to be free from custody, obtain work authorization, and even possibly receive lawful permanent status. However, notwithstanding the fact that the federal government may exercise its discretion to release a person with a removal order, Indiana has now announced that they are subject to arrest for having been issued that removal order. This is clearly an “obstacle” to the accomplishment of federal objectives.
13 Even if having a pending removal order subjected a person to detention by federal authorities, the law is clear that federal law preempts the authority of state and local officers to make arrests for civil violations of federal immigration law absent specific authorization by federal law. See United States v. Arizona, 641 F.3d 339, 362–63 (9th Cir. 2011), cert. pending; United States v. Urrieta, 520 F.3d 569, 574 (6th Cir. 2008).
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b. Detainer (IND. CODE § 35-33-1-1(1)(a)(12)) – Next, given that an immigration detainer is by definition lodged against persons who are already in custody, see 8 C.F.R. § 287.7(a) (“A detainer serves to advise another law enforcement agency that the Department seeks custody of an alien presently in the custody of that agency.”) (emphasis added), it is not clear when (if ever) state and local law enforcement will have the opportunity to enforce this portion of Section 20. Regardless, it is clear that a detainer is not proof of criminal activity: it is merely a request to temporarily hold an individual in detention for up to an additional forty-eight (48) hours. See 8 C.F.R. § 287.7(a),(d). It is a “civil administrative detainer.” Flores-Sandoval, 422 F.3d at 713. Indiana, by authorizing arrest for the mere issuance of an immigration detainer is converting these immigration detainer requests into arrest warrants. Under federal law, ICE has discretion to decline to take custody of individuals that initially have immigration detainers placed on them, and certainly removal proceedings may never be initiated against these individuals. But under Indiana law, these individuals are now subject to arrest. Indiana is attempting to criminalize something that the federal government clearly intends to be civil. This represents a direct conflict with federal law and policy. c. Notice of Action (IND. CODE § 35-33-1-1(1)(a)(12)) – Similarly, the allowance of arrest based on nothing more than receipt of a Notice of Action represents a profound conflict with federal immigration law. These notices are inherently non-criminal and merely indicate that a person has received some information from the DHS (or one of its sub-agencies) concerning any of a wide array of immigration matters. Clearly federal immigration policy does not intend that persons in possession of these Notices of Action be subject to arrest, for, in the eyes of the federal government, those who receive the notices have done nothing wrong—let alone anything justifying arrest. The Supreme Court in DeCanas noted that a state can enter the otherwise
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preempted immigration field only if it is advancing its own legitimate interests and there is only a speculative and indirect impact on immigration. 424 U.S. at 355. But, Indiana has no interest in arresting persons who receive this notice and this obviously has a significant impact on the policy of the federal government of providing notices—but not arresting—persons involved in immigration matters. This arrest provision, too, is preempted. d. Aggravated felonies (IND. CODE § 35-33-1-1(1)(a)(13)) – The same is true with arresting those who have been indicted or convicted of “aggravated felonies.” Initially, it is clear that the language of the statute allows even for the arrest of United States citizens who have been convicted or indicted for these crimes. “‘Obstacle’ conflict pre-emption . . . requires a broader inquiry into the purposes underlying a federal statute, and whether a state law stands as an obstacle to effectuation of those purposes.” Lozano, 620 F.3d at 204. Obviously, arresting citizens stands as an obstacle to effectuating the purpose of immigration law. Moreover, federal law specifies that the immigration penalties associated with aggravated felonies arise only if the person has been convicted of the offense. See 8 U.S.C. § 1101(a)(43). Yet Section 20 authorizes the arrest of those who may only have been indicted, and the statute runs counter to the federal intent to limit these penalties to those with convictions. And, finally, if the United States has fully resolved, to its satisfaction, the issue of an alien’s conviction of an aggravated felony and has determined that no penalty will be imposed, it stands as an obstacle to effectuating the federal purposes to allow the arrest by state authorities. The fact that Mr. Urtiz, with the knowledge of DHS, is free and walking the streets, but subject to arrest by state law because of a
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since-modified conviction starkly illustrates the conflict between state and federal law and demonstrates that the statute is preempted.14

*

*

*

Ultimately, the easiest way to demonstrate the preemptive effect of federal law here is to focus

on how the statute will operate. Perhaps local law enforcement will suspect that a person is

subject to the statute and will contact federal authorities or review law enforcement databases to

discover that a Notice of Action was issued or that the person was indicted for an aggravated

felony in the past. Law enforcement will then arrest the person. However, these are not crimes,

so the person will not be taken to state court for an initial hearing. Instead, local law

enforcement officers will contact federal immigration authorities to announce that they have

arrested someone who had an aggravated felony indictment dismissed long in the past, or who

received a Notice of Action when being informed of his or her lawful status, or who has a

removal order that has been stayed by order of an immigration judge. The federal immigration authorities will then, undoubtedly, disclaim any interest in assuming custody over the person.15

14 Furthermore, the determination of whether a given state crime qualifies as an “aggravated felony” is a complex one, as detailed above; immigration judges make this determination based on statutory analysis and the application of case-law. Yet Section 20 would give this task to local law enforcement officers in the field, a fact that might predictably lead to erroneous legal determinations in conflict with the federal scheme.
15 This highlights another basis for preemption; the challenged statute will impose an impermissible burden on federal resources. Hines v. Davidowitz, 312 U.S. 52, 67 (1941); see also Egelhoff v. Egelhoff ex rel. Breiner, 532 U.S. 141, 150 (2001) (holding that “differing state regulations affecting an ERISA plan’s ‘system for processing claims and paying benefits’ impose ‘precisely the burden that ERISA pre-emption was intended to avoid’”) (internal citation omitted).
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The fact that these provisions directly conflict with, and far exceed, state authority can be seen by reviewing 8 U.S.C. § 1357(a)(2), which limits the powers of a federal officer to arrest aliens without a warrant to those
who in his presence or view is entering or attempting to enter the United States in violation of any law or regulation made in pursuance of law regulating the admission, exclusion, expulsion, or removal of aliens, or to arrest any alien in the United States, if he has reason to believe that the alien so arrested is in the United States in violation of any such law or regulation and is likely to escape before a warrant can be obtained for his arrest. Indiana law therefore purports to give to Indiana law enforcement officials greater power to arrest non-citizens than they would have were they federal officials. This is a clear sign that the challenged law is preempted.16 The challenged statute seeks to implement precisely what the Supreme Court struck down more than seventy (70) years ago—the subjection of non-citizens to “indiscriminate and repeated interception and interrogation by public officials” and “the possibility of inquisitorial practices and police surveillance.” Hines, 312 U.S. at 66, 74. As in Hines, “this legislation deals with the rights, liberties, and personal freedoms of human beings, and is in an entirely different category from [non-preempted legislation such as] state tax statutes or state pure food laws regulating labels on cans.” Id. at 68. By subjecting individuals to warrantless arrests for immigration purposes, the challenged statute directly regulates the conditions under which non-citizens may remain in the country. DeCanas, 424 U.S. at 355; see also Chy Lung v. Freeman, 92 U.S. 275, 281 (1875) (invalidating statute regulating arrival of passengers from foreign port); Villas at
16 This serves to emphasize that the challenged provisions will also have a direct impact on the primary role and day-to-day operations of Indiana police officers, shifting their focus from local concerns to one of federal significance. State laws that impact aliens are preempted unless the regulation is passed pursuant to state “police powers” that are “focuse[d] directly upon” and “tailored to combat” what are “essentially local problems.” DeCanas, 424 U.S. at 356-57. The challenged statute does not concern any locally-based priorities or state police power.
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Parkside Partners v. City of Farmers Branch, 701 F.Supp.2d 835, 855 (N.D. Tex. 2010)

(invalidating ordinance requiring non-citizens to demonstrate immigration status prior to renting

housing). Federal law strikes a balance that gives discretion to the United States to determine

whether or not to arrest persons without status. The challenged law destroys this balance. “The

Supreme Court has consistently found state and local laws which alter the careful balancing of

objectives accomplished by a federal law to be pre-empted.” Lozano, 620 F.3d at 212. The

challenged statute here is preempted as well. (See ECF No. 79, at 23–28).

Consular Identification Card Provisions (Section 18 of SEA 590)

Section 18 is an impermissible state regulation of immigration because it criminalizes the

use of consular identification by foreign nationals in the United States, including those who are

lawfully present. It is also preempted because it conflicts with the federal role in conducting

affairs with foreign nations. Finally, it violates the Due Process Clause of the Fourteenth

Amendment.

I.

LEGAL BACKGROUND TO CONSULAR IDENTIFICATION CARDS

Under the Vienna Convention on Consular Relations, to which the United States is a

signatory, a foreign consulate is granted permission to issue travel documents, visas, or other

appropriate documents to its citizens and to otherwise protect and assist its citizens in the foreign

country. See Vienna Convention on Consular Relations and Optional Protocol on Disputes

(hereinafter, “Vienna Convention”), Dec. 14, 1969, art. V(a),(d)–(e), 21 U.S.T. 77, available at

1969 WL 97928. Pursuant to these powers, CIDs are issued by many “embassies and consulates

of foreign states, including the United States, to encourage their citizens abroad to register with

the consulates so that they can receive standard consular services, be notified if necessary, and be

located upon inquiry by relatives and authorities.” Congressional Research Service, Consular

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Identification Cards: Domestic and Foreign Policy Implications, the Mexican Case, and Related

Legislation, at CRS-1 (2005), available at http://www.fas.org/sgp/crs/misc/RL32094.pdf (last

visited Nov. 7, 2011).

Under the Vienna Convention, a foreign national arrested or detained in the United States

must be advised of his or her right to request that appropriate consular officials be notified of

their detention without delay. See Vienna Convention, supra art. 36. Thus, in congressional

testimony, a U.S. State Department official testified that the Department views CIDs as a useful

tool for law enforcement officers to help facilitate observance of the United State’s treaty

obligations. See CID Hearing, supra, at 142–43 (Testimony of Acting Deputy Assistant

Secretary of State Roberta Jacobson). The uses and value of CIDs are detailed above. However,

for present purposes it is noteworthy that the U.S. Treasury Department has adopted regulations

that specifically permit financial institutions to accept CIDs and other foreign government-issued

documents. See 31 C.F.R. § 1020.220(a)(2)(i)(A)(4)(ii) (requiring banks to obtain an

“identification number” from persons, which may be an “alien identification card number” or the

“number and country of issuance of any other government-issued document”); see also Customer

Identification Programs for Financial Institutions, 68 Fed. Reg. 55335, 55336 (proposed Sept. 25,

2003) (now codified at 31 C.F.R. pt. 103) (“As issued, the final rules neither endorse nor preclude reliance on particular forms of foreign government issued identification.”).17

II.

TO THE EXTENT THAT IT MAKES THE USE AND ACCEPTANCE OF CIDS UNLAWFUL, SECTION

18 OF SEA 590 INTERFERES WITH THE EXCLUSIVELY FEDERAL ROLE IN CONDUCTING

FOREIGN POLICY, AND IS PREEMPTED.

17 The cited regulation implements 31 U.S.C. § 5318(l), which requires the U.S. Treasury Department to promulgate regulations that provide minimum standards for the identification and verification of account holders.
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Any restriction on the use of CIDs therefore impacts directly on the United States’ treaty obligations as well as on United States’ foreign relations. Notwithstanding this impact, however, Indiana has now taken the extraordinary step of making it unlawful to offer or accept consular identification as a valid form of identification for any purpose. Therefore, if a Mexican national such as Ms. Buquer shows her CID when she is shopping after being asked to produce identification so she can use a charge card or cash a check, she will violate the law—as will the person who accepts the identification. Indeed, if she shows the Mexican Consulate her identification, as she has done in the past, she will likely violate the law.18 Indiana has therefore insinuated itself into the relationship between the United States and foreign countries and has proceeded to attempt to dictate that relationship. This is no more tenable than it would be were Indiana to unilaterally enter (or dissolve) a treaty with Mexico. Cf. United States v. Arizona, 641 F.3d 339, 367 (9th Cir. 2011), cert. pending (Noonan, J., concurring) (“That fifty individual states or one individual state should have a foreign policy is absurdity too gross to be entertained. In matters affecting the intercourse of the federal nation with other nations, the federal nation must speak with one voice.”).
Ultimately, it is the President who is given the constitutional authority to act in the areas of relations with other countries. See Am. Ins. Ass’n v. Garamendi, 539 U.S. 396, 414 (2003)
18 The statute does provide that showing or accepting the CID is an infraction “[e]xcept as otherwise provided under federal law.” IND. CODE § 34-28-8.2-2(a). Although the Vienna Convention implicitly allows foreign governments to issue CIDs, it says nothing about the propriety of offering or accepting them as identification, and not all employees of the Mexican consulate are protected by immunity. Moreover, it appears that embassies and consulates constitute territory of the nation in which they are located, and the Mexican Consulate is thus likely subject to Indiana laws. See McKeel v. Islamic Republic of Iran, 722 F.2d 582, 587–89 (9th Cir. 1983) (concluding that the United States embassy in Iran is not subject to United States jurisdiction insofar as embassies “remain[] the territory of the receiving state,” and citing the Restatement (Second) of the Foreign Relations law of the United States).
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(finding that California law attempting to regulate insurance policies sold in Europe during the Holocaust impermissibly interfered with executive power and was preempted). “Although the source of the President’s power to act in foreign affairs does not enjoy any textual detail, the historical gloss on the ‘executive Power’ vested in Article II of the Constitution has recognized the President’s ‘vast share of responsibility for the conduct of our foreign relations.’” Id. (quoting Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 610–11 (1952) (Frankfurter, J., concurring)). Congress also has responsibilities through its war and foreign commerce powers. Id. Therefore, “[n]o State can rewrite our foreign policy to conform to its own domestic policies. Power over external affairs is not shared by the States; it is vested in the national government exclusively.” United States v. Pink, 315 U.S. 203, 233 (1942). Thus, the Supreme Court has long held that “[f]or local interests the several states of the Union exist, but for national purposes, embracing our relations with foreign nations, we are but one people, one nation, one power.” Chae Chan Ping v. United States, 130 U.S. 581, 606 (1889). Consequently, a law that has a direct impact on foreign relations is preempted and void, even if not directly conflicting with a treaty. See Zschernig v. Miller, 389 U.S. 429, 441 (1968) (finding that Oregon statute that imposed conditions on non-resident aliens taking property by succession or testamentary disposition was invalid as intruding on foreign affairs that is entrusted to the President.).
The challenged statute has this direct impact and is prohibited. The question of whether a consulate can issue CIDs is certainly addressed by the Vienna Convention, an international treaty ratified by Congress. The State Department, cognizant of the federal interest in consular relations, has also cautioned as follows:
[T]he U.S. Government must carefully avoid taking action against consular identification cards that foreclose our options to document or assist Americans overseas. The Department itself issues documentations other than passports for U.S. citizens abroad and at times issues similar identity cards or travel documents.
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Should a foreign country decide to limit acceptance of such documentation or other traditional documentation such as State-issued IDs or driver’s licenses, the actions of American citizens abroad could be seriously restricted. CID Hearing, supra, at 143 (Testimony of Ms. Jacobson). Thus, the risk exists, at the federal level, that if actions are taken against CIDs, there could be serious international repercussions. The risk is no less at the state level and demonstrates that Indiana is entering an area where federal interests are exclusive. While it should require no further citation to demonstrate this, it is certainly noteworthy that the sovereign nations of Mexico, Brazil, Guatemala, El Salvador, and Columbia have appeared in this cause in opposition to the State’s restrictions on the use of CIDs (ECF No. 76; see also id. at 5 (“SEA 590 . . . infringes on Mexico’s ability to assist and protect its nationals in a manner inconsistent with treaty obligations under the Vienna Convention.”), and the Mexican government also issued multiple public statements expressing its concerns over the challenged law (ECF Nos 76-1 & 76-2). This further emphasizes that the challenged statute implicates the exclusive powers of the federal government in an area where federal control must be exclusive—“[i]f it be otherwise, a single State can, at her pleasure, embroil us in disastrous quarrels with other nations,” Chy Lung v. Freeman, 92 U.S. at 275, 280 (1875). As noted above, the caution with which the federal government has chosen to proceed with regard to consular identification is apparent also from the regulations adopted by the U.S. Department of Treasury, which do not preclude financial institutions from accepting CIDs and other foreign government-issued documents—and, as noted by the nation of Mexico, numerous financial institutions in Indiana have chosen to accept CIDs (ECF No. 76, at 13 n.16).19
19 Although the Department of Treasury has adopted regulations that appear to endorse the propriety of banks accepting CIDs as a form of identification, there is nothing in these regulations that permit customers to offer the CIDs. Therefore, even if the bank is immunized by
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The “sweeping regulation[]” of SEA 590’s CID provision—which is “targeted solely at foreign government-issued identification that consulates are, by treaty, entitled to issue” and which “restrict[s] the manner in which foreign citizens may travel, live, and trade in the United States”—has “a direct effect on our nation’s interactions with foreign nations” and “cannot be dictated or restricted by individual states” (ECF No. 79, at 32). The carefully crafted role that the federal government has adopted with respect to CIDs, which is intended to maintain relations with foreign countries and satisfy national treaty obligations, has nonetheless been abandoned by the State. Indiana has no right, or ability, to attempt to regulate this matter of national concern. III. SECTION 18 OF SEA 590 IS ARBITRARY AND IRRATIONAL, AND THEREFORE VIOLATES DUE
PROCESS. Finally, the State’s attempt to preclude the use of CIDs in all interactions, including those between private parties, drifts so far afield that it violates the Fourteenth Amendment to the United States Constitution. State action violates substantive due process and equal protection where the state action is not “rationally related to a legitimate government interest.” R.A.V. v. City of St. Paul, Minn., 505 U.S. 377, 406 (1992). While scrutiny under rational-basis review is not particularly rigorous, there are numerous instances in which courts have found that governmental action fails to satisfy even this minimal standard of review. See, e.g., Romer v. Evans, 517 U.S. 620 (1996) (state constitutional amendment barring homosexual and bi-sexual residents from protection under anti-discrimination laws); City of Cleburne, Tex. v. Cleburne Living Ctr., 473 U.S. 432 (1985) (zoning ordinance excluding a group home for the mentally retarded); U.S. Dep’t of Agriculture v. Moreno, 413 U.S. 528 (1973) (statute denying food stamp benefits to families with unrelated persons); Berger v. City of Mayfield Heights, 154 F.3d 621
federal law from liability for accepting the identification, the CID-holder is not immunized for offering it.
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(6th Cir. 1998) (ordinance requiring clearing of growth from vacant lots that have less than a certain length of street frontage).
The irrationality of the CID provision of SEA 590 is apparent from its text. On the one hand, it recognizes that police officers may request identification and receive CIDs when they are investigating criminal activity, and it therefore immunizes the officers. See IND. CODE § 3428-8.2-2(a). On the other hand, however, the minute that a person responds to the request from the officer and actually provides a CID, he or she will have committed a crime. This is not rational. The statute also criminalizes the showing of Mexican CIDs at the Mexican consulate, and it prohibits the offering or accepting of this form of identification in numerous transactions between private parties—ranging from the cashing of a check to the renting of an apartment to the enrolling of a child in school. What possible rational purpose can be served by criminalizing the offering or use of the CID in these circumstances, particularly where the private parties involved are free to accept a wide array of inherently unreliable or informal identification, such as a utility bill, a student identification card, or even oral self-identification?
The State can certainly decree that a CID cannot be used as official identification to obtain a driver’s license or to enter (state) governmental buildings. However, as this Court previously held,
the legislature’s decision to single out for punishment individuals using CIDs for identification purposes from all other individuals, many of whom are using other, arguably more unreliable forms of identification simply does not rationally further the goal of the prevention of fraud or otherwise ensure the reliability of identification. Regrettably in our view, the distinction more accurately appears to have been designed simply to target foreign nationals. (ECF No. 79, at 34). There is no rational reason why the State should be allowed to proscribe what type of identification can be used between private parties in the manner that it has done. In addition to its other faults, the challenged statute is irrational.
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CONCLUSION
For the foregoing reasons, there are no disputed issues of material fact in this cause,
summary judgment should be entered in favor of the plaintiffs and the certified class, and the
previously entered preliminary injunction should be made permanent.
/s/ Gavin M. Rose Gavin M. Rose No. 26565-53 Kenneth J. Falk No. 6777-49 ACLU of Indiana 1031 E. Washington St. Indianapolis, IN 46202 317/635-4059 fax: 317/635-4105 kfalk@aclu-in.org grose@aclu-in.org
Angela D. Adams No. 24959-49 LEWIS & KAPPES, P.C. One America Tower, Suite 2500 Indianapolis, IN 46282-0003
Lee Gelernt, Pro Hac Vice Omar C. Jadwat, Pro Hac Vice Andre I. Segura, Pro Hac Vice AMERICAN CIVIL LIBERTIES UNION FOUNDATION IMMIGRANTS’ RIGHTS PROJECT 125 Broad Street, 18th Floor New York, New York 10004
Cecillia D. Wang, Pro Hac Vice Katherine Desormeau, Pro Hac Vice AMERICAN CIVIL LIBERTIES UNION FOUNDATION IMMIGRANTS’ RIGHTS PROJECT 39 Drumm Street San Francisco, California 94111
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Case 1:11-cv-00708-SEB-MJD Document 123 Filed 11/20/11 Page 34 of 35 PageID #: 908
Linton Joaquin, Pro Hac Vice Karen C. Tumlin, Pro Hac Vice NATIONAL IMMIGRATION LAW CENTER 3435 Wilshire Boulevard, Suite 2850 Los Angeles, California 90010 Attorneys for Plaintiffs
CERTIFICATE OF SERVICE I hereby certify that on this 20th day of November, 2011, a copy of the foregoing was filed electronically with the Clerk of this Court. The following parties will be served by operation of the Court’s electronic system: Betsy M. Isenberg Deputy Attorney General betsy.isenberg@atg.in.gov Wade Dunlap Fulford Deputy Attorney General wade.fulford@atg.in.gov Robert Howard Schafstall CUTSINGER & SHAFSTALL robhschafstall@gmail.com Patricia Erdmann Deputy Attorney General patricia.erdmann@atg.in.gov Adam Clay Deputy Attorney General
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Case 1:11-cv-00708-SEB-MJD Document 123 Filed 11/20/11 Page 35 of 35 PageID #: 909 Adam.Clay@atg.in.gov Justin F. Roebel Assistant Corporation Counsel jroebel@indy.gov /s/ Gavin M. Rose Gavin M. Rose Attorney at Law
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 Case 1:11-cv-00708-SEB-MJD Document 138 Filed 12/21/11 Page 1 of 6 PageID #: 978

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION

INGRID BUQUER, et al., Plaintiffs, v.
THE CITY OF INDIANAPOLIS, et al., Defendants.

) ) ) ) ) Cause No.: 1:11-cv-0708-SEB-MJD ) ) ) )

Defendant City of Indianapolis’s Response in Opposition to Summary Judgment and Brief in Support of its Cross-Motion for Summary Judgment Defendant City of Indianapolis, by counsel Justin F. Roebel, hereby requests that the Court deny Plaintiffs’ request for summary judgment against the City of Indianapolis. While Defendant City takes no position on the merits of the substantive claims as applied to other Defendants, Plaintiffs’ claims fail as a matter of law with regard to the City. As such, Defendant City cross-moves to request that this Court enter judgment in its favor. Plaintiffs have improperly sued the City pursuant to 42 U.S.C. section 1983 based on the State of Indiana’s immigration law. Plaintiffs allege the City’s officers would be charged with enforcement of the immigration law. Plaintiff seeks from the City injunctive relief, attorneys’ fees, and “all other proper relief.” However, a valid Section 1983 claim against a municipality requires evidence of a municipal custom, policy, or practice which violates federal law. Mere adherence—or, in this case, potential adherence—with a state policy or law is insufficient to support a claim. Because Plaintiffs have failed to identify an improper municipal custom, policy, or practice, all claims against the City of Indianapolis should be summarily denied.

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Case 1:11-cv-00708-SEB-MJD Document 138 Filed 12/21/11 Page 2 of 6 PageID #: 979
I. Statements of Facts A. Statement of Material Facts in Dispute with Regard to Plaintiffs’ Motion for Summary Judgment
Defendant City of Indianapolis is not aware of any material facts in dispute which would prevent this Court from adjudicating Plaintiffs’ claims against the City as a matter of law.
B. Statement of Material Facts Not in Dispute with Regard to Defendant City of Indianapolis’s Cross-Motion for Summary Judgment
Plaintiffs are challenging the constitutionality of two sections of Indiana Senate Enrolled Act 590, which was subsequently codified in Indiana Code sections 34-28-8.2-1 et seq. and 3533-1-1. (Dkt. 1, ¶¶ 95-98.) These challenged statutory provisions—allegedly allowing arrests without probable cause and creating civil sanctions for the use of consular identification—are all matters of state law. See I.C. §§ 34-28-8.2-1 et seq. and 35-33-1-1. Plaintiffs challenged these laws prior to their July 1, 2011 effective dates. (Dkt. 1, ¶¶ 22, 23; S.E.A. 590.) On June 24, 2011, this Court entered a preliminary injunction, enjoining the two challenged provisions. (Dkt. 79 at 3.)
II. Standard of Review Pursuant to Rule 56(c) of the Federal Rules of Civil Procedure, summary judgment
“sought should be rendered if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” A party moving for summary judgment must show “an absence of evidence to support the non-moving party’s case.” Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). Thereafter, a non-moving party responding to a properly made and supported summary judgment motion must set forth facts showing a genuine issue of material fact from
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which a reasonable jury could return a verdict in its favor. See Wolf v. City of Fitchburg, 870 F.2d 1327, 1329 (7th Cir. 1989); Posey v. Skyline Corp., 702 F.2d 102, 105 (7th Cir. 1983). An issue is genuine only if “the evidence is such that a reasonable jury could return a verdict for the non-moving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
III. Argument A. A municipality cannot be found liable under 42 U.S.C. Sec. 1983 for potentially enforcing a state law.
The City of Indianapolis is entitled to summary judgment because it cannot be held liable under 42 U.S.C. section 1983 for enforcing—or the prospective possibility of enforcing— Indiana’s Immigration Law. In analyzing a civil rights claim against a municipality, the first inquiry “under § 1983 is the question whether there is a direct causal link between a municipal policy or custom and the alleged constitutional deprivation.” City of Canton v. Harris, 489 U.S. 378, 385 (1989). A municipality can only be found liable under Section 1983 “where the municipality itself causes the constitutional violation at issue.” Id. (emphasis in original). Thus, a municipality cannot be liable for mere enforcement of a state law. Bethesda Lutheran Homes & Servs. v. Leean, 154 F.3d 716, 718 (7th Cir. 1998) (finding a county “cannot be held liable under section 1983 for acts that it did under the command of state or federal law”); Surplus Store & Exchange, Inc. v. Delphi, 928 F.2d 788, 791 (7th Cir. 1991).
In Surplus Store & Exchange, the Seventh Circuit explained why a local governmental unit’s mere adherence to a state law cannot support a Monell claim:
It is difficult to imagine a municipal policy more innocuous and constitutionally permissible, and whose causal connection to the alleged violation is more attenuated, than the “policy’ of enforcing state law. If the language and standards from Monell are not to become a dead letter, such a “policy” simply cannot be sufficient to ground liability against a municipality for actions which they were compelled to perform under state law.
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Case 1:11-cv-00708-SEB-MJD Document 138 Filed 12/21/11 Page 4 of 6 PageID #: 981
928 F.2d at 791-92. Here, Plaintiffs are challenging the constitutionality of two sections of Indiana’s new
immigration law, which was passed as Indiana Senate Enrolled Act 590 and has subsequently been codified in Indiana Code sections 34-28-8.2-1 et seq. and 35-33-1-1. (Dkt. 1, ¶¶ 95-98.) Thus, the challenged statutory provisions—allegedly allowing arrests without probable cause and creating civil sanctions for the use of consular identification—are matter of state policy. See Surplus Store & Exchange, 928 F.2d at 791-92. Plaintiffs do not challenge any City ordinance or other City policy. (Dkt. 1.) As the Court enjoined the law prior to its effective date, the City took no action in furtherance of the state law. (Dkt. 79.) Because there is no allegation of an unconstitutional municipal policy, all Section 1983 claims against the City of Indianapolis— including requests for attorney fees—should be summarily denied.
IV. Conclusion Because there is no evidence of an unconstitutional municipal policy or practice,
Defendant City of Indianapolis respectfully requests that the Court conclude that the City is entitled to judgment on all claims as a matter of law.
Respectfully Submitted, s/ Justin F. Roebel_____________________ Justin F. Roebel (23725-49) Assistant Corporation Counsel OFFICE OF CORPORATION COUNSEL 200 East Washington Street, Room 1601 Indianapolis, Indiana 46204 Telephone: (317) 327-4055 Fax: (317) 327-3968 E-Mail: jroebel@indygov.org Counsel for Defendant City of Indianapolis
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CERTIFICATE OF SERVICE I hereby certify that on December 21, 2011, a copy of the foregoing served by electronic filing. Notice of this filing will be sent to the following parties by operation of the Court’s electronic filing system Parties may access this filing through the Court’s system.

Angela Denise Adams LEWIS & KAPPES One American Square, Suite 2500 Indianapolis, IN 46282
Kenneth J. Falk Jan P. Mensz Gavin Rose ACLU of Indiana 1031 E. Washington Street Indianapolis, IN 46202
Karen Tumlin Linton Joaquin Shiu-Ming Cheer National Immigration Law Center 3465 Whilshire Boulevard, Ste 2850 Los Angeles, CA 90010
Matthew J. Piers Jose J. Behar Johsua Karsh HUGHES SOCAL 70 Madison St. Suite 4000 Chicago, IL 60602
Jill Z. Julian Assistant United States Attorney Office of the United States Attorney 10 W. Market St., Suite 2100 Indianapolis, IN 46204-3048

Adam Clay Betsy M. Isenberg Scott Leroy Barnhart Patricia Orloff Erdmann INDIANA ATTORNEY GENERAL 302 West Washington Street, Indiana Government Center South Fifth Floor Indianapolis, IN 46204
Robert Howard Schafstall CUTSINGER & SCHAFSTALL 98 North Jackson Street P O Box 159 Franklin, IN 46131
William W. Barrett WILLIAMS BARRETT & WILKOWSKI, LLP 600 N. Emerson Ave. P.O. Box 405 Greenwood, IN 46142

s/ Justin F. Roebel___________ Justin F. Roebel (23725-49) Assistant Corporation Counsel

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Case 1:11-cv-00708-SEB-MJD Document 138 Filed 12/21/11 Page 6 of 6 PageID #: 983 OFFICE OF CORPORATION COUNSEL 200 East Washington Street, Room 1601 Indianapolis, Indiana 46204 Telephone: (317) 327-4055 Fax: (317) 327-3968
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 Case 1:11-cv-00708-SEB-MJD Document 145 Filed 01/04/12 Page 1 of 11 PageID #: 1022

IN THE UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION

INGRID BUQUER, et al., Plaintiffs, v.
CITY OF INDIANAPOLIS, et al., Defendants.

)

)

)

)

)

No. 1:11-cv-0708 SEB-MJD

)

)

)

)

PLAINTIFFS' REPLY IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT AND RESPONSE IN OPPOSITION TO CITY'S CROSS-MOTION FOR SUMMARY JUDGMENT

INTRODUCTION

The plaintiffs in this case challenge two (2) recently enacted provisions of Indiana law

that, by their very nature, are enforced by municipal officers—including officers employed by

the City of Indianapolis (“City”). Although the City expresses no opinion on the merits of the

plaintiffs’ legal claims (ECF No. 138, at 1), it has sought summary judgment (and opposed the

plaintiffs’ request for summary judgment) on the grounds that a duly enacted state law does not

create a municipal “practice, policy, or custom” for which the City may be held liable. Of

course, were this so, then no plaintiff would be permitted to challenge the constitutionality or

legality of a state law that is enforced by municipal actors. Not surprisingly, therefore, this is not

the law. The City’s argument is without merit, and its Cross-Motion for Summary Judgment

(ECF No. 137) must be denied. The plaintiffs are entitled to summary judgment against the City.

ISSUES CONCERNING THE FACTS

The City does not dispute any of the material facts asserted by the plaintiffs (ECF No.

123, at 3–11). Consequently, these facts are deemed admitted. See S.D. IND. L.R. 56.1(e). The

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plaintiffs likewise do not dispute any of the City’s factual assertions, which consist exclusively

of the procedural history of this case and the challenged statutes (ECF No. 138, at 2).

ARGUMENT

The City argues that it may not be held liable in this case because any “practice, policy, or custom” is attributable only to the State of Indiana. This argument is erroneous.1

I.

A MUNICIPAL “PRACTICE, POLICY, OR CUSTOM” IS ESTABLISHED IF THE CITY IS NOT ACTING

UNDER THE COMPULSION OF STATE LAW.

As the City notes, one question that must be answered in any case alleging municipal

liability under 42 U.S.C. § 1983 is whether the unconstitutional act “may fairly be said to

represent official policy” of that municipality and whether the policy was the “moving force”

behind the violation. Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 694 (1978). Stated another

way, there must exist a “direct causal link,” City of Canton v. Harris, 489 U.S. 378, 386, (1989),

between the violation and a “deliberate choice [by the municipality] to follow a course of action .

. . made from among various alternatives.” Pembaur v. City of Cincinnati, 475 U.S. 469, 483

(1986). As another district court in the Seventh Circuit has observed, “[a]lthough this standard is

well established, the Supreme Court has yet to discuss its application in the context a

municipality’s enforcement of a state law. In this vacuum, lower courts have come to their own

unique conclusions.” N.N. ex rel. S.S. v. Madison Metro. Sch. Dist., 670 F.Supp.2d 927, 934

(W.D. Wis. 2009). It is unnecessary, however, for this court to wade through a variety of

1

Only the City has responded to the plaintiffs’ summary judgment motion or filed a

summary judgment motion of its own. As noted immediately above, the City’s argument is

premised entirely on its (erroneous) notion that a municipality may not be held liable for its

enforcement of a state statute. It is worth noting at the outset that this argument is not available

to the prosecutor defendants represented by the Office of the Attorney General in this case, for

under Indiana law prosecutors are state officials. See, e.g., Hendricks v. New Albany Police

Dep’t, No. 4:08-cv-0180, 2010 WL 4025633, at *3 (S.D. Ind. Oct. 13, 2010) (collecting

numerous cases).

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formulations on the proper rule under these circumstances, for the Seventh Circuit has spoken clearly on the issue.
In Surplus Store & Exchange, Inc. v. City of Delphi, 928 F.2d 788 (7th Cir. 1991), which forms the basis for the City’s argument, the court addressed whether a municipality could be held liable for an allegedly unconstitutional deprivation of property as a result of an alleged “‘policy’ of allowing or instructing its police officers to enforce” a state statute that permitted the deprivation without providing a hearing. Id. at 791. Said the court:
It is difficult to imagine a municipal policy more innocuous and constitutionally permissible, and whose causal connection to the alleged violation is more attenuated, than the “policy” of enforcing state law. If the language and standards from Monell are not to become a dead letter, such a “policy” simply cannot be sufficient to ground liability against a municipality. Id. at 791–92. The City’s focus on the court’s holding in Surplus Store, however, is unpersuasive, for seven (7) years later the Seventh Circuit either back-tracked from or further explicated the broad pronouncement of Surplus Store in Bethesda Lutheran Homes & Services, Inc. v. Leean, 154 F.3d 716 (7th Cir. 1998)—a case that is cited by the City but not addressed in any detail. In Bethesda Lutheran, the court addressed whether a county could be held liable for money damages resulting from its unconstitutional enforcement of a state law concerning the eligibility for admission to long-term care facilities for individuals with mental disabilities. Concluded the court: The plaintiff who wants a judgment against [a] municipality under [§ 1983] must be able to trace the action of the employees who actually injured him to a policy or other action of the municipality itself. When the municipality is acting under compulsion of state or federal law, it is the policy contained in that state or federal law, rather than anything devised or adopted by the municipality, that is responsible for the injury.
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Id. at 718 (emphasis added). The court thus expressly adopted the rationale expressed by the Sixth Circuit in Garner v. Memphis Police Department, 8 F.3d 358 (6th Cir. 1993), whereby a municipality cannot be held liable under § 1983 “for acts that it did under the command of state or federal law.” 154 F.3d at 718 (emphasis added). In other words, a municipality may not be forced to endure the Hobson’s choice between acting in an allegedly unconstitutional manner and acting in a manner in direct violation of state or federal law.2
Thus, “the question under Bethesda Lutheran is whether the municipality enforcing a state law has enough discretion in implementation to make the municipality ‘responsible’ for any constitutional violation that occur[s].” N.N., 670 F.Supp.2d at 936. Other circuits have likewise held that the focal point governing municipal liability for the enforcement of state law is on whether the municipality was compelled to act (or prohibited for acting) by that law. See Vives v. City of New York, 524 F.3d 346, 353–55 (2d Cir.2008) (In determining whether a municipality could be held liable for enforcing state law, the question is whether “the Police Department’s policy makers can instruct its officers not to enforce a given section—or portion thereof—of the penal law.”); Cooper v. Dillon, 403 F.3d 1208, 1222–23 (11th Cir. 2005) (A municipality may be held liable for its decision to enforce an unconstitutional state statute when the municipality had discretion not to enforce it.); Garner, 8 F.3d at 364–65 (A municipality may be held liable for a policy enacted under discretion afforded by state statute.). And at least one district court in another circuit has reached a similar conclusion. See Lederman v. United States, No. 99-3359, 2007 WL 1114137, *3 (D.D.C. Apr. 13, 2007) (The District of Columbia can be held liable

2

The Second Circuit has characterized the holding of Bethesda Lutheran as dicta insofar

as the Seventh Circuit “found the policy in issue to be mandatory and thus further held that the

city was not liable.” Vives v. City of New York, 524 F.3d 346, 352 n.2 (2d Cir. 2008). The

mandatory/discretionary distinction, which is in keeping with the holdings of multiple circuits, is

not dicta simply because the state law in that case was mandatory. Regardless, there is no reason

to depart from this rule.

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under § 1983 for enforcing a regulation that it promulgated under authority of Congress because

Congress did not compel the District to adopt the particular regulation and did not require the District to enforce it).3

II.

THE CITY HERE IS NOT COMPELLED TO ACT OR PROHIBITED FROM ACTING BY INDIANA LAW,

BUT RATHER IS AFFORDED A CHOICE FOR WHICH IT MAY BE HELD LIABLE.

It should require little citation to demonstrate that the City is not compelled to act (or

prohibited from acting) by either statute that is challenged in this case. After all, although

Indiana Code § 35-33-1-1(a) permits police officers employed by the City to arrest persons for

enumerated reasons, it does not require them to make such an arrest. See IND. CODE § 35-33-1-

1(a) (“A law enforcement officer may arrest a person . . . .”) (emphasis added). Likewise,

Indiana Code § 34-28-8.2-1, et seq., prohibits a person from offering or accepting a consular

identification card, but it does not compel the issuance of citations by a municipal officer. In

each instance, “the City could elect not to arrest anyone at all.” McKusick v. City of Melbourne, 96 F.3d 478, 484 (11th Cir. 1996); see also, e.g., Lederman, 2007 WL 1114137, at *4 (“[T]he

statute mandates the choice of prosecutors, but not the prosecutor’s choices.”). This Court

previously made this clear in referencing “the discretionary authority of government officials”

that is “present in virtually all [civil and criminal] statutes.” Buquer v. City of Indianapolis, 797

F.Supp.2d 905, 917 (S.D. Ind. 2011). If the City chose not to enforce the challenged statutes, it

would be contravening neither constitutional norms nor Indiana law.

3

There also exists authority for the proposition that municipalities may be held liable even

for enforcing state statutes that compelled them to act. See, e.g., Conroy v. City of Philadelphia,

421 F.Supp.2d 879, 886 (E.D. Pa. 2006); Davis v. Camden, 657 F.Supp. 396, 402–04 (D.N.J.

1987). These cases generally base their holdings on the notion that municipal actors “are

required to independently assess the constitutionality of [state] laws” and have the choice to

refuse to enforce unconstitutional statutes. Davis, 657 F.Supp. at 404. While there is some

appeal to this logic, it is foreclosed in this circuit by Bethesda Lutheran.

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There can thus be no doubt that the City is left with a choice in determining whether or
not to enforce the challenged provisions of Indiana law. Under Bethesda Lutheran, this choice
suffices to establish a municipal “custom, practice, or policy” within the meaning of Monell.
The fact that the City has not yet enforced these statutes—for the preliminary injunction was
issued before they took effect—is an issue of ripeness, not one of municipal policy or practice.
However, this Court previously rejected the defendants’ contention that the claims in this case
are unripe:
[I]t is well-established that a plaintiff need not be required to undergo arrest and prosecution before being able to challenge the constitutionality of a statute. See, e.g., Babbitt v. UFW Nat'l Union, 442 U.S. 289, 298 (1979) (“[O]ne does not have to await the consummation of a threatened injury to obtain preventive relief.”) (citation and quotation omitted); Steffel v. Thompson, 415 U.S. 452, 459 (1974) (“[I]t is not necessary that petitioner first expose himself to actual arrest or prosecution to be entitled to challenge a statute that he claims deters the exercise of his constitutional rights.”); Commodity Trend Serv., Inc. v. Commodity Futures Trading Comm’n, 149 F.3d 679, 687 (7th Cir. 1998) (“It is not necessary . . . that a plaintiff expose itself to actual arrest or prosecution.”).
As long as there is a credible threat of enforcement, the second prong of the ripeness doctrine is satisfied. Such a threat is credible “when a plaintiff’s intended conduct runs afoul of a criminal statute and the Government fails to indicate affirmatively that it will not enforce the statute.” Commodity Trend Serv., 149 F.3d at 687 (citing Virginia v. American Booksellers Ass’n, Inc., 484 U.S. 383, 393 (1988) (emphasis in original)). Here . . . neither party has pointed to evidence to establish, nor is there anything in the statute or legislative history to suggest, that Section [20] will not be enforced as written.
797 F.Supp.2d at 917 (citations to additional reporters omitted); see also Ezell v. City of Chicago, 651 F.3d 684, 695–96 (7th Cir. 2011) (announcing similar principles and collecting
Seventh Circuit precedent). Thus, in Steffel itself the Supreme Court permitted a challenge to a
state statute to proceed even though the only parties named as defendants were municipal
officials (as well as various private parties), and it did so without the necessity of inquiring into
whether a municipal policy had been established. 415 U.S. at 454–55. The original complaint in
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American Booksellers was likewise filed only against a county police official, who appears to have remained a defendant in the Supreme Court, and the State in that case only became a party because of its decision to intervene. 484 U.S. at 390. In this case, too, no separate inquiry was required to establish a municipal policy.
To be clear, the City in the present case is not impotent. To the contrary, it may avoid liability by expressly disavowing any intention to enforce the challenged provisions of Indiana law, and by taking all reasonable steps necessary to ensure that its officers and employees abide by this dictate. Were these steps taken, the plaintiffs would have no continuing controversy with the City and it could be dismissed from this action. The City, however, has elected not to take these steps. Accordingly, the discretionary nature of the statutes challenged in this case renders the City liable unless and until it “indicate[s] affirmatively that it will not enforce the statute[s].” Buquer, 797 F.Supp.2d at 917 (quoting Commodity Trend Serv., 149 F.3d at 687) (emphasis in original).4 III. THE CITY’S ARGUMENT, IF ACCEPTED, WOULD MEAN THAT NUMEROUS DECISIONS WERE
ERRONEOUSLY DECIDED AND WOULD FREQUENTLY LEAD TO THE COMPLETE INABILITY OF PLAINTIFFS TO BRING A LAWSUIT CHALLENGING THE CONSTITUTIONALITY OR LEGALITY OF
A STATE STATUTE THAT CAUSES THEM INJURY. Were the City’s argument meritorious, it would lead to the inevitable conclusion that a wide array of pre-enforcement challenges to state statutes wherein local officials have been named as defendants were wrongly decided (or at least subject to dismissal under Monell). For a small sampling of such cases from the Supreme Court, the Seventh Circuit, and this Court, see Crawford v. Marion County Election Bd., 553 U.S. 181, 185–87 (2008) (plurality opinion) (local

4

Indeed, the City itself notes that it has only never enforced the statutes at issue in this

case “as the challenged provisions never went into effect” (ECF No. 137, ¶ 4; see also ECF No.

138, at 4 [“As the Court enjoined the law prior to its effective date, the City took no action in

furtherance of the state law.”]).

7

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election board named in challenge to constitutionality of state statute concerning voter identification); Majors v. Abell, 317 F.3d 719, 721 (7th Cir. 2003) (local election officials, among others, named in challenge to state electioneering statute); Sequoia Books, Inc. v. Ingemunson, 901 F.2d 630, 631 (7th Cir. 1990) (local officials named as defendants in challenge to state obscenity statute); Doe v. Prosecutor, 566 F.Supp.2d 862, 869 (S.D. Ind. 2008) (Hamilton, J.) (Mayor of Indianapolis, among others, named as defendant in action challenging the constitutionality of state law); and Brownsburg Area Patrons Affecting Change v. Baldwin, 943 F.Supp. 975, 978 (S.D. Ind. 1996) (Hamilton, J.), aff’d, No. 96-3981, 1999 WL 33611333 (7th Cir. Sept. 17, 1999) (county election officials, among others, named as defendants in action challenging the constitutionality of state statute regulating political action committees).
Indeed, the City’s argument would lead to the irrational result whereby a plaintiff wishing to challenge a state statute that is enforced by local officials simply could not do so. After all, in such circumstances—when a state statute is enforced by local officials, as most criminal statutes are—state officials are not always properly named as a defendant (for the plaintiff’s injury is both caused by the municipal enforcement of the statute and redressable only through an order prohibiting that municipal enforcement). The plaintiff’s only alternative would be to name as defendants every single law enforcement officer in the municipality (in their official capacities), a tack that would be incredibly burdensome, administratively impractical, and bureaucratically nonsensical—and a tack that the City surely does not desire the plaintiffs to avail themselves of.5

5

The fact that this would be a plaintiff’s only alternative under the City’s argument makes

another point clear. Like a formal practice or policy, “an act performed pursuant to a ‘custom’

that has not been formally approved by an appropriate decisionmaker may fairly subject a

municipality to liability on the theory that the relevant practice is so widespread as to have the

force of law.” Bd. of County Comm’rs of Bryan County v. Brown, 520 U.S. 397, 404 (1997)

(citations omitted). As indicated both previously and above, the City’s police officers are

presumed to enforce the law as written absent the express disavowal of an intent to do so. Given

8

Case 1:11-cv-00708-SEB-MJD Document 145 Filed 01/04/12 Page 9 of 11 PageID #: 1030 For these practical reasons, too, the City’s argument is without merit. CONCLUSION For the foregoing reasons, as well as those stated previously, the plaintiffs are entitled to
summary judgment against the City of Indianapolis (and all other defendants). The plaintiffs’ Motion for Summary Judgment (ECF No. 122) should be granted, and the City’s Cross-Motion for Summary Judgment (ECF No. 137) should be denied.
this presumption, the discretionary enforcement of Indiana law as written is clearly a “custom” capable of subjecting the City to municipal liability even if it is not a formally adopted policy. Indeed, it is difficult—if not impossible—to envision circumstances under which a plaintiff could properly bring an action against every police officer employed by a municipality but the municipality itself could not be held liable. In this case, the injury is clearly sufficiently “widespread” to amount to municipal custom.
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/s/ Gavin M. Rose Gavin M. Rose No. 26565-53 Kenneth J. Falk No. 6777-49 ACLU of Indiana 1031 E. Washington St. Indianapolis, IN 46202 317/635-4059 fax: 317/635-4105 kfalk@aclu-in.org grose@aclu-in.org
Angela D. Adams No. 24959-49 LEWIS & KAPPES, P.C. One America Tower, Suite 2500 Indianapolis, IN 46282-0003
Lee Gelernt, Pro Hac Vice Omar C. Jadwat, Pro Hac Vice Andre I. Segura, Pro Hac Vice AMERICAN CIVIL LIBERTIES UNION FOUNDATION IMMIGRANTS’ RIGHTS PROJECT 125 Broad Street, 18th Floor New York, New York 10004
Cecillia D. Wang, Pro Hac Vice Katherine Desormeau, Pro Hac Vice AMERICAN CIVIL LIBERTIES UNION FOUNDATION IMMIGRANTS’ RIGHTS PROJECT 39 Drumm Street San Francisco, California 94111
Linton Joaquin, Pro Hac Vice Karen C. Tumlin, Pro Hac Vice NATIONAL IMMIGRATION LAW CENTER 3435 Wilshire Boulevard, Suite 2850 Los Angeles, California 90010
Attorneys for Plaintiffs
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CERTIFICATE OF SERVICE I hereby certify that on this 4th day of January, 2012, a copy of the foregoing was filed electronically with the Clerk of this Court. The following parties will be served by operation of the Court’s electronic system: Betsy M. Isenberg Deputy Attorney General betsy.isenberg@atg.in.gov Wade Dunlap Fulford Deputy Attorney General wade.fulford@atg.in.gov Robert Howard Schafstall CUTSINGER & SHAFSTALL robhschafstall@gmail.com Lynnette Gray lynng@embarqmail.com Patricia Erdmann Deputy Attorney General patricia.erdmann@atg.in.gov Adam Clay Deputy Attorney General Adam.Clay@atg.in.gov Justin F. Roebel Assistant Corporation Counsel jroebel@indy.gov
/s/ Gavin M. Rose Gavin M. Rose Attorney at Law
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 Case 1:11-cv-00708-SEB-MJD Document 149 Filed 01/09/12 Page 1 of 14 PageID #: 1042

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION

INGRID BUQUER, BERLIN URTIZ, and )

LOUISA ADAIR, on their own behalf and )

on behalf of those similarly situated,

)

Plaintiffs,

)

)

vs.

)

)

CITY OF INDIANAPOLIS, et al.,

)

Defendants.

)

1:11-cv-0708-SEB-MJD

ORDER ON PENDING MOTIONS This matter comes before the Court on Defendants’ Motion for Leave to Amend Answer [Docket No. 102], filed October 11, 2011, pursuant to Federal Rule of Civil Procedure 15, and Defendants’ Motion to Join a Necessary Party [Docket No. 104], filed October 11, 2011, pursuant to Federal Rule of Civil Procedure 19(a). The Marion and Johnson County Prosecutors, both acting in their official capacities (“State Defendants”), have asked that the United States of America be joined as a necessary party to this action. Accordingly, they have also requested leave to amend their Answer [Docket No. 86] to add Plaintiffs’ failure to join the United States under Rule 19(a) as an affirmative defense. For the reasons detailed below, we DENY State Defendants’ Motion for Leave to Amend Answer and DENY State Defendants’ Motion to Join a Necessary Party.
Factual Background On May 25, 2011, Plaintiffs filed this lawsuit to challenge the constitutionality of the recently enacted Senate Enrolled Act 590 (SEA 590), which was adopted by the

Case 1:11-cv-00708-SEB-MJD Document 149 Filed 01/09/12 Page 2 of 14 PageID #: 1043
Indiana General Assembly and originally scheduled to take effect on July 1, 2011. Plaintiffs specifically challenged Section 201 of SEA 590, which added sections (a)(11) through (a)(13) to Indiana Code § 35-33-1-1(1). As written, Section 20 authorizes state and local law enforcement officers to make a warrantless arrest of a person if the officer has a removal order issued by an immigration court, a detainer or notice of action issued by the U.S. Department of Homeland Security, or probable cause to believe that the person has been indicted for or convicted of at least one aggravated felony. Plaintiffs also challenged Section 18 of SEA 590, which was to be codified at Indiana Code § 34-28-8.2. Section 18 makes it an infraction under Indiana law for any person other than a law enforcement officer to knowingly or intentionally offer or accept a consular identification card as a valid form of identification. The apparent purpose of such legislation was to combat difficulties that have arisen at the state and local levels because of illegal immigration. We have previously characterized this enactment as a “tortuous attempt[] to carve out legally permissible roles that do not run afoul of federal jurisdictional and constitutional requirements as well as the principles of federal preemption.” Buquer v. City of Indianapolis, 797 F. Supp. 2d 905, 910 (S.D. Ind. 2011).
The day after filing their class action complaint with this court, Plaintiffs filed a motion for preliminary injunction to have Sections 18 and 20 of SEA 590 enjoined
1Plaintiffs’ original documents indicated that they were challenging Section 19 of SEA 590. However, on August 19, 2011, the parties moved to stipulate to an amendment of the preliminary injunction order, and the Court granted this motion on August 23, 2011. Pursuant to the amended order, all previous references to Section 19 of SEA 590 are deemed to refer to Section 20 of the Act.
2

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without bond. Plaintiffs asked the Court to enjoin the State of Indiana from enforcing these provisions pending the Court’s determination of whether they violate the Fourth Amendment to the United States Constitution, principles of due process, and the principle of federal preemption for immigration matters. We heard oral arguments on the motion on June 20, 2011 and granted Plaintiffs’ motion for preliminary injunction on June 24, 2011. Following the parties’ agreement to class certification and stipulation to the same, we also certified two separate classes of plaintiffs on July 14, 2011. Defendants subsequently filed their respective answers; State Defendants filed their joint Answer on July 15, 2011.
In their Motion to Amend, State Defendants allege that “[r]ecently [they] were made aware of potential for litigation by the Department of Justice against the State of Indiana involving immigration legislation.” Defs.’ Mot. to Amend at 2. State Defendants’ concern regarding such litigation ostensibly emanates from decisions in two immigration-related lawsuits brought against the States of Alabama and Arizona by the United States in 2011. Id. at 3. Both of these actions involved state statutes much like Indiana’s SEA 590 and have generated significant public interest. See United States v. Arizona, 641 F.3d 339 (9th Cir. 2011), cert. granted, Arizona v. United States, – S. Ct. —, 2011 WL 3556224 (Dec. 12, 2011); United States v. State, No. 2:11-cv-2746-SLB, 2011 WL 4469941 (N.D. Ala. Sept. 28, 2011). Perhaps anticipating a similar lawsuit in this jurisdiction, State Defendants now ask the Court for leave to add the following defense to their answer: “The Plaintiffs have failed to join a party necessary for a just adjudication
3

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and complete relief, the United States of America.” Defs.’ Mot. to Amend at 2. They also seek joinder of the United States as a necessary party, arguing that “a decision enjoining the [State] Defendants may result in inconsistent obligations or results based on the United States’ position on immigration law.” Defs.’ Mot. to Join at 4. Plaintiffs rejoin that the circumstances of this case do not warrant involuntary joinder of the United States and that State Defendants’ justification for joinder is purely speculative. Pls.’ Resp. at 2. Additionally, the United States as interested party opposes State Defendants’ motion to join a necessary party, arguing that (1) the United States is not a required party; (2) joinder of the United States would not be feasible even if it were a required party; and (3) in any event, sovereign immunity precludes joinder of the United States in this action. U.S.’s Resp. at 2.
Legal Analysis I. Standard of Review
Amending the pleadings in a lawsuit is governed by Federal Rule of Civil Procedure 15. Specifically, Rule 15(a) vests in the district court discretion when deciding whether to grant a motion to amend a pleading to add a party, claim, or defense. Krupski v. Costa Crociere S.p.A., 130 S. Ct. 2485, 2496 (2010). After a party’s opportunity to amend a pleading “as a matter of course” expires, that party may only amend its pleading with the consent of the opposing party or the court’s leave. The court “should freely give leave when justice so requires.” Fed. R. Civ. P. 15(a)(2). Nevertheless, the court may deny leave to amend “where there is undue delay, bad faith, dilatory motive, repeated
4

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failure to cure deficiencies, undue prejudice to the defendants, or where the amendment would be futile.” Arreola v. Godinez, 546 F.3d 788, 796 (7th Cir. 2008).
Rule 19 provides the controlling standard for joinder in a civil lawsuit. Under this rule, an entity is a required party to an action if the court could not accord complete relief in that entity’s absence. Fed. R. Civ. P. 19(a)(1)(A). Alternatively, an entity must be joined under Rule 19 if it claims an interest related to the subject matter of the action and “is so situated that disposing of the action in the person’s absence may . . . impair or impede the person’s ability to protect the interest; or leave an existing party subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations.” Fed. R. Civ. P. 19(a)(1)(B). As a practical matter, this rule “protect[s] interested parties and avoid[s] waste of judicial resources.” Askew v. Sheriff of Cook Cnty., 568 F.3d 632, 634 (7th Cir. 2009). Applying Rule 19 is a matter properly entrusted to the district court because it turns on the unique facts of each case. United States ex rel. Hall v. Tribal Dev. Corp., 49 F.3d 1208, 1216 (7th Cir. 1995) (Flaum, J., concurring). II. Discussion A. Motion to Join the United States as Necessary Party
Because Defendants’ Motion to Amend hinges on the question of whether the United States is even a necessary party under Rule 19, we first address Defendants’ Motion to Join. Rule 19(a), titled “Person Required to Be Joined if Feasible,” provides, in relevant part, as follows:
(1) Required Party. A person who is subject to service of process and whose 5

Case 1:11-cv-00708-SEB-MJD Document 149 Filed 01/09/12 Page 6 of 14 PageID #: 1047
joinder will not deprive the court of subject-matter jurisdiction must be joined as a party if:
(A) in that person’s absence, the court cannot accord complete relief among existing parties; or (B) that person claims an interest relating to the subject of the action and is so situated that disposing of the action in the person’s absence may:
(I) as a practical matter impair or impede the person’s ability to protect the interest; or (ii) leave an existing party subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations because of the interest.
Fed. R. Civ. P. 19(a)(1). State Defendants’ arguments center around subsection
(a)(1)(B)(ii) of this rule––namely, that in light of the United States’ interest in
immigration law and “unnecessary risks” of divergent outcomes in future lawsuits, the
United States is a “required party” to this action.
Rule 19(a)(1)(B) requires that the United States have an “interest relating to the
subject matter” of the action. “The general policy of [this rule] . . . is ‘toward entertaining
the broadest scope of action consistent with fairness to the parties; joinder of claims,
parties, and remedies is strongly favored.’” Showtime Game Brokers, Inc. v. Blockbuster
Video, Inc., 151 F.R.D. 641, 646 (S.D. Ind. 1993) (quoting Mayer Paving & Gen.
Dynamics Corp., 486 F.2d 763, 771 (7th Cir. 1973)). Decisions within our circuit, while
noting the “striking paucity of analysis” focusing on the scope of “subject matter” and
“interest,” provide persuasive authority that an absent party “with a legally protected
interest in the subject matter of the action” satisfies Rule 19(a)(1)(B). See Florian v.
Sequa Corp., No. 98-c-7459, 2002 WL 31844985, at *6 (N.D. Ill. Dec. 18, 2002); Burger
King Corp. v. Am. Nat’l Bank & Trust Co. of Chi., 119 F.R.D. 672, 675-76 (N.D. Ill.
6

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1988). Defendants argue, and the United States does not contest, that the United States has an interest related to immigration. Our Constitution vests the federal government––and, in particular, Congress––with plenary power to make rules regarding naturalization of its citizens. U.S. Const. Art. I, § 8, cl. 4. Congress has implemented this power by enacting the Immigration and Nationality Act, 8 U.S.C. § 1101 et seq., to govern naturalization, legal immigration, deportation of illegal aliens, and enforcement of these procedures. We therefore concur with State Defendants that “the United States clearly has an interest and responsibility in the subject matter of this case.” Defs.’ Mot. to Join at 5.
At the same time, however, we must acknowledge that our analysis under Rule 19(a) does not end at this juncture. Rule 19(a)(1)(B)’s two subparts require that in addition to having an interest relating to the subject matter of the action, the interested party’s absence must either (I) impair or impede that party’s ability to protect its interest or (ii) subject any existing party to “a substantial risk of incurring double, multiple, or otherwise inconsistent obligations” by reason of his claimed interest. Fed. R. Civ. P. 19(a)(1)(B)(I)-(ii). State Defendants allege that “the potential for subsequent litigation by the United States” renders the United States an interested party that satisfies Rule 19(a)(1)(B)(ii). Defs.’ Mot. to Join at 5. Citing recent lawsuits the United States has brought against the States of Alabama and Arizona, State Defendants contend that the risk of analogous litigation in Indiana is not only greater than speculative, but considerable enough to constitute a “substantial risk” of “inconsistent obligations.” We disagree.
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Instead of providing concrete examples of exactly how they may be subject to inconsistent outcomes without joinder of the United States, State Defendants assert more generally that Plaintiffs may be “permitted to put forth their interpretation of federal law regarding immigration without hearing from the United States government itself.” Defs.’ Mot. to Join at 5. They also suggest that State Defendants may at some point “be required to determine which decision to follow” in the event of “additional or substantial litigation by the United States.” Id. We are more than a bit dismayed by the gaping assumptions implicit in this argument. Notable among these is the assumption that the United States will affirmatively pursue a claim against the State of Indiana. State Defendants’ lone piece of support for this potential event––an August press release issued by the Department of Justice in which the Attorney General declared only that the United States is prepared to bring suit––falls far short of demonstrating a “substantial risk.” Further, State Defendants’ argument ostensibly assumes that if the United States does pursue such an action, it will yield different interpretations of the exact same sections of SEA 590 being challenged in the instant litigation. The evidence presently before us does not indicate that the risk of this scenario is anything but remote; it is certainly not “substantial.” We also note that such a remote result could be remedied by consolidation of all actions challenging SEA 590, as Local Rule 42-1 permits.
Moreover, even if we entertain these assumptions, we must conclude as well that State Defendants’ interpretation of Rule 19(a)(1)(B)(ii) misses the mark. Existing case law has indicated time and again that “inconsistent obligations” are distinct from
8

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inconsistent adjudications or results, which lie outside the scope of the rule. “Inconsistent obligations occur when a party is unable to comply with one court’s order without breaching another court’s order concerning the same incident.” Grubb & Ellis Co. v. Huntington Hoffman, LLC, No. 10-cv-5068, 2010 WL 4962846, at *3 (N.D. Ill. Dec. 1, 2010) (quoting Delgado v. Plaza Las Americas, 139 F.3d 1, 3 (1st Cir. 1998)). The concept of inconsistent adjudications or results, by contrast, contemplates “a defendant [who] successfully defends a claim in one forum, yet loses on another claim arising from the same incident in another forum.” Delgado, 139 F.3d at 3 (citing Nat’l Union Fire Ins. Co. v. Mass. Mun. Wholesale Elec. Co., 117 F.R.D. 321, 322 (D. Mass. 1987)). Courts around the country have previously concluded, as we do today, that a threat of multiple litigations does not necessarily implicate this subsection of Rule 19(a). See, e.g., Cachil Dehe Band of Wintun Indians v. California, 547 F.3d 962, 976 (9th Cir. 2008) (adopting Delgado’s holding); Boone v. Gen. Motors Acceptance Corp., 682 F.2d 552, 554 (5th Cir. 1982); Field v. Volkswagenwerk AG, 626 F.2d 293, 301-02 (3d Cir. 1980); Am. Ins. Co. v. St. Jude Med., Inc., 597 F. Supp. 2d 973, 978 (D. Minn. 2009); Sykes v. Hengel, 220 F.R.D. 593, 597 (S.D. Iowa 2004); RPR & Assocs. v. O’Brien/Atkins Assocs., 921 F. Supp. 1457, 1464 (M.D.N.C. 1995) (“Rule 19 is not triggered by the possibility of a subsequent adjudication that may result in a judgment that is inconsistent as a matter of logic.”); 4 MOORE ET AL., MOORE’S FEDERAL PRACTICE–CIVIL § 19.03(4)(d) (2008); see also J.G.B. Enters. v. United States, 57 Fed. Cl. 415, 417 (Fed. Cl. 2003) (noting that the rule “does not mandate that all claims relating to an action be resolved in one
9

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proceeding”). Because of the ease of consolidating any potential future suits or bringing them in
this same court, we fail to see how State Defendants might ultimately be forced to breach one court’s order to comply with another. We remain mindful that “[b]oth the Supreme Court and [the Seventh Circuit] have emphasized that the analysis under th[is] rule should be directed to the practical and not the theoretical,” Morgan Guar. Trust Co. of N.Y. v. Martin, 466 F.2d 593, 598 (7th Cir. 1972), and thus, we deny that Rule 19(a)(1)(B)(ii) is relevant to the instant case. Accordingly, we conclude that the United States is not a party that must be joined, if feasible, within the meaning of Rule 19. No inquiry into Rule 19(b) need follow because the threshold requirements of Rule 19(a) have not been met. Temple v. Synthes Corp., 498 U.S. 5, 8 (1990).2 B. Motion to Amend Pleadings
We acknowledged above that courts should freely grant leave to amend pleadings “when justice so requires.” Fed. R. Civ. P. 15(a)(2). Even though “the rule reflects a liberal attitude towards the amendment of pleadings,” Leathermon v. Grandview Mem’l Gardens, Inc., No. 4:07-cv-137-SEB-WGH, 2011 WL 2445980, at *1 (S.D. Ind. June 15, 2011), we retain discretion to deny such amendment “if the pleading is futile.” Campania Mgmt. Co. v. Rooks, Pitts & Poust, 290 F.3d 843, 849 (7th Cir. 2002). Here, State
2We will not address State Defendants’ request to dismiss this action pursuant to 12(b)(7), which appears for the first time in State Defendants’ Reply Brief. A motion asserting any of the Rule 12(b) defenses “must be made before pleading if a responsive pleading is allowed.” Fed. R. Civ. P. 12(b).
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Defendants have asked the Court for permission to add what would plainly be a Rule 12(b)(7) defense: failure to join the United States as a necessary party under Rule 19. Having concluded above that the United States is not a “necessary party” to this litigation within the meaning of Rule 19, we must deem the addition of this defense futile. We therefore now deny this motion as moot.
CONCLUSION Based on the foregoing analysis, we DENY State Defendants’ Motion to Join a Necessary Party. In accordance with this denial, we also DENY State Defendants’ Motion for Leave to Amend Answer. IT IS SO ORDERED. Date: _____0_1_/_09_/_2_0_1_2________________
_______________________________ SARAH EVANS BARKER, JUDGE United States District Court Southern District of Indiana
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Copies to:
Angela Denise Adams LEWIS & KAPPES aadams@lewis-kappes.com
Scott Leroy Barnhart INDIANA OFFICE OF THE ATTORNEY GENERAL scott.barnhart@atg.in.gov
William W. Barrett WILLIAMS HEWITT BARRETT & WILKOWSKI LLP wbarrett@wbwlawyers.com
Jose J. Behar HUGHES SOCOL PIERS RESNICK & DYM, LTD. jbehar@hsplegal.com
Shiu-Ming Cheer NATIONAL IMMIGRATION LAW CENTER cheer@nilc.org
Adam Clay INDIANA ATTORNEY GENERAL Adam.Clay@atg.in.gov
Katherine Desormeau AMERICAN CIVIL LIBERTIES UNION FOUNDATION kdesormeau@aclu.org
Patricia Orloff Erdmann OFFICE OF THE ATTORNEY GENERAL Patricia.Erdmann@atg.in.gov
Kenneth J. Falk ACLU OF INDIANA kfalk@aclu-in.org
Jefferson S. Garn
12

Case 1:11-cv-00708-SEB-MJD Document 149 Filed 01/09/12 Page 13 of 14 PageID #: 1054
INDIANA ATTORNEY GENERAL jefferson.garn@atg.in.gov
Lee Gelernt AMERICAN CIVIL LIBERTIES UNION FOUNDATION lgelernt@aclu.org
Lynette Gray JOHNSON GRAY & MaABEE 63 E. Court Franklin, IN 46131
Lynnette Gray JOHNSON GRAY& MACABEE vhunter@embarqmail.com
Betsy M. Isenberg INDIANA OFFICE OF THE ATTORNEY GENERAL Betsy.Isenberg@atg.in.gov
Omar C. Jadwat AMERICAN CIVIL LIBERTIES UNION FOUNDATION ojadwat@aclu.org
Linton Joaquin National Immigration Law Center joaquin@nilc.org
Jill Z. Julian UNITED STATES ATTORNEY'S OFFICE jill.julian@usdoj.gov
Joshua Karsh HUGHES SOCOL PIERS RESNICK & DYM, LTD. jkarsh@hsplegal.com
Matthew J. Piers HUGHES SOCOL PIERS RESNICK & DYM, LTD mpiers@hsplegal.com
Clifford Lee Reeves II
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U.S. DEPARTMENT OF JUSTICE lee.reeves@usdoj.gov Justin F. Roebel CITY OF INDIANAPOLIS, OFFICE OF CORPORATION COUNSEL jroebel@indygov.org Gavin Minor Rose ACLU OF INDIANA grose@aclu-in.org Andre I. Segura AMERICAN CIVIL LIBERTIES UNION FOUNDATION asegura@aclu.org Karen Tumlin NATIONAL IMMIGRATION LAW CENTER tumlin@nilc.org Cecillia D. Wang AMERICAN CIVIL LIBERTIES UNION FOUNDATION cwang@aclu.org
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 Case 1:11-cv-00708-SEB-MJD Document 152 Filed 01/23/12 Page 1 of 6 PageID #: 1064

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION

INGRID BUQUER, et al., Plaintiffs, v.
THE CITY OF INDIANAPOLIS, et al., Defendants.

) ) ) ) ) Cause No.: 1:11-cv-0708-SEB-MJD ) ) ) )

Defendant City of Indianapolis’s Reply in Support of its Cross-Motion for Summary Judgment Without citation to even a remotely analogous case, Plaintiffs argue that the City can face pecuniary liability for the mere possibility that it could choose to follow a non-mandatory state law—a law which never went into effect. While ostensibly relying on the Seventh Circuit’s holding in Bethesda Lutheran Homes and Services, Inc., Plaintiffs ignore that decision’s requirement that municipal liability under Section 1983 necessitates “a deliberate choice to follow a course of action.” Plaintiffs’ theory of liability—that the City had an opportunity to prospectively violate the Constitution pursuant to a state law and the City did not affirmatively disavow that opportunity—is not a valid legal theory because no “deliberate choice” was made by the City. Furthermore, there is no reason to presume that Plaintiffs faced the possibility of arrest by City of Indianapolis officers but for the present proceedings. The City of Indianapolis has an explicit policy enumerating when its officers may arrest individuals and the challenged provisions of Indiana’s Immigration Act are not among those enumerated reasons. With regard to the consular identification, there is not even a risk of arrest as Indiana Code section 34-28-8.2-

1

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2 does not criminalize use of consular identification, but only imposes an infraction. The City’s policies do not allow officers to arrest for infractions. Finally, Plaintiffs have ample opportunities to challenge a state statute without harming the pocketbook of an innocent municipality who did not promulgate the law, did not enforce the law, and did not take any actions authorized by the law.
Statement of Additional Material Facts Not in Dispute with Regard to Defendant City of Indianapolis’s Cross-Motion for Summary Judgment The City has a policy setting out the reasons for which its officers may arrest individuals and the challenged provisions of Indiana’s Immigration Act are not among those reasons. (Ex. A, IMPD General Order 1.11.) With regard to the consular identification, City policy would not allow an arrest because Indiana Code section 34-28-8.2-2 does not criminalize use of consular identification, but only imposes an infraction. The City has a written policy stating its officers may not arrest for infractions. (Ex. B, IMPD General Order 7.5.)
Argument A. Summary Judgment for the City of Indianapolis Is Appropriate Because
Plaintiffs Have No Evidence of a Deliberate Municipal Policy. Plaintiffs erroneously argue that municipal liability can accrue because the challenged state laws were not mandatory and left the City with the choice to violate the Constitution. However, it is clear from Bethesda Lutheran Homes & Servs. v. Leean, 154 F.3d 716 (7th Cir. 1998)—the chief case relied upon by Plaintiffs in challenging summary judgment—that the existence of a possible course of action which would be in violation is not sufficient to create municipal liability. Instead, “‘[m]unicipal liability under § 1983 attaches where—and only where—a deliberate choice to follow a course of action is made from among various
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alternatives.’” Id. at 718-19 (emphasis added) (quoting Pembaur v. City of Cincinnati, 475 U.S. 469, 483 (1986) (plurality opinion)). Without citation to authority, Plaintiffs ask this Court to nullify the requirement of a deliberate choice to establish a Monell claim.
The other cases cited by Plaintiffs notably do not make the same mistake. Instead, each case analyzing municipal liability for discretionary state laws looks at whether the municipality made the conscious or deliberate choice to enforce an unconstitutional statute. See Vives v. City of New York, 524 F.3d 346, 353 (2nd Cir. 2008); Garner v. Memphis Police Dept., 8 F.3d 358, 364 (6th Cir. 1993); Lederman v. U.S., 2007 WL 1114137, *3 (D.D.C. 2007) (“not obligated to adopt the statute as its own”). In Vives, the Second Circuit held “there must [be] conscious decision making by the City's policymakers before the City can be held to have made a conscious choice.” Vives, 524 F.3d at 353. Similarly, in Garner, the Sixth Circuit found municipal liability could attach because the city made a “deliberate choice from among various alternatives[.]” Garner, 8 F.3d at 364.
Here, Plaintiffs have presented no evidence that the City of Indianapolis has made a conscious choice to make arrests under, or otherwise follow, the challenged portions of Senate Enrolled Act 590. Under Rule 56, summary judgment is the “put up or shut up” moment in litigation. Goodman v. National Sec. Agency, Inc., 621 F.3d 651, 654 (7th Cir. 2010). As such, Plaintiffs are now required to present evidence which a reasonable jury could rely on to prove his claim. Delapaz v. Richardson, 634 F.3d 895, 900 (7th Cir. 2010). As the challenged statutes were enjoined prior to their effective date, Plaintiffs cannot meet this burden as the City has not even had the opportunity to make that choice. (Dkt. 79.) Since there is no evidence of a deliberate choice, summary judgment for the City of Indianapolis is appropriate. See Vives, 524 F.3d at 353.
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Alternatively, Plaintiffs attempt in a footnote to invoke the “widespread practice” method of establishing a Monell claim by arguing that the City is presumed to enforce all state laws and that presumption creates a custom. (Response at 8-9.) However, there is simply no logic to their argument that a “widespread practice” can exist prospectively, particularly based on a state statute which Plaintiffs argue is not binding upon municipal police officers. Regardless, the same essential argument was rejected by the Second Circuit in Vives. Vives, 524 F.3d at 353. There, the court observed “[w]e do not believe a mere municipal directive to enforce all state and municipal laws constitutes a city policy to enforce a particular unconstitutional statute.” Id.
Moreover, City of Indianapolis’ policies unambiguously prohibit any arrest under the challenged portions of Senate Enrolled Act 590. The City has an explicit policy enumerating when its officers may arrest individuals, and the challenged provisions of Indiana’s Immigration Act are not among those enumerated reasons. (IMPD General Order 1.11.) Each of those enumerated bases requires officers to have probable cause to believe a crime has occurred. (Id.) With regard to the consular identification, there is also no risk of arrest—Plaintiffs’ present basis for standing—because Indiana Code section 34-28-8.2-2 does not criminalize use of consular identification, but only imposes an infraction. The City has an explicit policy stating its officers may not arrest for infractions. (IMPD General Order 7.5.) Under that policy, “[a]n outright arrest may never be made for state infractions or local ordinance violations.” (Id.) Thus, there is not even a plausible presumption that Plaintiffs could be subject to arrest by a deliberate choice of the City.
Finally, Plaintiffs attempt to raise false alarms by asserting that the City’s defense would make it impossible to challenge state statutes enforced by municipalities. However, there is no shortage of individuals who could potentially enforce the challenged laws, including the state’s
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own law enforcement division. Plaintiffs also wrongly assert that the City’s argument would require Plaintiffs to sue “every single law enforcement officer in the municipality (in their official capacities[].)” (Response at 7.) However, official capacity claims would fail for the same reason that Plaintiffs’ municipal claim is invalid. See Pourghoraishi v. Flying J, Inc., 449 F.3d 751, 765 (7th Cir. 2006). “When a plaintiff sues an individual officer in his official capacity, the suit is treated as if the plaintiff has sued the municipality itself.” Id.
Conclusion The City of Indianapolis respectfully asks that this Court enter summary judgment in its favor because Plaintiffs have no evidence of an unconstitutional municipal custom, policy, or practice.
Respectfully Submitted, s/ Justin F. Roebel_____________________ Justin F. Roebel (23725-49) Assistant Corporation Counsel OFFICE OF CORPORATION COUNSEL 200 East Washington Street, Room 1601 Indianapolis, Indiana 46204 Telephone: (317) 327-4055 Fax: (317) 327-3968 E-Mail: jroebel@indygov.org Counsel for Defendant City of Indianapolis
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CERTIFICATE OF SERVICE I hereby certify that on January 23, 2012, a copy of the foregoing served by electronic filing. Notice of this filing will be sent to the following parties by operation of the Court’s electronic filing system Parties may access this filing through the Court’s system.

Angela Denise Adams LEWIS & KAPPES One American Square, Suite 2500 Indianapolis, IN 46282
Kenneth J. Falk Jan P. Mensz Gavin Rose ACLU of Indiana 1031 E. Washington Street Indianapolis, IN 46202
Karen Tumlin Linton Joaquin Shiu-Ming Cheer National Immigration Law Center 3465 Whilshire Boulevard, Ste 2850 Los Angeles, CA 90010
Matthew J. Piers Jose J. Behar Johsua Karsh HUGHES SOCAL 70 Madison St. Suite 4000 Chicago, IL 60602

Adam Clay Betsy M. Isenberg Scott Leroy Barnhart Patricia Orloff Erdmann INDIANA ATTORNEY GENERAL 302 West Washington Street, Indiana Government Center South Fifth Floor Indianapolis, IN 46204
Lynnette Gray JOHNSON GRAY & MacABEE 63 E. Court St. Franklin, IN 46131
William W. Barrett WILLIAMS BARRETT & WILKOWSKI, LLP 600 N. Emerson Ave. P.O. Box 405 Greenwood, IN 46142

OFFICE OF CORPORATION COUNSEL 200 East Washington Street, Room 1601 Indianapolis, Indiana 46204 Telephone: (317) 327-4055 Fax: (317) 327-3968

s/ Justin F. Roebel___________ Justin F. Roebel (23725-49) Assistant Corporation Counsel
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 Case 1:11-cv-00708-SEB-MJD Document 159 Filed 01/30/12 Page 1 of 9 PageID #: 1093

IN THE UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION

INGRID BUQUER, et al., Plaintiffs, v.
CITY OF INDIANAPOLIS, et al., Defendants.

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No. 1:11-cv-0708 SEB-MJD

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PLAINTIFFS' SURREPLY IN OPPOSITION TO CITY'S CROSS-MOTION FOR SUMMARY JUDGMENT

INTRODUCTION

In its reply brief supporting its cross-motion for summary judgment (“City’s Reply Br.”)

(ECF No. 152), the City of Indianapolis (“City”) relies on two (2) City policies that were not

previously filed or cited to the Court (ECF Nos. 153-1 & 153-2)—and thus that could not have

been addressed by the plaintiffs in initially opposing the City’s Cross-Motion for Summary

Judgment (ECF No. 137). Under these circumstances, Rule 56.1(d) of this Court’s local rules

permits the plaintiffs to “file a surreply brief . . . within 7 days after movant serves the reply,”

although the surreply brief “must be limited to the new evidence.” S.D. IND. L.R. 56-1(d). As

the Seventh Circuit has held, in construing this rule, “leave of court is not required to file such a surreply.” Bell v. DaimlerChrysler Corp., 547 F.3d 796, 806 (7th Cir. 2008).1 The City’s

reliance on its own belatedly submitted policies serves not to excuse it from municipal liability

under Monell v. Department of Social Services, 436 U.S. 658, 694 (1978), but rather to

1

Although this Court’s local rules have been amended since the Seventh Circuit’s decision

in Bell, Local Rule 56-1(d) has been altered only cosmetically.

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underscore its discretionary choice to enforce the state laws that are challenged in this case. This

short surreply brief addresses the import of these policies.

ISSUES CONCERNING THE FACTS

I.

THE CITY’S STATEMENT OF ADDITIONAL FACTS NOT IN DISPUTE

In the City’s reply brief, the City alleges additional material undisputed facts that were

not alleged previously (City’s Reply Br., at 2). The plaintiffs do not dispute any of the City’s

additional allegations.

II.

THE PLAINTIFFS’ STATEMENT OF ADDITIONAL FACTS NOT IN DISPUTE

The plaintiffs are not providing any additional evidentiary support in opposition to the

City’s Cross-Motion for Summary Judgment (or in support of their own Motion for Summary

Judgment) that was not previously filed with the Court. However, the plaintiffs designate a more

detailed account of the City’s policies than did the City, and the following facts concerning these

policies are thus material and undisputed:

General Order 1.11: IMPD General Order 1.11 (“General Order 1.11”) (ECF No. 153-

1) was last modified on February 3, 2011 (ECF No. 153-1, at 2). Under the heading “Arrest

With and Without a Warrant,” General Order 1.11 contains the following language in bold-type:

NOTE: The rules of arrest are perpetually under review by the courts. It is incumbent upon members of the department to maintain a contemporary understanding of the laws of arrest in order to fulfill the obligations and mission of the department.

(ECF No. 153-1, at 2). Then, under the sub-heading “Warrantless Arrest,” General Order 1.11

indicates that a law enforcement officer may arrest a person for any of the reasons enumerated in

Indiana Code § 35-33-1-1(a), with the exception of the three (3) arrest provisions that are

challenged in this case (Indiana Code § 35-33-1-1(a)(11)–(13)). (Compare ECF No. 153-1, at 2–

3 with IND. CODE § 35-33-1-1(a)). In other words, General Order 1.11 permits officers employed

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by the City to arrest individuals for all reasons allowed by Indiana law that were in effect at the

time that General Order 1.11 was created.

General Order 7.5: IMPD General Order 7.5 (“General Order 7.5”) (ECF No. 153-2)

has an effective date of January 1, 2007 (ECF No. 153-2, at 2). Pursuant to General Order 7.5,

officers employed by the City are given discretion to issue a ticket to persons who are alleged to

have committed state infractions (ECF No. 153-2, at 3). At that time, alleged violators will be

asked to sign the back of the ticket and the officer will establish the individual’s identity—either

through identification carried by the person or through a thumb print (id.).

ARGUMENT

I.

INTRODUCTION

As indicated previously, the Seventh Circuit in Bethesda Lutheran Homes & Services, Inc. v. Leean, 154 F.3d 716 (7th Cir. 1998), held that a municipality may be held liable for the

enforcement of state law when it is afforded discretion to enforce (or not enforce) that law (ECF

No. 145, at 2–5). The City does not dispute this fundamental point, instead highlighting the

principle—undisputed by the plaintiffs—that municipalities may only be held liable for their

“deliberate choices” (City’s Reply Br., at 1–3). The City’s argument that it may not be held

liable under Bethesda Lutheran, however, is without merit for two (2) reasons. First, it

erroneously confuses the inquiry under Monell’s “practice or policy” requirement with the

ripeness inquiry previously rejected by this Court. This issue was previously addressed by the

plaintiffs and will not be reiterated herein (see ECF No. 145, at 5–7). And second, the City’s

own policies evince the discretionary nature of the state laws that are challenged in this case, and

thus the City’s deliberate choice to enforce these laws.

II.

THE IMPORT OF THE CITY’S POLICIES

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As indicated above, the City attached to its reply brief two (2) general orders of the Indianapolis Metropolitan Police Department. These orders doubtless constitute municipal policy for which the City may be held liable, see, e.g., Monell, 436 U.S. at 690 (municipal liability may attach when “the action that is alleged to be unconstitutional implements or executes a policy statement”), and the City does not argue to the contrary. Rather, the City argues that these policies “unambiguously prohibit any arrest under the challenged portions of Senate Enrolled Act 590 [‘SEA 590’].” City’s Reply Br., at 4. This is not so with respect to either policy.
A. General Order 1.11 The City argues that General Order 1.11 is explicit in “enumerating when its officers may arrest individuals, and the challenged provisions of Indiana’s Immigration Act are not among the enumerated reasons.” Id. What the City does not mention, however, is that this policy was last modified in February of 2011—before SEA 590 was passed or took effect—and the policy permits officers employed by the City to arrest a person for any reason provided by the thencurrent version of Indiana Code § 35-33-1-1(a). This, of course, is owing entirely to the fact that this Court enjoined the enforcement of Indiana Code § 35-33-1-1(a)(11)–(13)—the statutory provisions challenged in this case—before they took effect, and the City thus had no opportunity to update its policies to account for these new provisions (and, indeed, was prohibited from doing so by this Court’s preliminary injunction). Moreover, the policy itself is explicit that it is not the last word on when an officer employed by the City may make arrests: it encourages “members of the department [IMPD] to maintain a contemporary understanding of the laws of arrest in order to fulfill the obligations and mission of the department” (ECF No. 153-1, at 2).
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The City nonetheless asserts that this policy “unambiguously prohibit[s] any arrest under the challenged portions of Senate Enrolled Act 590.” City Reply Br., at 4. This is simply not so, for the policy makes no mention whatsoever of these provisions (it having been drafted prior to their enactment). As the plaintiffs have previously noted, were the City to come forward with and expressly disavow any intention to enforce the challenged provisions, take all reasonable steps necessary to ensure that its officers and employees abide by this dictate, and provide assurances that the City will not revert to enforcing the challenged provisions following this litigation (lest it be susceptible to the “voluntary cessation” doctrine), the City could be dismissed from this case (ECF No. 145, at 7). This is the conclusion that this Court reached in issuing its preliminary injunction, see Buquer v. City of Indianapolis, 797 F. Supp. 2d 905, 917 (S.D. Ind. 2011), and the City has presented no reason to revisit that holding. The City may be held liable unless and until it “indicate[s] affirmatively that it will not enforce the statute.” Id. This it has not done.
B. General Order 7.5 Next, the City relies on General Order 7.5 to argue that it “has an explicit policy stating its officers may not arrest for infractions.” City’s Reply Br., at 4. This is true, but it is also irrelevant. The plaintiffs have not raised a Fourth Amendment claim with respect to Indiana Code § 34-28-8.2-1, et seq.—which does not create a criminal penalty but rather creates a civil infraction—but have instead argued that the prohibition on the use of consular identification cards is preempted by federal law and international treaties and is irrational in violation of the Fourteenth Amendment. Pursuant to City policy, in enforcing this statute police officers will issue tickets instead of making arrests, but the fact that enforcement looks different than it does for a criminal statute does not relieve the City of liability. In their complaint, the plaintiffs asked
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this Court to simply “enjoin[] the defendants from enforcing the challenged provisions of SEA 590” (ECF No. 1, at 18). The City may be ordered to refrain from issuing tickets to persons for allegedly violating the consular identification provisions of SEA 590 even if it does not formally arrest persons who commit a civil infraction.
Indeed, as indicated above, General Order 7.5 itself affords officers employed by the City discretion to issue a ticket to persons who are alleged to have committed state infractions (ECF No. 153-2, at 3). Rather than relieving the City from liability under Monell, this policy underscores the discretionary nature of enforcement of Indiana law. As noted previously, this more than suffices to render the City liable for its enforcement of Indiana Code § 34-28-8.2-1, et seq. III. GENERALIZED ENFORCEMENT OF STATE LAWS
Finally, based on its belatedly submitted policies, the City argues—relying on the Second Circuit’s decision in Vives v. City of New York, 524 F.3d 346 (2d Cir. 2008)—that a generalized municipal directive to enforce all state laws does not constitute a policy for which the City may be held liable. See City’s Reply Br., at 4. The Vives court, however, focused on the precise issue highlighted by the Seventh Circuit and the plaintiffs as controlling: whether municipal officials have discretion to enforce—or not enforce—state law. See 524 F.3d at 354–55 (describing the controlling issue as “whether the Police Department’s policy makers can instruct its officers not to enforce a given section—or portion thereof—of the penal law”). In the present case, there is no doubt that the City has this discretion (see ECF No. 145, at 5–7). As such, it may be held liable.2

2

The City argues that the cases previously cited by the plaintiffs “analyzing municipal

liability for discretionary state laws look[] at whether the municipality made the conscious or

deliberate choice to enforce an unconstitutional statute.” City’s Reply Br., at 3. Of course, the

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CONCLUSION
For the foregoing reasons, as well as those stated previously, the City’s Cross-Motion for
Summary Judgment must be denied.
/s/ Gavin M. Rose Gavin M. Rose No. 26565-53 Kenneth J. Falk No. 6777-49 ACLU of Indiana 1031 E. Washington St. Indianapolis, IN 46202 317/635-4059 fax: 317/635-4105 kfalk@aclu-in.org grose@aclu-in.org
Angela D. Adams No. 24959-49 LEWIS & KAPPES, P.C. One America Tower, Suite 2500 Indianapolis, IN 46282-0003
Lee Gelernt, Pro Hac Vice Omar C. Jadwat, Pro Hac Vice Andre I. Segura, Pro Hac Vice AMERICAN CIVIL LIBERTIES UNION FOUNDATION IMMIGRANTS’ RIGHTS PROJECT 125 Broad Street, 18th Floor New York, New York 10004
reason this is so is that—with the exception of Vives, where the plaintiff sought both damages and prospective relief, see 524 F.3d at 349—each of these cases was exclusively a damages case wherein the previous enforcement of the allegedly unconstitutional statutes was necessary for the plaintiff to have standing. See, e.g., Garner v. Memphis Police Dep’t, 8 F.3d 358, 360 (6th Cir. 1993) (wrongful death action under 42 U.S.C. § 1983); Lederman v. United States, No. 99-3359, 2007 WL 1114137, at *1 (D.D.C. Apr. 13, 2007) (damages action under 42 U.S.C. § 1983 based on allegedly unconstitutional prosecution).
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Cecillia D. Wang, Pro Hac Vice Katherine Desormeau, Pro Hac Vice AMERICAN CIVIL LIBERTIES UNION FOUNDATION IMMIGRANTS’ RIGHTS PROJECT 39 Drumm Street San Francisco, California 94111 Linton Joaquin, Pro Hac Vice Karen C. Tumlin, Pro Hac Vice Shiu-Ming Cheer, Pro Hac Vice NATIONAL IMMIGRATION LAW CENTER 3435 Wilshire Boulevard, Suite 2850 Los Angeles, California 90010 Attorneys for Plaintiffs
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CERTIFICATE OF SERVICE
I hereby certify that on this 30th day of January, 2012, a copy of the foregoing was filed electronically with the Clerk of this Court. The following parties will be served by operation of the Court’s electronic system:
Betsy M. Isenberg Deputy Attorney General betsy.isenberg@atg.in.gov
Wade Dunlap Fulford Deputy Attorney General wade.fulford@atg.in.gov
Robert Howard Schafstall CUTSINGER & SHAFSTALL robhschafstall@gmail.com
Lynnette Gray lynng@embarqmail.com
Patricia Erdmann Deputy Attorney General patricia.erdmann@atg.in.gov
Adam Clay Deputy Attorney General Adam.Clay@atg.in.gov
Justin F. Roebel Assistant Corporation Counsel jroebel@indy.gov
Alexander Will Assistant Corporation Counsel alex.will@indy.gov
/s/ Gavin M. Rose Gavin M. Rose Attorney at Law
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 Case 1:11-cv-00708-SEB-MJD Document 172 Filed 04/09/12 Page 1 of 35 PageID #: 1161

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION

INGRID BUQUER, et al., Plaintiffs, v.
CITY OF INDIANAPOLIS, et al., Defendants.

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Cause No. 1:11-cv-0708-SEB-MJD

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RESPONSE IN OPPOSITION TO PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT

Defendants Marion County Prosecutor in his official capacity and Johnson County

Prosecutor in his official capacity (hereinafter “Defendants”), by counsel, respectfully submit

this response in opposition to Plaintiffs’ Motion for Summary Judgment. F or the reasons set

forth below, Defendants respectfully request the Court deny the Plaintiffs’ Motion for Summary

Judgment and enter judgment in favor of Defendants.

In support of this response, Defendants designate the following:

a. Excerpts of the Deposition of Ingrid Buquer with supporting exhibits;

b. Excerpts of the Deposition of Berlin Urtiz with supporting exhibits;

c. Excerpts of the Deposition of Louisa Adair;

d. Excerpts of the Deposition of Sergio Aguilera;

e. Declaration of Brian Gensel;

f. Declaration of Ronald Leffler;

g. Immigration and Customs Enforcement Documents from FOIA request;

h. Immigration Detainer - Notice of Action; and

i. Declaration of John Schroeder.

Case 1:11-cv-00708-SEB-MJD Document 172 Filed 04/09/12 Page 2 of 35 PageID #: 1162
INTRODUCTION This litigation involves preemption challenges to Senate Enrolled Act 590 by a class of persons represented by Buquer, Adair and Urtiz, a Fourth Amendment challenge brought by Buquer, Adair and Urtiz, and a due process attack asserted by these three individuals. Basically, Plaintiffs posit that I.C. § 35 -33-1-1(a)(11)-(13) is preempted and violates the Fourth Amendment and that I.C. § 34 -28-8.2-2(b) is preempted and violates the Substantive Due Process Clause of the Fourteenth Amendment. Plaintiffs, based on their own allegations and assertions, obtained a Preliminary Injunction early on in this matter. Armed with that victory -and recycling their previous affidavits and arguments -- Plaintiffs quickly moved for summary judgment to invalidate these provisions of Indiana law. For any of the following reasons, Plaintiffs have not sustained their summary judgment burden and, as a result, their motion must be denied. First, we must be clear in the precise challenges being raised and by whom. To that end, the two preemption challenges are raised on behalf of the class. The Fourth Amendment and due process challenge, however, are raised only by Buquer, Adair and Urtiz. See Docket No. 84 (noting that the class is certified with regards to (1) whether Section 20 of SEA 590, which provides law enforcement with discretion to arrest individuals with a notice of action, detainer, or removal order is preempted and (2) whether Section 18 of SEA 590, which provides the use of consular identification cards1 as a form of identification is unlawful is preempted).2 And, Plaintiffs’ alleged challenge to the consular identification card (“CID”) provision of the law is

1

On the evening of April 9, 2012, Plaintiffs’ counsel informed Defendants that Buquer’s U-Visa application

was granted and she has now received her Employment Authorization Card. T his may affect Buquer’s ability to

continue as class representative and will be reviewed.

2

The challenge to the provision relating to previous indictment for, or conviction of, an aggravated felony is

not identified as part of the class issues.

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based on a purported violation of due process; although, their argument seems to have shifted to equal protection -- which was not pled by them and which is not part of this case.
Second, Plaintiffs, in their rush to invalidate sections of Senate Enrolled Act 590, have ignored the legal principles governing this case, have opposed reasonable attempts to develop a factual record that would guide this Court’s review, have proffered hypothetical scenarios rather than logical analysis based on real-world facts, and have painted with the broadest of brushes. The simple fact is that Plaintiffs have not met their heavy burden of demonstrating that the specifically challenged provisions of Indiana law are facially unconstitutional. See Washington State Grange v. Washington State Republican Party, 552 U.S. 442, 449 ( 2008) (holding that to succeed on a facial challenge to a state law, the challenger must show “that the law is unconstitutional in all of its applications”) (citing United States v. Salerno, 481 U.S. 739 (1987)). Accordingly, Plaintiffs’ Motion must be denied.
STATEMENT OF MATERIAL FACTS IN DISPUTE A. FACTS CONCERNING THE PLAINTIFFS IN DISPUTE The Plaintiffs state that Ingrid Buquer “regularly” uses her CID for nonfraudulent purposes. See Docket 123 at 4. Buquer testified that she has used, or attempted to use, her CID to bank, obtain an apartment lease, visit her son at school, and buy medicine, cigarettes and alcohol. See Buquer Dep. at 24:23-25; 25:1-3, 27:21-25, 28:4-6, 13-16, 29:8-12. H owever, when asked about the frequency of her use of her CID, she stated that she did not use it regularly. See Buquer Dep. at 25:13-16 (“Q[:] On a regular day how often do you use your consular identification card as identification? A[:] I don’t. I don’t really do anything that would require me to show my ID.”). The Plaintiffs stated that Ms. Buquer’s CID was her only method of identification because she could not obtain a driver’s license from Indiana and because her passport was expired. See Docket 123 a t 4. H owever, as of February 2012, Ms. Buquer was
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able to obtain a passport from the Mexican Consulate, and thus has an alternative method of photo identification. See Buquer Dep. at 13:13-18, 14:3-9; Buquer Dep., Ex. B.
Urtiz is a M exican citizen and came to the United States when he was three years old. Urtiz Dep. at 9:10-10:4. Urtiz lives in Indianapolis and has lived at his current address for the past five years. Urtiz Dep. at 7:7-7:11. Urtiz rents this house. Urtiz Dep. at 7:12-7:18. When Urtiz first became a tenant, he had to provide no documentation to establish his identity. Urtiz Dep. at 7:19-7:22. To get electric and gas service at his home, Urtiz needed to show his social security card and his Indiana driver’s license. Urtiz Dep. at 22:3-22:16. For other utilities (dish TV, internet, water) Urtiz needed to provide no identification. Urtiz Dep. at 22:17-22:25. Urtiz has a bank account with PNC and to open this account he provided his Indiana driver’s license, his social security card, and his resident card. Urtiz Dep. at 15:15-16:22.
Urtiz currently works for Sign Services as a service technician; before that, Urtiz worked in landscaping for IMI and before that he worked for a cleaning service. Urtiz Dep. at 7:23-8:25. Urtiz supplied each of his employers with his social security card, his Indiana driver’s license, and his residence card. Urtiz Dep. at 13:17-14:5. In terms of photo identification, Urtiz has a Mexican passport, an Indiana driver’s license, and a residence card. Urtiz Dep. at 11:8-12:8. To get his Indiana driver’s license, Urtiz supplied his social security card, his proof of address, and his resident card. U rtiz Dep. at 12:23-13:5. Urtiz has never had a CID card. Urtiz Dep. at 13:13-13:16.
When Urtiz needs to show identification, he uses his Indiana driver’s license. Urtiz Dep. at 18:5-18:15; Urtiz Dep. at 18:23-19:21:6 (testifying that the only transactions he uses identification for is to buy alcohol and to cash his paycheck and that he uses his Indiana driver’s license for both).
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Urtiz pled guilty to theft and was sentenced to two years in the Indiana Department of Correction. Urtiz Dep. at 24:13-24:18. Urtiz served two days in jail. Urtiz Dep. at 24:19-24:21. From his release until 2010, Urtiz was never detained by any state law enforcement officer. Urtiz Dep. at 36:3-36:10. In 2010, U rtiz was at his house and Immigration and Customs Enforcement (“ICE”) agents had a warrant for his arrest and took him into custody. Urtiz Dep. at 25:1-25:9; Urtiz Dep. at 26:3-26:7; Urtiz Dep. Exh. 8 ( federal notice to appear and federal warrant for arrest of alien signed by Urtiz); Urtiz Dep. at 37:19-38:13. S ignificantly, Urtiz admitted that local law enforcement (Indianapolis Police) were with the federal agents at Urtiz’s home when he was taken into custody. Urtiz Dep. at 25:10-25:18.
After spending a day at the immigration building in Indianapolis, Urtiz was transferred to a facility in Ullin, Illinois and held there for a month; this facility housed persons in custody for immigration violations as well as “regular inmates” and the officers at the facility were local officers. Urtiz Dep. at 26:23-28:1. After Illinois, Urtiz was transferred to a facility in Kenosha, Wisconsin and was held there for four months; the facility housed both immigration violators and state law offenders and the officers were both federal and state/local. Urtiz Dep. at 28:228:18; Urtiz Dep. at 36:17-36:20. U rtiz successfully moved for post-conviction relief and the next day he was released. Urtiz Dep. at 30:8-30:10. Urtiz never filed any type of lawsuit against the ICE agents or the state/local officers that held him. Urtiz Dep. at 32:18-33:2. And, since his release, Urtiz has not been picked up by federal agents or by state/local law enforcement officers. Urtiz Dep. at 30:11-30:16.
Louisa Adair was arrested on S eptember 20, 20 02. A dair Dep. at 20:3-5. A dair was arrested by immigration officials and held in the Marion County Jail for the weekend. Adair Dep. at 21:19-25; 22:1. After leaving Marion County, Adair stayed in a county jail in Chicago
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for three days and was transported to Wisconsin. Adair Dep. at 22:4-6. The jail in Wisconsin contained individuals detained for immigration issues and others confined for non-immigration issues. A dair Dep. at 22:16-25; 23:1. S ome of the individuals working in the Wisconsin jail were members of local law enforcement. Adair Dep. at 23:9-14.
Urtiz did not know what a “detainer order” is. Urtiz Dep. at 30:17-30:18. U rtiz has received notices from federal immigration and he turned them over to his attorney; he has no facts or evidence to suggest that local or state law enforcement was provided with such notices. Urtiz Dep. at 36:21-37:14.
B. FACTS CONCERNS IMMIGRATION MATTERS States have a clear interest in ensuring that immigration laws are enforced. Indiana’s interest stems from both a commitment to the economic well-being of its citizens and their safety. The identification of removable, criminal aliens is one area where Indiana has an indisputable interest. On a recent “mini-surge” spearheaded by the U.S. Immigration and Customs Enforcement, agents identified over 138 removable aliens while investigating only three Indiana county jails over only a four day period. (Exhibit G.) Federal agencies tasked with the enforcement of immigration-related matters frequently cooperate with local enforcement officials in Indiana. For example, Ricardo Wong, Field Office Director for the Immigration and Customs Enforcement in Chicago, in an October 17, 2011 memorandum describes a “mini-criminal alien surge” in three Indiana county jails in October of 2011. A fter identifying criminal aliens, ICE removed six criminal offenders who were then transferred to the Marion County Jail. (Exhibit G.) In addition to 287(g) agreements, there are additional agreements between local and federal enforcement officials. For example, as detailed in an excerpt from a t able received through a FOIA request from ICE, local detention facilities have differing levels of cooperation
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with ICE. ( Exhibit G.) T he Porter County Juvenile Detention Center has a 100% screening agreement with the federal government which is described in another ICE document obtained through a FOIA request as a f acility where “ICE has an understanding with the facility that it will refer to ICE all self-proclaimed foreign born nationals booked into the facility. ICE in turn will review facility referrals for removability.” (Exhibit G.) In contrast, the Porter County Jail has “Limited Coverage,” where “ICE does not have an understanding that the facility will refer to ICE all self-proclaimed foreign born nationals booked into the facility. (Exhibit G.)
C. FACTS CONCERNING CONSULAR IDENTIFICATION CARDS IN DISPUTE The Plaintiffs state that “[d]ue to their highly sophisticated security measures, CIDs are extremely difficult to forge.” Docket 123 at 8 (citing Docket 41-4, ¶ 9). However, the source of this statement, Sergio Aguilera, testified that he was only familiar with the security of Mexican CIDs, not CIDs issued by every country. See Aguilera Dep. at 34:4-10. Thus, the Plaintiffs have failed to establish a foundation for, or alternatively that Mr. Aguilera has personal knowledge of, the broad proposition that “CIDs are extremely difficult to forge.” Similarly, there is no foundation that Mr. Aguilera has personal knowledge concerning the CID issuing practices of all countries in order to make the statement that “[CIDs] will not be issued to persons with a criminal record, persons subject to prosecution, or persons facing a judicial or administrative process.” Docket 123 at 8 (citing Docket 41-4, ¶ 9). W hile this may be true for the Mexican consulate (which is arguable based upon M r. Aguilera’s testimony), there was no foundation made that Mr. Aguilera is familiar with the CID practices in such a way that would qualify him to testify as to the practices of all other countries. See Aguilera Dep. at 13:1-19.
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ARGUMENT A. Indiana Code § 35-33-1-1
Plaintiffs challenge the amendments to Indiana Code § 35 -33-1-1. Plaintiffs assert that these provisions violate the Fourth Amendment of the United States Constitution and are preempted by federal law. Plaintiffs improperly rely on an untenable reading of this provision to cast the law in the harshest light possible and Plaintiffs’ gloss on the law becomes tarnished when the particular language is analyzed.
As properly viewed, and contrary to Plaintiffs’ (mis)characterization, these provisions do not mandate that local law enforcement arrest persons in a willy-nilly fashion based on the mere suspicion that the person may not legally be in the United States. To that end, these provisions make clear that: “a law enforcement officer may arrest a person when the officer has: . . . (11) a removal order issued for the person by an immigration court; (12) a detainer or notice of action for the person issued by the United States Department of Homeland Security; or (13) probable cause to believe that the person has been indicted for or convicted of one (1) or more aggravated felonies (as defined in 8 U.S.C. 1101(a)(43)).” I.C. § 35-33-1-1(a)(11)-(13) (emphasis added). In short, these provisions merely enable the officer to exercise his/her discretion and only when specific information (probable cause to believe…) or documents (removal order or detainer) are provided to him/her.
Indeed, these provisions merely codify what was taking place in Indiana before passage of these provisions and provide clarity to law enforcement. For example, Mr. Urtiz pled guilty to an aggravated felony. A few years after he had served his sentence, he was arrested by federal agents at his home. S ignificantly, these federal agents had a warrant for his arrest and also a notice to appear before an immigration judge to begin removal proceedings. T hese federal
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agents were assisted in this arrest by Indianapolis police officers. Once arrested, Mr. Urtiz was housed for a month in a state facility in Illinois (where he was kept with state offenders and guarded by state and local officers) and then Mr. Urtiz was housed for four months in a state facility in Wisconsin (again, where he was kept with state offenders and guarded by state and local officers). Once his conviction was vacated, he was released. He has not been picked up by federal agents or local law enforcement since that time and he never filed any type of lawsuit against the federal agents or the local police as a result of his arrest.
Additionally, the fact is that law enforcement does not receive removal orders nor does law enforcement arrest people merely because of a s uspicion regarding his/her immigration status. As Brian Gensel, Prosecuting Attorney for Porter County, has declared, the scenario is that a pe rson is arrested because there is probable cause that the person committed a crime unrelated to immigration. (Declaration of Brian Gensel, ¶ 5.) Once in custody, law enforcement will try and verify the person’s identity and criminal history. If this check reveals that the person may not be here legally, ICE is contacted and in cases where the person has committed a serious criminal offense (a crime of violence or serious drug related crime) a detainer will be issued. As it relates to the Indiana Department of Correction (“DOC”), 180 days before the person is to be released from prison, the release process starts. (Declaration of Ronald Leffler ¶ 3.) During that process, DOC runs reports through the National Crime Information Center and a Triple I check to search for any outstanding warrants or detainers. (Declaration of Ronald Leffler ¶¶ 4 -5.) When DOC learns that an individual has a detainer on him/her, ICE is notified of his/her pending release date. (Declaration of Ronald Leffler ¶¶ 5-6.) Typically, before the release date, ICE will send the detainer to the DOC facility housing the individual. (Declaration of Ronald Leffler ¶
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7.) If the release date for a prisoner (who is subject to a detainer) comes, he/she is released even

if ICE is not there to pick up the person. (Declaration of Ronald Leffler ¶¶ 8-9.)

Compliance with immigration detainers, moreover, is already specifically authorized by

federal law. 8 C .F.R. § 287.7. T hus, it should be manifestly clear that such cooperation is

perfectly acceptable under federal and state law, but organizations have raised questions about

the legality of compliance with immigration detainers.

See, e.g.

http://www.aclufl.org/news_events/ ?action= viewRelease&email AlertID= 3763 (Florida ACLU

threatening local law enforcement officers with litigation if they comply with federal

immigration detainers). Rather than some grand authorization for Indiana law enforcement

officers to unconstitutionally arrest persons, the amendments at issue simply codify and clarify

cooperation between federal and state officials that is already happening in Indiana.

B. As Properly Viewed, Plaintiffs Have Not Demonstrated That I.C. § 35-33-1-1(a)(11)(13) Is Unconstitutional

1. State Laws Are Presumed To Be Constitutional And Plaintiffs Bear A Heavy Burden To Establish Their Claims Of Preemption

Whether a s tate law “is invalid under the Supremacy Clause depends on the intent of

Congress. ‘The purpose of Congress is the ultimate touchstone.’” Malone v. White Motor Corp.,

435 U.S. 497, 504 ( 1978). This Court may not find that the provisions challenged by Plaintiffs

are preempted “in the absence of clear evidence that Congress so intended.” California v. FERC,

495 U.S. 490, 497 (1990). “Only a demonstration that complete ouster of state power including

state power to promulgate laws not in conflict with federal laws was ‘the clear and manifest

purpose of Congress’ would justify th[e] conclusion” that Indiana’s law is preempted. See

DeCanas v. Bica, 424 U.S. 351, 357 ( 1976) (quoting Florida Lime & Avocado Growers, Inc. v.

Paul, 373 U.S. 132, 146 (1963)).

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In all preemption cases, there is a presumption that “the historic police powers of the States were not to be superseded by the Federal Act unless that was the clear and manifest purpose of Congress.” Wyeth v. Levine, 555 U.S. 555, 565 (2009) (quotation marks and ellipses omitted). See also Cipollone v. Liggett Group, Inc., 505 U .S. 504, 516 (1992). T he United States Supreme Court has found that state and local police power is “an exercise of the sovereign right of the government to protect the lives, health, morals, comfort, and general welfare of the people.” Manigault v. Springs, 199 U.S. 473, 480 (1905). The sovereign powers retained by the States “proceed, not from the people of America, but from the people of the several states; and remain, after the adoption of the Constitution, what there were before.” Sturges v. Crowningshield, 17 U.S. 122, 193 (1819).
Indeed, this Court must begin its preemption analysis with the “presumption that the state statute is valid” and, from this presumption, this Court must then ask whether Plaintiffs have “shouldered the burden of overcoming that presumption.” Pharm. Research & Mfrs. of Am. v. Walsh, 538 U .S. 644, 6 61-62 (2003). P laintiffs, as the challenging parties, must overcome a “high threshold” if they are to prove that the provisions are preempted. Chamber of Commerce of U.S. v. Whiting, 131 S .Ct. 1968, 1985 ( quoting Gade v. National Solid Wastes Mgmt., 505 U.S. 88, 110 (1992) (Kennedy, J., concurring)). Plaintiffs must point to some congressional act that does the preempting and the preemption analysis “does not justify a ‘freewheeling judicial inquiry into whether a state statute is in tension with federal objectives.’” Id. (quoting Gade, supra, at 111).
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2. Contrary To Plaintiffs’ Claims, Federal Immigration Law Does Not Preempt All State Laws That May Impact Citizens From Another Country
Predictably, Plaintiffs point to federal immigration law -- the Immigration and Nationality Act (“INA”) -- as the basis for their preemption arguments.3 Plaintiffs spend a lot of time and space claiming that the states cannot regulate immigration because the exclusive authority to do s o rests with the federal government. See, e.g., Docket No. 123 at 20, 21. O f course this is an oversimplification of the law and a mischaracterization of the issue presented here.
The INA has been amended many times -- most notably for this case by the Illegal Immigration Reform and Immigrant Responsibility Act (“IIRIRA”). Taken as a whole, federal immigration law expresses the “public policy against an alien’s unregistered presence” in the United States. INS v. Lopez-Mendoza, 468 U.S. 1032, 1047 (1984). Despite federal authority to regulate “immigration” -- meaning the “determination of who should or should not be admitted into th[is] country, and the conditions under which a legal entrant may remain” -- the Supreme Court “has never held that every state enactment which in any way deals with aliens is a regulation of immigration and thus per se pre-empted.” DeCanas, 424 U.S. at 355 (“the fact that aliens are the subject of a state statute does not render it regulation of immigration”). In fact, DeCanas ended any notion that the INA fully occupies the field with regards to the regulation of unlawfully present aliens as the Court upheld a California statute that “sought to strengthen its economy by adopting federal standards in imposing criminal sanctions against state employers who knowingly employ aliens who have no federal right to employment.” Id. at 355.

3

Plaintiffs also point to general powers found within the Constitution. See Docket No. at 12 (referencing the

foreign Commerce Clause, the authority to establish a uniform Rule of Naturalization, and the President’s role in

conducting foreign affairs). These provisions do not advance the preemption analysis since the relevant inquiry is

whether an enactment of Congress preempts the specific provisions challenged. Further, Plaintiffs have not raised a

foreign Commerce Clause challenge to Indiana’s law nor have they argued that the challenged provisions relate to

the naturalization of persons as U.S. citizens.

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In short, DeCanas held that the INA does not preempt a State’s regulation of illegal aliens that is “harmonious with federal regulation.” Id. at 356. See also Plyler v. Doe, 457 U.S. 202, 225, 228 n.23 (1982) (recognizing that States have “authority to act with respect to illegal aliens, at least where such action mirrors federal objectives and furthers a legitimate state goal” and also acknowledging that, despite “the exclusive federal control of this Nation’s borders, we cannot conclude that the States are without any power to deter the influx of persons entering the United States against federal law, and whose numbers might have a d iscernible impact on traditional state concerns”).
And, as relevant to the present dispute: Nothing in this subsection shall be construed to require an agreement under this subsection in order for any officer or employee of a State of political subdivision of a St ate (A) to communicate with the Attorney General regarding the immigration status of any individual…; or (B) otherwise to cooperate with the Attorney General in the identification, apprehension, detention, or removal of aliens not lawfully present in the United States. 8 U.S.C. § 1357(g)(10) (emphasis added). In sum, federal immigration law -- as evidenced by statute and by the Supreme Court’s holdings -- specifically authorizes a s ystem of cooperative federalism between states, counties, municipalities, and the federal government when it comes to the “identification, apprehension, detention, or removal of aliens” that are not lawfully in the United States. See also Mabey Bridge & Shore v. Schoch, 666 F.3d 862 (3d Cir. 2012) (rejecting preemption challenge because federal law allowed the Commonwealth of Pennsylvania to enact a more stringent requirement relating to the purchase of domestic steel). The Department of Homeland Security (“DHS”) has stated regarding immigration matters: “DHS has long viewed state and local governments as valuable partners that can serve a helpful role in assisting DHS in fulfilling its responsibilities with respect to immigration enforcement. DHS continues to welcome that participation and does not intend by this guidance
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to disturb the longstanding pattern of cooperation on a day-to-day basis with state and local law enforcement agencies.” See Guidance on State and Local Governments’ Assistance in Immigration Enforcement and Related Matters, http://www.dhs.gov/xlibrary/assets/guidancestate-local-assistance-immigration-enforcement.pdf (last visited April 9, 2012).
3. I.C. § 35-33-1-1(a)(11)-(13) Is Not Preempted With these principles and maxims in mind, we turn to Plaintiffs’ arguments. Plaintiffs challenge, on preemption grounds, I.C. § 35-33-1-1(a)(11)-(13): (a) A law enforcement officer may arrest a person when the officer has:
*** (11) a removal order issued for the person by an immigration court; (12) a detainer or notice of action for the person issued by the United
States Department of Homeland Security; or (13) probable cause to believe that the person has been indicted for or
convicted of one (1) or more aggravated felonies (as defined in 8 U.S.C. 1101(a)(43)). I.C. § 35-33-1-1(a)(11-13). Plaintiffs argue that these provisions “directly conflict with federal decision-making” and that these provisions “stand as an obstacle to the full implementation of federal law.” Docket No. 123 at 21 (further quotations and citations omitted). Plaintiffs’ argument relies on t he misguided preconception that Indiana lawmakers intended to run rampant over rights of individuals and completely disregard federal immigration efforts. Plaintiffs repeatedly decry the fact that sub-sections 11 and 12 fail to require probable cause to arrest an individual. But subsections 11 and 12 actually require a higher standard than probable cause. The statute clearly states that a law enforcement officer may arrest a person only “when the officer has . . . a removal order issued for the person by an immigration court” or “a
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detainer or notice of action for the person issued by the United States Department of Homeland
Security.” I.C. § 35-33-1-1-(a)(11), (12) (emphasis added).4
Rather than presenting any facts to support their view of how the law works or their
preemption arguments, Plaintiffs spin a series of far-fetched hypothetical scenarios:
Ultimately, the easiest way to demonstrate the preemptive effect of federal law here is to focus on how the statute will operate. Perhaps local law enforcement will suspect that a person is subject to the statute and will contact federal authorities or review law enforcement databases to discover that a N otice of Action was issued or that the person was indicted for an aggravated felony in the past. Law enforcement will then arrest the person. H owever, these are not crimes, so the person will not be taken to state court for an initial hearing. Instead, local law enforcement officers will contact federal immigration authorities to announce that they have arrested someone who had an aggravated felony indictment dismissed long in the past, or who received a Notice of Action when being informed of his or her lawful status, or who has a removal order that has been stayed by order of an immigration judge. T he federal immigration authorities will then, undoubtedly, disclaim any interest in assuming custody over the person.
Docket No. 123 at 24 (emphasis added). Looking at each provision, and the facts that actually
have been supplied to this Court, demonstrate that position is without merit and their Motion
must be denied.5
a. I.C. § 35-33-1-1(a)(11) Is Not Preempted
With regards to I.C. § 35-33-1-1(a)(11), Plaintiffs’ contention can be summarized as
follows: Indiana has no legitimate interest in arresting a person who has a removal order issued
against them because the federal government may exercise discretion to allow those who may

4

Indeed, the legislative history exhibits a general heightening of the burden on officers which includes, for

example, the shift from requiring an officer merely having probable cause to believe that, for example, a removal

order had been issued, to actually requiring the officer to have the removal order. Journal of the House, State of Ind.

2011 Reg. Sess. No. 52,622 (April 15, 2011).

5

Plaintiffs’ facts cannot be supported by any record evidence because Plaintiffs did not take discovery in this

case prior to filing their motion and, indeed, they opposed Defendants’ efforts to build a complete factual record that

could have been considered by this Court. S ince Plaintiffs’ claims are facial in nature, they win only if they

demonstrate that there is no constitutional application of the law. Clearly, the facts presented show that there are

ways that the law can be constitutionally applied and, as a result, Plaintiffs’ challenges fail. I f, in the future, this

statute is used to improperly arrest a specific individual, that individual can being claims to vindicate his/her rights.

Invalidating the law wholesale is improper.

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have had removal orders issued against them in the past to remain in the United States. As such, Plaintiffs conclude that the Indiana law would be an obstacle to the federal government’s discretion. Docket No. 123 at 21.
Plaintiffs’ theory is riddled with many holes. First, and contrary to what they have represented to this Court, local law enforcement is not mandated or required to arrest persons who have been issued a removal order from an immigration court. The verb used is “may” -this certainly means that their power is discretionary. Second, the law enforcement officer must physically have the removal order. Plaintiffs offer no evidence to demonstrate if or how or when a local law enforcement officer will physically have such an order. To that end, Ms. Adair has never been asked to provide her removal order to local law enforcement, nor has she ever been arrested or detained by any local law enforcement official because she received a removal order in the past.6 Third, Defendants have submitted Declarations making clear that local law enforcement does not receive removal orders from immigration courts prior to arresting somebody. See Gensel Declaration. A s shown by the evidence in this case, the only way in which a law enforcement officer or the DOC would receive removal orders or detainers is through the federal government, thus implying cooperation. See Leffler Declaration. Indeed, the facts presented make clear that persons are arrested because there is probable cause that they have committed some other crime and it is only after the person is in custody that immigration status may be checked with ICE.7

6

Ms. Adair’s removal order has been superseded by subsequent federal decisions. Thus, it is doubtful

whether she is actually subject to a removal order at this time and, if not, she certainly lacks standing to pursue this

claim.

7

Plaintiffs pose a hypothetical as to how they believe the statute may operate. Docket 123 at 24. Of course,

their belief is not grounded in any facts and is nothing more than rank speculation. Rather than jumping the gun and

seeking summary judgment on the heels of their PI victory, perhaps Plaintiffs would have been better served to take

discovery as to how local law enforcement actually do their jobs.

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In the end, all this provision does is enable local law enforcement to cooperate with federal law enforcement when it comes to identifying and detaining those who are not here legally. Such cooperation is specifically authorized by federal law. See 8 U.S.C. § 1357(g)(10). Given this provision of federal law, the Indiana law does not conflict with federal immigration law in all respects and is not an obstacle to federal immigration law in all respects. There is no facial preemption.
b. I.C. § 35-33-1-1(a)(12) Is Not Preempted As for I.C. § 35 -33-1-1(a)(12), Plaintiffs argue that Indiana Code § 35 -33-1(1)(a)(12) authorizes law enforcement officers to arrest a person when the officer has a detainer or a notice of action. Plaintiffs’ expansive reading of the statute fails due to factual, grammatical, structural, and logical reasons. Properly viewed under real-world facts, subsection 12 merely permits law enforcement to cooperate with ICE and hold a person pursuant to ICE’s issuance of a Detainer -Notice of Action. The following points are made. First, to support their claim of unreasonableness, Plaintiffs improperly explain that the “Notice of Action” is Form I-797. W hile a “Notice of Action” may include Form I-797, a “Notice of Action” is not limited to that particular form. Indeed, such “Notices of Action” include other forms issued by the Department of Homeland Security, including Form 29, which is issued to importers by Customs and Border Protection (a subagency within DHS). Yet another Notice of Action is Form I-247, which is an Immigration Detainer – Notice of Action. In fact, the use of the phrase in subsection 12 makes clear that the General Assembly did not intend to give law enforcement the ability to arrest persons merely because he/she may have a run-of-themill Notice of Action.
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Indeed, it would be absurd to assume, as Plaintiffs do, t hat the General Assembly intended to authorize the arrest of any persons who receive a relatively routine Notice of Action. It is equally absurd to assume that the General Assembly intended to authorize the arrest of any foreign national who has received communication from the United States Citizenship and Immigration Services, benign or otherwise. A much more reasonable interpretation of subsection 12 i s that the legislature intended to authorize the arrest only in instances where an Immigration Detainer, DHS Form I-247 has been issued, and where the officer has the detainer. Looking at the form itself clarifies the legislative intent. T he heading of the form reads “Department of Homeland Security,” “Immigration Detainer – Notice of Action.” R eading subsection 12 as relating to one form is more efficient and logical than trying to interpret the legislature as intending to authorize the arrest for every “Notice of Action” that may be issued by CBP, FEMA, ICE, TSA, USCIS, the Coast Guard or the Secret Service or any other agency within DHS.
Second, the structure of the provision itself aligns with an interpretation that the legislature did not intend to authorize arrests related to the issuance of a Notice of Action I-797 in that a Notice of Action is not given a separate subsection. Subsection 11 pertains to a single type of document, the Final Order of Removal. Plaintiffs assert that subsection 12 refers to two documents, the Immigration Detainer, DHS Form I-247 and form I-797, Notice of Action. It is much more reasonable to read subsection 12, like subsection 11, as only referring to a single type of document, the Immigration Detainer, DHS Form I-247. Further, while United States Customs and Immigration Services (“USCIS”) is within the Department of Homeland Security, the form I-797 is typically issued specifically by USCIS. See, e.g. 8 C.F.R. § 2 14.14(b)(5)(i)(A). In contrast, an I-247 Detainer-Notice of Action is more generally labeled as issuing from DHS.
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(Exhibit H.) Subsection 12 specifies that the document in question is one issued by DHS, once again indicating that there is only one document in question – the I-247 Detainer.
Third, to accept Plaintiffs’ position, the legislature would have included an article prior to “notice of action” if they had intended to refer to a separate document. Subsection 11 and 12 refer to “a removal order” or “a detainer.” Notably, “notice of action” in subsection 12 lacks an article, indicating further that the legislature did not even consider the Form I-797, Notice of Action, much less intend to authorize any arrests because of its issuance.
Fourth, Plaintiffs have provided no facts to demonstrate how (or if) law enforcement ever receives a Notice of Action. A s the party with the summary judgment burden, this lack of factual evidence precludes summary judgment for Plaintiffs. As a factual matter, State Defendants have submitted facts showing that law enforcement officers do not receive Notices of Action. Law enforcement officers do receive Detainers -- Notice of Action from ICE; however, the facts submitted reflect that prisoners in state custody are not kept for any additional time because of such Detainers. This merely reflects the cooperative nature of subsection 12. See also 8 U.S.C. § 1357(g)(10).
c. I.C. § 35-33-1-1(a)(13) Is Not Preempted As for I.C. § 35 -33-1-1(a)(13), again, it must be stressed that the authority is not mandatory and it requires an officer to actually have probable cause. F urther, Plaintiff has offered no f actual basis to establish how local officers may obtain such information. T he circumstances surrounding Mr. Urtiz demonstrate how this provision is intended to work. Mr. Urtiz pled guilty to a crime that is an aggravated felony under 8 U .S.C. § 1101(a)(43). He was sentenced to two years in jail; however, he served only two days. Years later, ICE agents had a federal warrant for his arrest because he had been convicted of an
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aggravated felony. They enlisted the help of Indianapolis police and picked up Mr. Urtiz. After spending a night at the federal immigration building in Indianapolis, Mr. Urtiz was sent to Illinois and later to Wisconsin. Both facilities housed immigration offenders as well as offenders who violated state laws and the officers at both facilities included local officials. Mr. Urtiz had his criminal conviction vacated and he was released from the Wisconsin facility the very next day. Between his release from serving his two days in jail and the ICE agents and Indianapolis police showing up at his house in 2010, Mr. Urtiz was never detained or arrested by local law enforcement. Since the time he was released from the Wisconsin facility, Mr. Urtiz has never been detained or arrested by local law enforcement. In sum, ICE provided information to local law enforcement and asked for help in apprehending and holding Mr. Urtiz. This cooperation is clearly authorized by federal immigration law. See 8 U.S.C. § 1357(g)(10).
4. Summary In sum, these provisions clarify the obligation Indiana local law enforcement have to cooperate with other enforcement agencies, particularly federal agencies, with respect to the enforcement of laws related to immigration. T he provisions must be read in conjunction with other, unchallenged, provisions enacted by SEA 590, i ncluding Indiana Code § 5 -2-18.2-7 -“Every law enforcement agency (as defined in IC 5-2-17-2) shall provide each law enforcement officer with a written notice that the law enforcement officer has a duty to cooperate with state and federal agencies and officials on matters pertaining to enforcement of state and federal laws governing immigration” -- and Indiana Code § 11-10-1-2 -- requiring the Indiana Department of Correction officials to evaluate the “citizenship or immigration status of the offender by making a reasonable effort to verify the offender’s citizenship or immigration status with the United
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States Department of Homeland Security under 8 U.S.C. 1373(c).” I.C. § 5-2-18.2-7; I.C. § 1110-1-2(c)(4).
Cooperation between the federal and state governments is clearly contemplated by 8 U.S.C. § 1373(c) which states that “a Federal, State, or local government entity or official may not prohibit, or in any way restrict, any government entity or official from sending to, or receiving from, the Immigration and Naturalization Service information regarding the citizenship or immigration status, lawful or unlawful, of any individual” and further obligates the federal immigration enforcement agency to “respond to an inquiry by a Federal, State, or local government agency, seeking to verify or ascertain the citizenship or immigration status of any individual within the jurisdiction of the agency for any purpose authorized by law, by providing the requested verification or status information.” 8 U.S.C. § 1373(a), (c). This statute not only makes it abundantly clear that Congress contemplates and endorses cooperation between federal and state enforcement officials, but that Congress recognizes that states have a legitimate interest in the enforcement of immigration laws. See also 8 U.S.C. § 1357(g)(10). D. I.C. § 35-33-1-1(a)(11-13) Does Not Facially Violate The Fourth Amendment.
Plaintiffs also argue that these provisions violate the Fourth Amendment. O nce again, Plaintiffs resort to hyperbole rather than reason as they conclude that the “challenged statute, however, mandates warrantless arrests for conduct that is explicitly not criminal.” Docket No. 123 at 18. A s noted above, this statement just is not true. I.C. § 35-33-1-1-(a)(11-13) uses the word “may” and not “shall” -- thus, making clear that the law is discretionary and not mandatory. Further, the law requires the local law enforcement official to have certain things -- an actual removal order from an immigration court, an actual Detainer/Notice of Action from the Department of Homeland Security, and actual probable cause that an individual was indicted or
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convicted of an aggravated felony. Again, Plaintiffs provide no facts to support their parade of horrors that may happen in the future. S uch speculation is insufficient to invalidate a duly enacted state law.
Indeed, the reasonableness of I.C. § 34 -33-1-1(a)(11-13) is seen through the facts that Defendants have presented. Persons are arrested because there is probable cause that another crime has been committed. While the person is being held, his/her identity is verified as is past criminal history. D uring that process, if law enforcement has reason to believe that the individual is here illegally, ICE is contacted. In cases of serious crime (murder, rape, serious drug offenses, etc.) ICE may issue a Detainer on the person. As it relates to Mr. Urtiz, local law enforcement was present with ICE agents when he was arrested and, thereafter, he was held at facilities housing both immigration violators and state law violators and he was guarded by local officials. When he was arrested, it was pursuant to a federal warrant. And, when prisoners are being processed for release from DOC, ICE is contacted and detainers may be issued; however, the facts reflect that the prisoners are released on their release date and not held longer than that for ICE to collect them. Such facts demonstrate that the conduct of local officials is reasonable and, thus, does not violate the Fourth Amendment. E. Indiana Code § 34-23-8.2-1 is not preempted by federal law or any other authority.
Indiana Code § 34 -28-8.2-1 is not preempted by federal immigration law, the Vienna Convention on C onsular Relations, or by Presidential constitutional authority. T he authorities regarding preemption have been set forth above.
Indiana Code § 34-28-8.2-1 states: (1) As used in this chapter, “consular identification” means an identification, other than a passport, issued by the government of a foreign state for the purpose of providing consular services in the United States to a national of the foreign state.
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(2) (a) This section does not apply to a law enforcement officer who is presented with a consular identification during the investigation of a crime.
(b) Except as otherwise provided under federal law, a person who knowingly or intentionally offers, accepts, or records a consular identification as a valid form of identification for any purpose commits a Class C infraction. However, the person commits:
(1) a Class B infraction for a second offense; and (2) a Class A infraction for third or subsequent offense. The fact that the statute in question regulates the use of consular identification does not necessarily render it a regulation of immigration, but rather a regulation of acceptable forms of identification to be used within the state. The state statute at issue is intended to both assist the federal government in the enforcement of immigration laws and also to provide guidance to state law enforcement and other entities regarding valid forms of identification. In this case, the subject of the law is consular identification and the law does not make a determination of who should or should not be admitted into the country or the conditions under which a legal entrant may remain. Further, the Act promotes that Indiana residents obtain a reliable form of identification, which allows state law enforcement officers, financial institutions, businesses and a myriad of other entities in the state to verify the identity of people with whom they interact. Federal law does not preempt Indiana Code § 34-28-8.2-1 either explicitly or impliedly. For express preemption, the court must first consider the plain wording of a preemption clause; however no express preemption clause is it at issue in this case. Sprietsma v. Mercury Marine, 537 U.S. 51, 62 ( 2002) (quoting CSX Transp., Inc. v. Easterwood, 507 U.S. 658, 664 ( 1993)). Implied preemption may exist “where it is impossible for a private party to comply with both state and federal requirements, or where state law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.” Spreitsma, 537 U.S. at 65. Mere
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tension between the federal and state law is not enough to establish implied conflict preemption. Silkwood v. Kerr-McGee Corp., 464 U.S. 238, 256 ( 1984). In this case, a person is capable of complying with both state and federal requirements and the state law prohibiting a person from offering, accepting or recording of a consular identification card as a valid form of identification does not present an obstacle to any federal law.
Plaintiffs claim restrictions on CIDs “impacts directly on the United States’ treaty obligations as well as on United States’ foreign relations.” Docket No. 123 at 28. It is unclear how the restrictions in Indiana Code § 34-28-8.2-1 affect the United States’ treaty obligations. Plaintiffs seem to assert that this is based upon the Vienna Convention; however, the Vienna Convention does not authorize countries to issue CIDs. It provides authority for countries to issue passports and travel documents. See Vienna Convention on C onsular Relations art. 5, April 24, 1963, T .I.A.S. No. 6820, 21 U .S.T. 77, 1969 W L 97928. P laintiffs implicitly add authority to the Vienna Convention, which simply is not there. Therefore, Indiana Code § 34-288.2-1 is not preempted by federal law.
Plaintiffs also direct the Court to consider U.S. Treasury Department regulations relating to the verification of the identity of account holders; however, there is no express or implied conflict between these regulations and the state law at issue. See 31 C.F.R. § 1020.220 (providing minimum standards for identification and verification of financial account holders); 68 Fed. Reg. 55335, 55 336 (Sept. 25, 2003) (addressing proposed rules regarding customer identification for financial institutions which neither endorse nor preclude reliance on particular forms of foreign government issued identification). N either of these regulations expressly provides that any state law touching on the subject is preempted and Indiana Code § 34-28-8.2-1 is not impliedly preempted because it does not stand as an obstacle to the implementation or
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execution of these regulations. Both of the above regulations allow for the presentation of many

different forms of identification and the regulations do not forbid the use of CIDs. S imply

because the United States Treasury has not forbade the use of CIDs does not mean that Indiana

Code § 34-28-8.2-1 is preempted.

While the Treasury Department neither endorses nor prohibits the use of consular

identification cards for banking purposes, the federal government has limited the acceptability of

consular identification cards, implicitly questioning the reliability and purposes of the card. For

example, USCIS prohibits the use of consular identification cards for purposes of the I-9

Employment

Eligibility

Form.

See

http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnexto

id=d6c08318c9c64310VgnVCM100000082ca60aRCRD&vgnextchannel=5c1f8318c9c64310Vg

nVCM100000082ca60aRCRD. (last visited April 9, 2012) . In addition, federal legislation

limited the use of foreign issued documents to passports, effectively prohibiting states from

accepting consular identification cards for identification purposes for driver’s licenses. Pub. L. 109-13 Section 202(c)(3)(b).8

To the extent Plaintiffs claim the statute affects banking and issues of national security,

relative to foreign affairs, the federal government continues to cooperate with the State of

Indiana. The federal government gave authority to the Indiana Department of Financial

8

As stated above, Defendants learned this evening that Ingrid Buquer received her employment

authorization and that her U visa had been approved by the USCIS. While Defendants did not have time at this late

date to fully address this issue, particularly with respect to class certification, Defendants would like to note that

Buquer’s changed immigration status does render moot many of her arguments regarding the need for a consular

identification card. While the Real ID Act does prohibit the acceptance of consular identification cards by

participating states, foreign passports are accepted for identification purposes and a valid employment authorization

card is acceptable for purposes of establishing lawful status in the United States. With these forms of identification,

Buquer should now be able to obtain an Indiana drivers license.

See

http://www.in.gov/bmv/files/SecureID_Documents_List.pdf (last visited April 9, 2012).

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Case 1:11-cv-00708-SEB-MJD Document 172 Filed 04/09/12 Page 26 of 35 PageID #: 1186
Institutions to conduct audits of financial institutions, including reviews for cyberterrorism. Declaration of John Schroeder.
Indiana Code § 34 -28-8.2-1 does not impede on the authority of the executive branch over matters of foreign affairs. The authority of the executive branch over matters of foreign affairs is an implied constitutional power of the branch. Youngstown Sheet & Tube Co. v. Sawyer, 343 U .S. 579, 610 (1952). W here there is evidence of a clear conflict between the policies adopted by the federal executive authority and the state, the state law must give way. American Insurance Assn. v. Garamendi, 539 U.S. 396, 421 (2003). While Garamendi provides an example of a state’s internal regulation of commerce impermissibly affecting foreign policy, courts have subsequently held that in a matter of traditional state regulation, a matter that touches on the executive’s federal powers is allowable. See Dunbar v. Seger-Thomschitz, 615 F. 3d 574 (5th Cir. 2010) cert. denied, 131 S . Ct. 1511 ( U.S. 2011) (distinguishing the statute in Garamendi, which was an impermissibly independent policy objective favoring Holocaust victims, with the statute at issue, which was concerned primarily with the state’s valid interest in property regulation); Museum of Fine Arts, Boston v. Seger-Thomschitz, 623 F . 3d 1 ( 1st Cir. 2010) cert. denied, 131 S.Ct. 1612 (U.S. 2011) reh’g denied, 10-901, 2011 WL 1529816 (U.S. Apr. 25, 2011) (holding that while the statute in Garmendi effectively singled out only policies issued by European companies, in Europe, to European residents, the statute in question was one of general regulation regarding the statute of limitations on conversion). Indiana Code § 34-288.2-1 does not impede the federal government’s authority to manage foreign affairs because it does not single out any identifiable immigration policy or regulation, but rather outlines acceptable forms of identification within the State of Indiana.
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Ultimately, Indiana Code § 34-28-8.2-1 is an internal regulation by the State of Indiana to ensure residents of the State have proper and valid forms of identification, and does not impermissibly tread on the powers of the federal government regarding immigration matters. The goal of ensuring that individuals have valid forms of identification assists not only state law enforcement in being able to effectively identify individuals. F. There is no property interest in using a Consular Identification card; therefore,
Indiana Code § 34-28-8.2-1 does not violate the Fourteenth Amendment. Plaintiffs assert Indiana Code § 34 -38-8.2-1 violates the Due Process Clause of the Fourteenth Amendment of the United States Constitution because there is allegedly no rational basis for the statutory provision. However, Plaintiffs fail to acknowledge a key step in proving a Fourteenth Amendment violation – a liberty or property interest. This failure dooms the Plaintiffs’ claim. The Fourteenth Amendment provides that the State cannot deprive “any person of life, liberty or property without due process of law.” U.S. Const. Amend XIV. “The touchstone of due process is protection of the individual against arbitrary action of government.” Wolff v. McDonnell, 418 U.S. 539, 558 (1974). A property interest is “created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law.” Board of Regents v. Roth, 408 U .S. 564, 577 ( 1972). Defendants are aware of no court ever holding that a fundamental right exists to use CIDs. In a challenge to a similar law in Georgia, the court determined that “Plaintiffs cannot create a constitutionally protected property interest simply by showing that they have used Consular Identification Documents in the past.” Georgia Latino Alliance for Human Rights v. Deal, 793 F.Supp.2d 1317, 1339 (N.D. Ga. 2011).
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Cases have held that there is no p roperty interest in other licenses or forms of identification. See, e.g., Cheek v. Gooch, 779 F.2d 1507, 1508 (11th Cir. 1986) (finding no due process violation because state law did not grant property interest in applying for liquor license); Brown v. Cooke, CIV.A.06-CV-01092MSK, 2008 W L 638418 a t *9 ( D. Colo. Mar. 6, 2008) (“The court’s research has not uncovered any reported decisions that establish a fundamental right to a state identification card.”); accord Miller v. Reed, 176 F.3d 1202, 1206 (9th Cir.1999) (noting that the Supreme Court has not “afford[ed] the possession of a driver’s license the weight of a fundamental right”).
To the extent the Plaintiffs are attempting to rely upon t he Vienna Convention on Consular Relations to create a property interest, the Vienna Convention simply does not create an obligation or grant permission for countries to issue CIDs. Plaintiffs continually cite to the Vienna Convention as authority for issuing CIDs; however, the Vienna Convention does not provide such permission. The Vienna Convention allows consuls to “issu[e] passports and travel documents to nationals of the sending State, and visas or appropriate documents to persons wishing to travel to the sending State[.]” See Vienna Convention on Consular Relations, Art. 5, § d (1965). There is no evidence that CIDs are needed for travel to another country. Reviewing Plaintiff’s evidence in a favorable light would show that CIDs are used while in another country, but certainly not for travel to another country.
Plaintiffs cannot and have not stated a claim of a violation of the Fourteenth Amendment and their motion for summary judgment should be denied. Defendants are entitled to judgment as a matter of law on this claim.
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G. There are rational purposes for the enactment of Indiana Code § 34-28-8.2-1 and it does not violate the Fourteenth Amendment. Indiana Code § 34 -28-8.2-1 clearly is rationally related to the legitimate government
purpose of ensuring the reliability of identification of individuals within the state and preventing fraud against law enforcement, merchants and consumers. In fact, it is only by utilizing an absurd interpretation of the Act that an argument can be made that it is irrational, arbitrary or violates due process. Further, the Plaintiffs properly concede that the proper standard of review is the rational basis test, and that the “scrutiny under the rational basis is not particularly rigorous[.]” Docket No. 123 at 31.
“Rational-basis review is ‘highly deferential.’” Brown v. City of Michigan City, Indiana, 462 F. 3d 720 (7th Cir. 2006) (citing Turner v. Glickman, 207 F.3d 419, 426 (7th Cir. 2000). To find that a government action violates the requirements of substantive due process in this context, it must be ‘utterly lacking in rational justification.’” Id. (internal quotation marks omitted). Governmental action only fails rational basis scrutiny if no sound reason for the action can be hypothesized. Lamers Dairy Inc., v. U.S. Dept. of Agr., 379 F .3d 466, 473 ( 7th Cir. 2004); Northside Sanitary Landfill Inc. v. City of Indianapolis, 902 F.2d 521, 522-23 (7th Cir. 1990). In fact, the Plaintiffs cite only to a few extreme cases to support their irrational interpretation of the Act, despite the substantial number of cases upholding similar legislative action.9 This irrational interpretation and description of the Act’s provisions is carried over to

9

F.C.C. v. Beach Communications, Inc., 508 U.S. 307, 313 (1993) (Court upheld Cable Communications

Policy Act, which made a distinction in franchising arrangements for the purposes of F.C.C. regulations); Heller v.

Doe by Doe, 509 U .S. 312 (1993) (Court upheld Kentucky involuntary commitment procedures statute under the

rational basis standard); Williamson v. Lee Optical of Okla., Inc., 348 U.S. 483 (1955) (Court upheld licensing law

favoring optometrists over opticians against equal protection claim); Lamers Dairy Inc. v. U.S. Dept. of Agr., 379

F.3d 466, 473 (7th Cir. 2004) (upheld USDA regulation distinguishing between different classes of milk handlers for

purpose of marketing rules); Johnson v. Daley, 339 F.3d 582 (7th Cir. 2003) (upheld Prison Litigation Reform Act’s

limits on attorneys’ fees for prisoners’ civil suits); Turner v. Glickman, 207 F .3d 419, 426 (7th Cir. 2000) (court

upheld welfare law that restricted availability of food stamps to convicted felons); City of Chicago v. Chicago v.

Shalala, 189 F.3d 598 (7th Cir. 1999) (court found that the Welfare Reform Act, which restricted the eligibility of

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Case 1:11-cv-00708-SEB-MJD Document 172 Filed 04/09/12 Page 30 of 35 PageID #: 1190
the Plaintiffs’ unsupported arguments. Rational basis review does not authorize “the judiciary [to] sit as a superlegislature to judge the wisdom or desirability of legislative policy determinations made in the areas that neither affect fundamental rights nor proceed along suspect lines.” New Orleans v. Dukes, 427 U.S. 297, 303 (1976)(per curium). A decision by the legislature “is not subject to courtroom factfinding and may be based on rational speculation unsupported by evidence or empirical data.” FCC v. Beach Communications, Inc., 508 U.S. 307, ----, 113 S.Ct. 2096, 2102 (1993). See also, e.g., Nordlinger v. Hahn, 505 U.S. 1, ----, 112 S.Ct. 2326, 2334, ( 1992); Minnesota v. Clover Leaf Creamery Co., 449 U.S. 456, 463 -65 (1981); Vance v. Bradley, 440 U.S. 93, 111 ( 1979). “The doctrine that ... due process authorizes courts to hold laws unconstitutional when they believe the legislature has acted unwisely ... has long since been discarded.” Ferguson v. Skrupa, 372 U.S. 726, 730 (1963).
Indiana Code § 34 -28-8.2-1 clearly is rationally related to the legitimate government purpose of ensuring the reliability of identification of individuals within the state and preventing fraud against law enforcement, merchants and consumers. The legitimate government purpose is underscored by the concern about the reliability of consular identification. Indeed the reliability of the cards for purposes of identification has been the topic of concern for many years. They have been heralded as unreliable and subject to fraud. See Steve McCraw, Testimony at the House Judicial Subcommittee on Immigration, Border Security, and Claims Of the Committee on the Judiciary, House of Representatives, One Hundred Eighth Congress, First Session, June 19 and June 26, 2003. ( transcript available at http://judiciary.house.gov/Legacy/mccraw 062603.htm); See also Hearing on Consular Identification Cards (transcript available http://judiciary.house.gov/Legacy/87813.PDF).
some non-citizens for certain benefits, met the rational basis standard); Graff v. City of Chicago, 9 F.3d 1309, 130927 (7th Cir. 1993) (upheld City’s permit requirements for sidewalk newsstands against an equal protection claim).
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While imposing a penalty via an infraction, the Plaintiffs’ suggestion that the Act criminalizes the use and receipt of a consular identification card is incorrect. See A.S. v. State, 929 N.E.2d 881, 891 ( Ind. Ct. App. 2010) (noting that since 1981, an infraction is a civil sanction). Moreover, the State has an interest in the consistency and reliability of identification used by individuals with its borders. Indiana Code § 34-28-8.2-1 satisfies the rational basis test.
In an effort to justify the request for injunctive relief the Plaintiffs repeatedly mischaracterize the wording and potential effects of the Act. To this end, Plaintiffs weave strained hypotheticals to justify their claim that there is a lack of rational basis for the legislation. The Plaintiffs’ cursory analysis of Indiana Code § 34-28-8.2 is inaccurate and the provisions of the legislation do not make it a crime to “produce” or “show” a consular identification to law enforcement as Plaintiffs have alleged. First, this statute clearly does not provide for strict liability upon the production of a consular identification and specifically requires that an individual “knowingly or intentionally offers, accepts, or records a consular identification as a valid form of identification.” Indiana Code § 34 -28-8.2-1(2)(b). Plaintiffs’ hypothetical of “producing” a consular identification upon request by law enforcement does not violate that Act on its own. The individual is required to knowingly and intentionally offer the consular identification as a valid form of identification. Further, Plaintiffs repeatedly misstate that a violation of the Act will be deemed a “crime”, which is patently false as discussed above. The plain language of the Act states that a violation of the statue is merely an “infraction” not a crime as defined by statute, similar to a parking or speeding ticket.
Along the same line of flawed reasoning Plaintiffs allege that the Act would criminalize the “showing” of Mexican consular identifications at the Mexican Consulate without citation or support for the claim. Nothing in the Act makes it illegal to obtain, possess, or utilize consular
31

Case 1:11-cv-00708-SEB-MJD Document 172 Filed 04/09/12 Page 32 of 35 PageID #: 1192
identification at their respective consulates. The Act specifically permits the use of a pa ssport issued by the government of a foreign state for identification purposes. Contrary to prior evidence and the practical considerations of how this could even be enforced by state law enforcement in a foreign consulate this hypothetical fails to recognize that there is lack of jurisdiction to enforce this Act on t he foreign soil of any foreign consulate. The Mexican consulate is “foreign state,” so that Foreign Sovereign Immunities Act governs exercise of jurisdiction over any consulate. Gerritsen v. de la Madrid Hurtado, 819 F.2d 1511, 1517 (9th Cir. 1987). The Mexican Consulate also falls within the definition of a foreign state because it is “a separate legal person” that is “an organ of a foreign state or political subdivision thereof” and that is “neither a citizen of a state of the United States ... nor created under the laws of a third country.” 28 U .S.C. § 1603(b); cf. Gray v. Permanent Mission of the People’s Republic of the Congo to the United Nations, 443 F.Supp. 816, 819 (S.D.N.Y.1978) (Congo Mission is a foreign state under 28 U.S.C. § 1603), aff'd, 580 F.2d 1044 (2d Cir.1978). Thus, the Foreign Sovereign Immunities Act governs the exercise of jurisdiction over the Mexican Consulate. Gerritsen, 819 F.2d at 1517. T herefore, the Plaintiffs’ speculative concern about the potential “crime” committed when providing a consular identification at the Mexican Consulate is flawed and unsupported by the law.
Finally, in the form of an open-ended question, in lieu of argument, Plaintiffs merely ask what rational purpose can be served by allegedly criminalizing the showing of a consular identification as identification for commercial transactions. As stated above, the Act is rationally related to the legitimate government purpose of ensuring the reliability of identification of individuals within the state and preventing fraud against law enforcement, merchants and consumers.
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In addition, individual states on a daily basis require merchants to request proof of identification to purchase such items as alcohol, tobacco, firearms, and certain forms of medication for similar rational interests. The Plaintiffs have failed to show any undue burden to legally identify themselves and the Act does not preclude the use of a passport, issued by the government of a foreign state for identification purposes. Further, it is admitted by Plaintiffs that the federal government has taken a decidedly neutral role on the commercial use of consular identification. As explained above, there is nothing in the United States Department of Treasury final regulations that allows customers to offer consular identification as proof of identification. In fact the federal government does not always accept them as proof of identification. Since the federal government has remained neutral in this area individual states may adopt reasonable regulations in this area without preemption. T herefore, Indiana Code § 34-28-8.2-1 is clearly rational, serves many legitimate state interests, and does not violate the Fourteenth Amendment.
To the extent the Plaintiffs are now attempting to bring a claim under the Equal Protection Clause of the Fourteenth Amendment (by comparing the security measures employed for CIDs to those for other forms of identification), that claim was not alleged in the Plaintiffs’ Complaint.
CONCLUSION Based upon t he foregoing reasons, Plaintiffs’ motion for summary judgment should be denied and judgment should be entered in State Defendants’ favor as a matter of law.
Respectfully Submitted, GREGORY F. ZOELLER Attorney General of Indiana Atty. No. 1958-98 By: s/ Betsy M. Isenberg Betsy M. Isenberg
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Deputy Attorney General Atty. No. 23856-71 Patricia Orloff Erdman Chief Counsel for Litigation and Deputy Attorney General Atty. No. 17664-49 Donald G. Banta Deputy Attorney General Atty. No. 19261-49 Kenneth L. Joel Deputy Attorney General Atty. No. 30271-49 Jefferson Garn Deputy Attorney General Atty. No. 29921-49

CERTIFICATE OF SERVICE

The undersigned counsel hereby certifies that a cop y of the foregoing was filed electronically on this 9th day of April, 2012. Notice of this filing will be sent to the parties by

operation of the Court’s electronic filing system. Parties may access this filing through the

Court’s system.

Angela Denise Adams LEWIS & KAPPES aadams@lewis-kappes.com

Robert H. Schafstall CUTSINGER & SHAFSTALL robhschafstall@gmail.com

Gavin M. Rose ACLU of Indiana grose@aclu-in.org

Linton Joaquin National Immigration Law Center Joaquin@nilc.org

Kenneth J. Falk ACLU of Indiana kfalk@aclu-in.org

Karen Tumlin National Immigration Law Center Tumlin@nilc.org

Katherine Desormeau ACLU FOUNDATION IMMIGRANTS’ RIGHTS PROJECT kdesormeau@aclu.org

Justin F. Roebel City of Indianapolis, Corporation Counsel jroebel@indygov.org

Andre I. Segura ACLU FOUNDATION

Lee Gelernt ACLU FOUNDATION

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Case 1:11-cv-00708-SEB-MJD Document 172 Filed 04/09/12 Page 35 of 35 PageID #: 1195

IMMIGRANTS' RIGHTS PROJECT asegura@aclu.org

IMMIGRANTS’ RIGHTS PROJECT legelernt@aclu.org

Cecillia D. Wang ACLU FOUNDATION IMMIGRANTS' RIGHTS PROJECT cwang@aclu.org

Omar C. Jadwat ACLU FOUNDATION IMMIGRANTS’ RIGHTS PROJECT ojadwat@aclu.org

William W. Barrett WILLIAMS HEWITT BARRETT & WILKOWSKI, LLP wbarrett@wbwlawyers.com

Jose J. Beher HUGHES SOCOL jbehar@hsplegal.com

Joshua Karsh HUGHES SOCOL jkarsh@hsplegal.com

Matthew J. Piers HUGHES SOCOL mpiers@hsplegal.com
C. Lee Reeves U.S. DEPARTMENT OF JUSTICE lee.reeves@usdoj.gov

Shiu-Ming Cheer NATIONAL IMMIGRATION LAW CENTER cheer@nilc.org
Jill Z. Julian ASSISTANT U.S. ATTORNEY Jill.Julian@usdoj.gov

s/Betsy M. Isenberg Betsy M. Isenberg Deputy Attorney General

Office of the Indiana Attorney General

Indiana Government Center South, 5th Floor

302 W. Washington Street

Indianapolis, IN 46204

Telephone:

(317)232-6231

Fax:

(317)232-7979

E-mail:

betsy.isenberg@atg.in.gov

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 Case 1:11-cv-00708-SEB-MJD Document 173 Filed 04/20/12 Page 1 of 23 PageID #: 1279

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION

INGRID BUQUER, et al.,

)

)

Plaintiffs,

)

)

v.

)

)

CITY OF INDIANAPOLIS, et al.,

)

)

Defendants.

)

No. 1:11-cv-0708 SEB-MJD

PLAINTIFFS’ REPLY IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT

INTRODUCTION

But for the issuance of a prelim inary injunction in this cause (ECF No. 79), the pla intiffs

and the certified class es would be subject to th e challenged provisions of Senate Enrolled Act

590 (“SEA 590”). They would therefore be su bject to Section 20 of SEA 590 (codified at

Indiana Code § 35-33-1-1(1)(a)(11)–(13)), whic h permits local law enforcem ent officials in

Indiana to arrest persons if the officer has a detainer or notice of action issued by the Department

of Homeland Security or a removal order issued by an immigration court concerning the persons

(despite the fact that these no tices are not re motely indicia of a criminal offense) or if the

officials have probable cause to believe that the persons have been convicted or indicted in the

past for a list of crim es identified by fede ral law as “aggravated felonies” (although pas t

convictions or indictm ents certainly do not amount to probable cause concerning current

offenses). They would also be subject to Se ction 18 of SEA 590 (codified at Indiana Code § 34-

28-8.2-1, et seq.), which m akes it an offens e, an infr action, to use or accept a consular

identification card, issued pursu ant to the sovereign power of a foreign governm ent, for any

identification purpose.

Page | 1

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In arguing against the plaintiffs’ summary judgment motion and memorandum (ECF Nos. 122-123) the Marion and Johnson County Prosecutors (“the State”) offer no cogent argum ents that justify this Cour t reversing its preliminary conclusions that the ch allenged provisions are unconstitutional and preempted. See Buquer v. City of Indianapolis , 797 F. Supp. 2d 905 (S.D. Ind. 2011). Summary judgment should issue in favor of the plaintiffs.1
CLASS CERTIFICATION In the introduction to its m emorandum, and unmentioned elsewhere, the State appears to argue that not all of the claim s in this case ar e brought on behalf of the t wo (2) certified classes that it stipulated to. No text ual support for this argum ent is provided, and the argum ent is therefore waived. Harper v. Vigilant Ins. Co. , 433 F.3d 521, 528 (7 th Cir. 2005) (arguments not properly presented in response to summary judgm ent are waived). Regardless, the order certifying the classes in this cas e notes that Class A consists of persons in Marion and Johnson Counties who have, or will hav e, removal orders, detainers, or notices of action, or who have been convicted or indicted for at least one aggr avated felony. (ECF Nos. 84, 129). The facts are undisputed that Ms. Buquer has received notices of actio n, Mr. Urtiz was convicted of an aggravated felony, and Ms. Adair has received notices of actions and has an outstanding removal order issued against her. (ECF Nos. 56-1, ¶¶ 3-4; 41-2, ¶¶ 2-5; 41-3, ¶¶ 2-3). In certifying Class A this Cour t noted that the law or fact common to the class is whether th e statute, “which provides law enforcement with discretion to arrest individuals with a no tice of action, detainer ,

1

The State has not filed a cross-motion for summary judgment. Nonetheless, in response to the plaintiffs’

summary judgment motion it requests the judgment be entered in its favor. (See ECF No. 172, at 1, 33). Pursuant to

Rule 56(f) of the Federal Rules of Civ il Procedure, the Court may not enter judgment in favor of a n onmovant

without affording notice and an opp ortunity to respond. Insofar as the State has not included i n its brief a

“Statement of Material Facts Not in Dis pute”—instead deciding to intersperse references to its evidentiary

submissions throughout the body of its argument—the plaintiffs do not waive their right to this notice and

opportunity to respond. Absen t a su ccinct statement of the facts th at the State b elieves necessary to entitle it to

judgment, the plaintiffs have been left in the dark as to which of the State’s facts should be controverted.

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or removal order, is preem pted by Federal la w and is unconstitutional. (ECF No. 84, 121). Somehow based on this the State argues that “[t] he Fourth Amendment . . . challenge [raised concerning Class A] are only raised by Buquer, Adair and U rtiz,” and presumably not the class. (ECF No. 172, at 2). T he State makes this argument despite sti pulating that the claims of the representative parties, identified as plaintiffs Buquer, Adair and Urtiz, are typical of the class and that they will fairly and adequately represent the class. (ECF Nos. 39, ¶¶ 2-3; 82, ¶¶ 2-3, 121 ¶¶ 4-6), and despite the clear statem ent that the cha llenge is to whether the provision is preempted by Federal law and is unconstitu tional, which certainly encompasses the Fourth Amendment challenge. The State has also admitted in its Answer, filed after the class stipulation, that “there are questions of law or fact common to the proposed class including: (1) whether SEA 590 violates the Fourth A mendment of the U. S. Constitution; and (2 ) whether S EA 590 is preempted.” (ECF No. 1, ¶16; ECF No. 86, ¶ 16).2
The State d oes note that the stipulated-to description of common quest ions in Class A, while referring to both preem ption and unconstitu tionality, omits reference to aggrava ted felonies, although that is certainly referred to in the class definition. The Seventh Circuit has noted that “the m ost important part of . . . [t he class certification] or der is the pla ce where it defines the class,” Spano v. The Boeing Co. , 633 F.3d 574, 583-84 (7 th Cir. 2011), so the significance of the omission of all the aspec ts of the unconstitutionality of the statute subsumed within commonality is not clear and is not elucidated in any way by the State. Moreover, the

2

Perhaps the State is saying that in order to inform it of the precise sc ope of the class’s claims the order of

class certification should state that the common question of law or fact is whether the statue is “preempted by federal

law or unconstitutional.” To suggest that the State somehow did not understand that both the preemption and Fourth

Amendment argument are within the class claims is curious given the State’s admission in its answer as well as th e

litigation posture of the parties over the last year. On a more scholarly plane, inasmuch as the Supremacy Clause

does not secure a specific con stitutional right, the fact that a state law is p reempted and unconstitutional refers to

two separate substantive problems. See, e.g., Chapman v. Houston Welfare Rights Org., 441 U.S. 600, 614 (1979)

(noting that a th ree-judge district court hearing cases concerning the “unconstitutionality” of state sta tutes

necessarily excludes case s based on the Suprem acy Clause, but instead includes only cases base d on s ubstantive

provisions of the Constitution) (citing Swift & Co. v. Wickham, 382 U.S. 111 (1965)).

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Seventh Circuit has stressed that Rule 23(c)(1)(B ) of the Federal Rules of Civil Procedure, requiring definition of the class and the class claim s and issues requires onl y that the claims and issues be “readily discernible from the text eith er of the certification order itself or of a n incorporated memorandum opinion.” Ross v. RBS Citizen s, N.A., 667 F.3d 900, 905 (7 th Cir. 2012) (internal quotation and citation omitted). The State does not argue that the class claims are not readily discernible.
Similarly, the State argues that the due process challenge to Indiana Code § 34-28-8.2-1 is “raised only by Buquer, Adair an d Urtiz” (ECF No. 172 at 2), again because the certificatio n order for Class B states that the common questi on of law or fact is whether the s tatute “is unlawful, is preempted by Federal law and is unc onstitutional.” (ECF No. 84). Once m ore, no further argument is made. Again, the State ign ores the fact that in its Answer it a dmitted that Class B, represented by Ms. Buquer, presents common questions “including: (1) whether SEA 590 is preempted by the U.S. Constitution and federal law and (2) whether SEA 59 0 violates the Due Process Clause of the U.S. Constitu tion,” and it ignores the fact th at, for the reasons noted above, the common legal claims are “readily discernible” from the text of the certification order. Ross, 667 F.3d at 905.3
ISSUES CONCERNING THE FACTS The State includes in its response brief a lengthy recitation of facts that it believes to be both material and in dispute. ( See ECF No. 172, at 3–7). The facts that it recites, however, are

3

As noted by the State, Ms. Buquer has now receive d her employment authorization card. The State’s

counsel was informed of this on the same day that plaintiffs’ counsel became aware of this. Shortly thereafter Ms.

Buquer received a Notice of Action approving her U-Nonimmigrant Status and this information has also been sent to

the State’s counsel. Pursuant to the Protective Order in this case (ECF No. 67), these documents will be filed under

seal on this date and the Statement of Material Facts Not in Dispute in plaintiffs’ original memorandum (ECF No.

123, at 4) should be deemed to be am ended. This in no way affects Ms. Buquer’s ability to represent the class. In

any event, given that the class was certified months ago, anything affecting Ms. Buquer does not affect the

justiciability of the case. See, e.g., Sosna v. Iowa, 419 U.S. 393, 402 (1985) (The “case or controversy” requirement

of Article III may exist, however, between a named defendant and a member of the class represented by the named

plaintiff, even though the claim of the named plaintiff has become moot.”).

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either not material or not in dispute or both.

I.

FACTS CONCERNING THE PLAINTIFFS

Initially, although the State argu es that several f acts concerning the named plaintiffs are

disputed, it ignores the fact that this case has been certified as a class action. The State has

stipulated, and does no t challenge this stipulation, that, am ong other th ings, commonality,

adequacy, and typicality are m et. Supra. Given this, the individual fact s of the na med plaintiffs

are simply not material to this facial challenge. Regardless, the facts that the State claims to be

disputed are simply not in dispute.

Ingrid Buquer:

The State argues that there ex ists a disputed m aterial fact

concerning the frequency with which Ms. Buquer ut ilizes her consular identification card (CID).

(ECF No. 172, at 3). In support of this assertion, the State notes that Ms. Buquer indicated in her

affidavit that she “regularly” utilizes her CID (ECF No. 56-1, ¶¶ 5–7), although in her deposition

she indicated that she did not use her CID on

a “regular day” (ECF No. 172-1, at 25).

Obviously, there is nothing inconsistent about using a CID regularly but not daily, and the

State’s apparent con tention to th e contrary is n ot well-taken. It is undisputed in this case that

Ms. Buquer regularly offers her CID when ba nking, shopping, and in other situations where

identification is required (including to consular officials). (ECF No. 56-1, ¶¶ 5–7). These other

situations include leasing an apartment and picking up her son’s medications from the pharmacy. (ECF No. 172-1, at 24–25).4

Berlin Urtiz and Louisa Adair:

The State n ext includes a lengthy recitation of the

deposition testimony of Mr. Urtiz and Ms. A dair in its statem ent of facts purportedly “in

4

Plaintiffs also do not dispute, as noted by the State, that as of February of this year, Ms. Buquer was able to

obtain a Mex ican passport. This in no way affects h er ability to continue in the case as a p laintiff and class

representative. See n. 3, supra.

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dispute.” (ECF No. 172, at 4–6). 5 While m ost of these facts woul d not be particularly relevant

to this case even if it were not a class action, th e plaintiffs do not disput e any of these facts and they therefore cannot serve to preclude the entry of summary judgment.6

II.

FACTS CONCERNING IMMIGRATION MATTERS

The portion of the State’s re sponse brief devoted to allege dly disputed facts concerning

“immigration matters” (ECF No. 17 2, at 6–7) again contains neither material nor disputed facts

(and consists prim arily of argum ent). Nonethel ess, the State asserts that “local detention

facilities have differing levels of cooperation with ICE.” (E CF No. 172, at 6–7). Its support for

this is a table appended to a FOIA response receiv ed from ICE officials. However, without any

explanation, this table is nothing more than gibberish: it contains the names and contact

information of only two (2) institutions in Porter County as well as columns for the entry of data

such as “RA Records,” “Ranking,” “Threshold ,” “Sub-Threshold,” “FBRECODE,” “Population

Density,” and “RankAOR.” (See ECF No. 172-7 [Exh. G], at 6–11).

III. FACTS CONCERNING CONSULAR IDENTIFICATION CARDS

Finally, in responding to the plaintiffs’ asser tions concerning CIDs, the State adm its that

5

The State argues that Ms. Adair’s removal order “has been superseded by subsequent federal decisions.”

(ECF No. 172, at 16 n.6). The precise “federal decisions” that the State references are not detailed, and it is not even

clear whether the State believes Ms. Adair’s removal order to have been superseded by occurrences in her o wn

immigration case or by since-issued case law. The lack of elaboration dooms this argument at the outset, for it is

waived. Regardless, the plaintiffs assume that the State is simply reiterating its argument—advanced on preliminary

injunction—that Ms. Adair’s removal order has been superseded by her Order of Supervision. (ECF No. 63, at 9–

10). As the plaintiffs previously pointed out, an “order of supervision” does not “supersede” a removal order; rather,

it merely imposes conditions on an individual’s release, and is made “pending removal.” (See ECF No. 65, at 9–10

[citing 8 U.S.C. § 1231(a)(3)]). This Court previously detailed the errors in the State’s assertion, and the State now

adds nothing new to its argument. See Buquer, 797 F. Supp. 2d at 916 (“Defendants’ characterization is in e rror,

however, because, rather than superseding a removal order, an order of supervision is issued ‘pending removal’ and

merely imposes conditions on an individual’s release in cases where the person neither leaves nor is removed within

the statutory period.”).

6

Elsewhere, the State notes that Ms. Adair has never been asked by law enforcement to provide her removal

order, nor been arrested because she has an outstanding removal order. (ECF No. 172, at 16). Of course, given this

Court’s injunction, issued prior to the effective date of the statute, there is no reas on for law enforcement ever to

have made this inquiry.

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Sergio Aguilera is qualified to testify as to the reliability of and procedures surrounding Mexican

CIDs; however, it insists that he lacks knowledge as to the reliability of CIDs issued by other

foreign governments or the procedures for issuing CIDs to non-Mexican foreign nationals. ( See

ECF No. 172, at 7). The plaintiffs concede th at former-Consul Aguilera is only qualified to

provide testimony concerning the Mexican CID. However, the S tate never explains the

relevance of this observation: certainly it is not relevant to the plainti ffs’ preemption claim, and

as set forth below it is also not relevant to their substantive due process claim. Regardless, there

are simply no facts in dispute related to CIDs.

ARGUMENT

I.

INDIANA CODE § 35-33-1-1(A)(11-13), WHICH ALLOWS ARREST FOR NO N-CRIMINAL

IMMIGRATION RELATED MATTERS VIOLATES THE FOURTH AMENDMENT AND IS PREEMPTED

BY FEDERAL LAW

A. The statute violates the Fourth Amendment

The plaintiffs of course agree, as the State reminds the Court, that s tatutes are presumed

constitutional. However, when a s tatute—as does this one—grants authority to law enforcement

to “‘arrest’ individuals for c onduct that all parties stipulate and agree is not crim inal,” see

Buquer, 797 F. Supp. 2d at 918, the presum ption is easily overcome. This is not “hyperbole,” as

the State asserts (ECF No. 172 at 21): it is the text of the statute. The only escape from the

inevitable conclusion that this Court reached in its preliminary injunction decision is for the State

to once again argue, in various ways , that the s tatute does not mean what it says an d that it will

be used only if there is other probable cause to arrest a person. Sim ply put, “this interpretation

[is] entirely fanciful . . . given that it com pletely ignores the plain language of the statute.”

Buquer, 797 F. Supp. 2d at 918.

The State finds significance in the fact that the statute grants discretionary authority to

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law enforcement to arrest persons without prob able cause, as opposed to m andating arrest, as well as in the fact that the statute requires that law enforcement have an actual removal order or notice of action o actual probable cause concerni ng indictment of conviction of an aggravated felony before the arrest is m ade. (ECF No. 172 at 21–22). The signif icance of this is not explained. Certainly, as far as discretion is con cerned, “[i]t is the high office of the Fourth Amendment to co nstrain law enforcem ent discretion,” Hedgepeth ex rel. Hedgepeth v. Washington Metro. Area Transit A uth., 386 F.3d 1148, 1159 (D.C. Ci r. 2004), and the State gains nothing from its discretion argument.
The State argues that th e fact that the statu te requires th at law enforcem ent “have” th e documents is a “ higher standard than probable cause.” (ECF No. 172 at 14) (em phasis in original). T his misses the rather obvious point that, even if “h ave” is interpreted as physical possession only, having a notice of action or a re moval order does not equate to lawful cause under the Fourth Amendment to arrest anyone for anything. “[A]n arrest is reasonable under the Fourth Amendment so long as there is probable cause to believe that some criminal offense has been or is being comm itted.” Fox v. Hayes , 600 F.3d 819, 837 (7 th Cir. 2010) (emphasis in original) (citing Devenpeck v. Alford, 543 U.S. 146, 153–56 (2004)).
The State’s argument that the text of the statute must be in terpreted as requiring that the officer have the actual rem oval order, notice of action, or detainer pr ior to the arr est, is undermined by the fact that Indiana courts have not hesitated to allow arrests under com parable situations when the officer had knowledge of a document, as opposed to the document itself. For example, Indiana Code § 35-33-1-1(a)(1) perm its the arrest of a person when an officer “has a warrant commanding that the person be arrested.” Yet, cases are legion allowing arrests when the officer has knowledge of the warrant, without possessing it. See, e.g., Shotts v. State , 925
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N.E.2d 719, 721 (Ind. 2010) (Indiana arrest based on computer search revealing outstanding arrest warrant in Alabama); Nolan v. City of Indianapolis , 933 N.E.2d 894, 898 (Ind. Ct. App. 2010) (arrest lawful when based on a “reasonable be lief” that an individua l “was the subject of [an] arrest warrant”), trans. denied; Bush v. State , 925 N.E.2d 787, 788 (Ind. Ct. App.) (arrest based on computerized search at scene of a tra ffic stop revealing outstanding arrest warrants of a vehicular passenger), clarified on reh’g, 929 N.E.2d 897 (Ind. Ct. App. 2010); Rice v. State, 916 N.E.2d 296, 299 (Ind. Ct. App. 2009) (arrest based on knowledge of outstanding arrest warrant), trans. denied.
Moreover, even if possession of the documents were required, law enforcement officials could easily obtain them. First (and aside from the obvious fact that all defendants have been provided with copies of these documents through discovery in this case), docum ents contained within individuals’ immigration files are subjec t to request under the F reedom of I nformation Act (FOIA), 5 U.S.C. § 552, et seq. See, e.g., Cooper v. Exec. Office for Immigration Review , 694 F. Supp. 1278, 1279–80 (S.D. Tex. 1988); Badran v. U.S. Dep’t of Justice , 652 F. Supp. 1437, 1440 (N.D. Ill. 1987). Second, even without a FOIA re quest, both immigration hearings and immigration files are open to an d accessible by the public (subject to certain limitations and exceptions).7 Third, the State’s argum ent does not begin to account for the plethora of less formal manners in which a law enf orcement officer might obtain either an immigration-related document or knowledge that such a docum ent exists, which range from simply asking an individual (or a third party, such as immigration personnel) if s/ he has such a docum ent (or to obtain a copy of it) to viewing the docum ent on the passenger seat of a parked veh icle or in the

7

See 8 C.F.R. § 1003.27 (immigration hearings); 8 C.F.R. § 1003.31(d) (permitting filings under seal, a clear

indication that filings are ot herwise public); cf. Cooper, 694 F. Su pp. at 1279–80 (“The government has already

begun to implement a co mputerized system th at will en able the public to retrieve [immigration] case files b y an

alien’s name.”).

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hands of a person leaving an imm igration attorney’s office (or th e immigration court). And, of course, to the extent that the statute focuses on past convictions or in dictments for aggravated felonies, this information is easily o btainable by law enforcement if a crim inal history check is run, presumably even from a mobile vehicle. (ECF No. 172-5, ¶ 5).8
The point is that the infor mation and stat uses articulated in Indiana Code § 35- 33-11(a)(11)–(13) are obtainable by and will be known to law enforcement and, without the injunctive power of this Court persons will be subject to arrest for non-criminal behavior. Nothing more need be shown to establish a Fourth Am endment violation. Fox, 600 F.3d at 837.
B. The statute is preempted by federal law Without referencing the fact that this Court has already resolved all legal issues presented by this case, the State nonetheless argues that its warrantless arrest provisions are not preempted by federal law. It is clear that these provisions “alter[] th[e] balance [struck by federal law] by authorizing the arr est for immigration matters of individuals within the State of Indiana only whom, in many cases, the federal governm ent does not intend to be detained.” Buquer, 797 F. Supp. 2d at 921–22. The State has presented no compelling reason to revisit this decision. In arguing that Indiana Code § 35-33-1-1(a )(11)–(13) is not pree mpted by federal law,

8

This citation is to a declaration submitted by the State from th e Porter County Prosecutor. The utility of

this declaration to the State’s position is no t immediately apparent in that it, th e declaration of the “Extradition

Coordinator” of the Indiana Department of C orrection (“DOC”) (ECF No. 172-6), and documents produced

pursuant to the Freedom of Inf ormation Act (ECF No. 172-7) appear to be use d by the State to creat e the

contradictory argument, advanced in different portions of the State’s memorandum, that (a) it routinel y cooperates

with federal officials but (b) it has no way to access immi gration-related documents. Moreover, the Prosecutor’s

substantive assertion is th at persons in Porter County are arrested “based on ha ving probable cause that the

individual committed the offense arrested for”—in other words, they are arrested for any of the reasons permitted by

Indiana law that h ave not been preliminarily enjoined by this Court. See IND. CODE § 35-33-1-1(a)(1)–(10). It is

also curious that the State defendants in this case—the prosecutors of Marion and Johnson counties—have chosen to

rely for a prosecutorial affidavit on one submitted by the prosecutor of Po rter County, rather than their own

affidavits as to their offices. Therefore, an assertion by the Porter County Prosecutor that “[t]o my knowledge, law

enforcement in Porter C ounty has not received removal orders or notices of action from the federal government or

from anybody” (ECF No. 172-5, ¶ 4 ), is of t angential interest in this case t hat consists of a cl ass exclusively of

persons in Marion and Johnson counties. Moreover, given this Court’s preliminary injunction before the law

became effective there was, and currently is, no need for law enforcement to seek or receive this information.

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the State barely raises an actual preemption argument. Rather, its arguments are almost entirely limited to issues related to the interpretation of the challenged provisions. As already indicated, the State’s proposed reading of th e challenged statutory provisions is both strained and counterintuitive—and at odds with the pl ain language of the statute (and th e State neglects to consider that the statute will be interpreted by law enforcement officers in the field).
One theme running throughout its preem ption argument, however, is its notion that the State simply wishes to “cooperate” with federal officials and that, inexplicably, this desire allows it to create a statute that may run directly counter to federal purposes. Initially, the statute that is challenged in this case does not require any cooperation with federal officials for its enforcement: as the plaintiffs have argued at len gth (and as the Court has previously held), the fundamental flaw in the statute is that it authoriz es the arrest of individuals sim ply because they are involved in the immigration system , even though their involvem ent may be not hing more than applying for a visa, and even though the fe deral government does not desire that they be detained. See id. at 919–22. This is not “cooperation” in any sense of the word.
Regardless, the State attem pts to fi nd support for its exceedingly bro ad definition of “cooperation” in 8 U.S.C. § 1357( g)(10), which si mply provides that state and local officials need not enter into a formal agreement with the Attorney General in order to “cooperate with the Attorney General in the identification, apprehension, detention, or removal of aliens not lawfully president in the United States.” (See ECF No. 172, at 13). But by its plain terms, § 1357(g)(10) does not affirmatively provide auth ority for state or local officer s to engage in any immigration enforcement activity. And indeed, the State’s sweeping interpretation of § 1357(g)(10) as somehow authorizing s tates to ena ct unilateral legislation on i mmigration enforcement would render superfluous the specific INA provisions providing lim ited authority for state and local
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immigration enforcement in specified circumstances. See, e.g., 8 U.S.C. § 1103(a)(10) (allowing
Attorney General to a uthorize local authorities to exercise immigration responsibilities if
Attorney General determines there is “an actual or imminent mass influx of aliens” threatened; 8
U.S.C. § 1357(g)(1) (allowing the Attorney General to enter into written agreements with states
or political subdivisions, if the Attorney G eneral determines that the agreeing parties are qualified to perform immigration functions); United States v. Arizona, 641 F.3d 339, 349 (9th Cir.
2011) (“Giving subsection (g)(10) the breadth of its isolated meaning would completely nullify
the rest of § 1357(g), which dem onstrates that Congress intended for state officers to aid in
federal immigration enforcement only under pa rticular conditions, in cluding the Attorney
General’s supervision.”), cert. granted.
Further, the State’s position is inconsistent with th e U.S. Department of Homeland
Security’s own interpretive guidance on the type of permissible cooperation by local officials:
The term “cooperate” . . . m ean[s] the rendering of assistance by state and local officers to f ederal officials, in th e latter officials’ enforcem ent of the INA [Immigration and Nationality Act] , in a manner that maintains the ability to conform to the policies and priorities of DHS and that ensures that individual state and local officers are at all tim es in a position to be—and, when requested, are in fact—responsive to the direction and guida nce of federal offi cials charged with implementing and enforcing the immigration laws.
U.S. Department of Homeland Security, Guidance on State and Local Governm ents’ Assistance in Immigration Enforcement and Related Ma tters (“DHS Guidance”), at 8 (emphasis omitted).9
In the United States’ view, this requires that “DHS . . . have exclus ive authority to se t

9

This publication is available at https://www. dhs.gov/xlibrary/assets/guidance-state-local-assistance-

immigration-enforcement.pdf (last visited Apr. 11, 2012). Curiously, although the State cites the publication for a

general purpose statement (see ECF No. 172, at 13–14), it do es not mention that the publication offers an

interpretation of the very statute that forms the basis for its argument. This interpretation is no doubt entitled to at

least some deference under United States v. Mead Corp., 533 U.S. 218, 234 (2001), and Skidmore v. Swift & Co.,

323 U.S. 134, 139–40 (1944). See United States v. South Carolina, __ F. Supp. 2d __, 2011 WL 6973241, at *19

(D.S.C. Dec. 22, 2011) ( finding that the DHS Gu idance “comports with the overall structure of the INA” and

affording it d eference), appeal pending. The State has not argue d to the co ntrary, and i t has not argued that the

federal government’s interpretation of the INA is unreasonable.

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enforcement priorities” and that al l “[s]tate or local laws or actions [be] responsive to federal

control or direction.” Id. Nothing in f ederal law “gives state or local officials authority to . . .

investigat[e] [or] apprehen[d] . . . aliens in ways that are not c oordinated with and responsive to

federal authorities and discretion.” Id. at 11. Local cooperation, therefore, might include

participation in jo int federal-state task forces, assistance in the ex ecution of federal warrants ,

seizing an individual where independent stat e-law grounds exist for doing so, and sharing

information with federal officials for purposes authorized by law.. Id. at 13–14. However, no

reasonable interpretation of “c ooperation” could include the cr eation of independent “state

prohibitions” or “sanctions” for conduct within the scope of the Immigration and National or for

a suspected violation of federal immigration law . Id. at 14. Indiana’s law goes far beyond the

“cooperation” addressed in § 1357(g)(10).

The statute relied upon by the S tate (8 U.S.C. § 1357(g)(10)) thus does not “contem plate

a locality enacting its own scheme of immigration enforcement . . . to d eal with illegal aliens in

whatever manner the locality deems fit.” Villas at Parkside Partners v. City of Farmers Branch, Tex., __ F.3d __, 2012 WL 952252, at *9 (5 th Cir. Mar. 21, 2012); see also, e.g. , 8 U.S.C. §

1357(g)(3) (requiring that any stat e or local cooperation in immigr ation enforcement “be subject to the direction and supervision of the Attorney General”).10 This, however, is precisely what the

State has done: it has authorized the arrest of indivi duals who are not deta inable under federal

law or who the federal government has no desi

re to detain. The State’s protestations

10

In addition to 8 U.S.C. § 1357(g)(10), the State for its preemption argument also relies on 8 U.S.C. § 1373,

which concerns information-sharing between state and local officials and the federal government. ( See ECF No.

172, at 21). Again, the State does not appear to recognize that this argument severely undercuts its assertion that

local officials will not ha ve access to im migration-related information. More over, there is clea rly a fundam ental

distinction—unaddressed by the State—between simply sharing information and actually arresting individuals that

the federal government does not desire detained and who are not detainable.

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notwithstanding, the statute is preempted.11

II.

THE STATUTORY PROV ISION PREVENTING THE USE OR ACCEPTAN CE OF CONSULAR

IDENTIFICATION CARDS AS IDENTIFICATION (INDIANA CODE § 34-28-8.2-1, ET SEQ.) IS

PREEMPTED AND IS UNCONSTITUTIONAL

A. This provision is preem pted given that it represents a profound and significant interference in foreign affairs and relations

The State’s argument against the preem ption of the provision outlawing the use or

acceptance of CIDs m ay be summ arized in a s ingle sentence: “this provision does not possess

11

The State laboriously addresses each of the three (3) sub-sections of Indiana Code § 35-33-1-1(a)(11)–(13),

arguing that the language of the sub-sections must be interpreted contrary to its plain meaning in order to counteract

what the State app arently recognizes to be serious constitutional deficiencies. There is no need to d issect each

effort. It is enough to note, as the Seventh Circuit has stated (and as this Court in its preliminary injunction decision

noted), that “a federal court may not slice and dice a state law to ‘save’ it; we must apply the Constitution to the law

the state enacted and not attribute to the state a law we could have written to avoid the problem.” K-S Pharmacies, Inc. v. Am. Home Prods. Corp., 962 F.2d 728, 730 (7th Cir. 1992); see also Buquer, 797 F. Supp. 2d at 918 (quoting

K-S Pharmacies).

An example of the dramatic re-writing of the statute that is encouraged by the State will suffice: the State argues that the reference in Indiana Code § 35-33-1-1(a)(12) to “a detainer or notice of action” actually refers to a si ngle document. ( See ECF No. 172, at 17–19). Ho wever, “or” m eans “or,” and the statute is clearly written in the disjunctive. This apparently is not enough for the State, for it continues its argument by asserting that, if the statute were to refer to multiple documents, the legislature would have included an article in front of both “detainer” and “notice of action”—“a detainer or a notice of action .” Of course, it is both entirely permissible and excee dingly common for a single article to modify multiple nouns that are listed in the disjunctive (or in the conjunctive). This is evident from another sub-section of the same statute, which permits an i ndividual’s arrest when an officer has probable cause to believe the person has committed “a battery resulting in bodily injury under IC 35-42-2-1 or domestic battery under IC 35-42-2-1.” I ND. CODE § 35- 33-1-1(a)(5) (emphasis supplied). The l ist of similarly worded statutes is virtually endless, and the first two (2) chapters of Title 35, Article 33 of the Indiana Code alone find the following (all emphasis supplied): “a domestic violence counselor, local family member, or friend” (IND. CODE § 35-33-1-1.5(a)(1)); “the firearm, ammunition, or deadly weapon” (IND. CODE § 35-33-1-1.5(b)(2), (c)); “the date and county” (IND. CODE § 35-33-2-2(a)(4)); “the day or night” (IND. CODE § 35-33-2-3(a)(3)); “the indictment or information” (IND. CODE § 35-33-2-3(c)); “the circuit court or superior court” (IND. CODE § 35-33-2-3(d)); and “an information or indictment” (IND. CODE § 35-33-2-5). Running out of ammunition, the State finally attempts to find relevance in the fact that som e notices of action are issue d by sub-agencies of DHS whereas the statute itself refers simply to DHS (the only example given is 8 C.F.R. § 214.14(c)(5)(i)(A), while other regulations concerning notices of action are not specific to any sub-agency of DHS, see, e.g., 8 C.F.R. § 204.5(n)(1) (related to visas); 8 C.F.R. § 214.2(e)(8)(iv)(B) (related to E-treaty status)). The State does not explain the re levance of this distinction, and it is entirely unremarkable that DHS regulations concerning immigration forms would make reference to the sub-agency (USCIS) responsible for processing immigration-related documentation and petitions, rather than the sub-agencies (CBP and ICE ) that possess largely law-e nforcement and tr ade-related functions. The State’s arguments clearly lack merit.

Finally, at one point in its argument the State cites the declaration of the DOC’s Extradition Coordinator in a futile attempt to argue that federal cooperation in providing information to State officials suffices to establish that the challenged statute is not preempted. (ECF No. 172 at 16). The contours of this argument are neither clear nor developed, for again there is a si gnificant disconnect between the provision by an ex ecutive agency of request ed information and the congressional expression that a person with a removal order or other documents may be arrested without a warrant by a non-federal official.
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foreign-policy implications, but rather concerns only intra-state identification requirements.” (See ECF No. 172, at 22–27). This is incorrect, and the State’s argument therefore founders at the outset. At no point does th e State even address the funda mental importance that CIDs possess both to foreign nations charged with assi sting and monitoring their own nationals and to foreign nationals who m ay possess no other form of identification and who rely on the CID to engage in a vast array of routine activities. ( See ECF No. 123, at 4, 7–11, 28). N or does the State address the congressional te stimony of a n official from the U.S. Departm ent of State outlining the manner in which actio n against CIDs is likely to impact dramatically on national interests. (See ECF No. 123, at 29–30). The “kind of stat e involvement in foreign affairs and international relations—matters which the Constitution entrusts solely to the Federal Government”—that is invol ved here simply “is not sanctioned” by pr ecedent, see Zschernig v. Miller, 389 U.S. 429, 436 (1968), and the regulation of CIDs is not an intra-state issue.12
Nonetheless, the State argues that th e challenged CID provision does not contravene the obligations of the United States under the Vienna Convention on Consular Relations insofar as

12

The State attempts to bolster its argum ent by relying on the circuit courts’ decisions in Dunbar v. Seger-

Thomschitz, 615 F.3d 574 (5th Cir. 2010), cert. denied, 131 S.Ct. 1511(2011), and Museum of Fine Arts v. Seger-

Thomschitz, 623 F.3d 1 (1st Cir. 2010), cert. denied, 131 S.Ct. 2176 (2011)—both of which concerned generally

applicable state statutes or rules imposing limitations periods on certain claims. The State’s previous attempt to rely

on these decisions failed, see Buquer, 797 F. Supp. 2d at 923, and the State offers no new gloss on its argument. In

each of these cases, the court “found state laws not preempted which deal with matters of traditional state regulation

and had only an indirect impact on foreign policy.” Id. However, as this Court previously concluded,

[t]he problem with [the State’s] argument here is th at [the CID provision] is anything but a neutral law of general application that just happens to have a remote and indirect effect on foreign relations. Rather, it targets only one form of identification—CIDs issued by foreign governments. Moreover, [this provision] regulates CIDs in the broadest possible terms, restricting not just what state agencies may accept as valid identification but prohibiting what identification may be shown a nd accepted for purely private transactions. . . . Th ese sweeping regulations, targeted solely at foreign government-issued identification that consulates are, by treaty, entitled to issue, and which restrict the manner in which foreign citizens may travel, live, and trade in th e United States have a direct effect o n our nation’s interactions with foreign nations. Such interactions cannot be dictated or restricted by individual states.

Id. at 923–24. The State offers no compelling reason for this Court to revisit its previous conclusions. (See also ECF No. 65, at 17 [addressing Dunbar and Museum of Fine Arts]).

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this treaty “does not authorize countries to issue CIDs.” (ECF No. 172, at 24). While it is true that CIDs are not specifically m entioned in th e text of the Vienna Convention, this docum ent does authorize the issuance by foreign consulates of “appropriate documents,” the protection by consulates of foreign nationals, and the assist ance to and registration of foreign nationals. See Vienna Convention on Consular Relations a nd Optional Protocol on Disputes (“Vienna Convention”), Dec. 14, 1969, art. V(a),(d)–(f), 21 U.S.T. 77, available at 1969 WL 97928. The plaintiffs have previously deta iled the manner in which the issuan ce of CIDs is fundam ental to the ability of a consulate to fu lfill its obligations to foreign nationals (ECF No. 123, at 26–27), and the Congressional Research Service has published a report describing CID issuance as likely part-and-parcel of the Vienna Convention. See Congressional Research Services, Implications of the Vienna Convention on Consular Relations u pon the Regulation of C onsular Identification Cards, at CRS-3–5, available at http://www.fas.org/sgp/crs/misc/RS21627.pdf (last visited Apr. 11, 2012).13 “The issuance of identification documents is a function recognized as being am ong the powers exercised by consular officials by the Vienna Conve ntion on Consular Relations.” Risk v. Kingdom of Norway , 707 F. Supp. 1159, 1165 (N.D. Cal. 1989), aff’d sub nom. Risk v. Halvorsen, 936 F.2d 393 (9th Cir. 1991); see also Buquer, 797 F. Supp. 2d at 922 (“Issuing CIDs is one of the prerogatives of a foreign governm ent that is protected by the Vienna Convention o[n] Consular Relations.”).
The State attem pts to bolster its argum ent by noting that the federal governm ent has

13

The United Mexican States, as articulated in an amicus brief subsequently joined by four (4) other nations,

certainly recognizes the issuance of CIDs as protected by the Vienna Convention. (See ECF No. 76, at 4 [“Mexico

has issued {CIDs} to Mexican nationals living abroad for more than 130 years, as part of a rec ognized consular

function, codified since 1963 in the Vienna Convention on Consular Relations.”]; see also i d. at 5 n.6 [“By

outlawing the presentation of consular identification, SEA 590 . . . f rustrates compliance with treaty obligations.”];

ECF No. 41-4 [Aff. of former-Consul Aguilera], ¶ 8). To the extent that any dispute exists as to whether the

issuance of CIDs is protected by the Vienna Convention, this merely underscores that the dispute is one that must be

resolved at the national level.

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declined to enumerate CIDs as acceptable identification for various purposes. ( See ECF No. 172, at 25 & n.8). 14 However, it does not explain the rele vance of this f act, nor is its relevance apparent: throughout this case the plaintiffs have contended that the State may not regulate CIDs in the manner that it has chosen to do because the issue is one of international dimensions that is not susceptible to state-by-state prohibitions. Federal regula tion of CIDs m erely underscores that the United States of Am erica, and not the State of Indiana, plays a role in determ ining these international priorities, and the challenged statute is preempted.15
B. The CID prohibition is irrational and violates substantive due process Finally, in arguing that the CI D prohibition does not violate substantive due process, the State spends approximately two (2) pages of its m emorandum insisting that the f act that the plaintiffs have no liberty or property interest in the CID “doom s the Plaintiffs’ claims.” (ECF No. 172 at 27). Of course, a liberty or property interest is necessary for a procedural due process claim. See, e.g., Board of Regents of State Colleges v. Roth , 408 U.S. 564, 569 (1972). However, the plaintiffs have neve r claimed that the s tatute violates procedural due process. As

14

The State insists that this “implicitly question[s] the reliability and purposes of the [CID].” (ECF No. 172,

at 25). No support for this unwarranted assumption is provided, and former-Consul Aguilera’s testimony

concerning the reliability of the CID remains uncontroverted.

15

The State’s argument that its CID provision does not conflict with the regulations of the U.S. Department

of the Treasury (see ECF No. 172, at 24–25) is d ifficult to decipher. As indicated previously, these regulations

permit financial institutions t o accept as i dentification any “government-issued document evidencing nationality or

residence and bearing a photograph or si milar safeguard,” which includes CIDs. 31 C .F.R. §

1020.220(a)(2)(i)(A)(4)(ii); see also 68 Fed. Reg. 55335, 55336 (Sept. 25, 2006). The State argues simply that the

CID provision “does not stand as an obstacle to the implementation or execution of these regulations.” (ECF No.

172, at 24–25). This is plainly untrue: of course a statute prohibiting persons from using or accepting CIDs stands

as an obstacle to a federal regulation permitting their use and acceptance. See Buquer, 797 F. Supp. 2d at 923.

The State also provides the Court with a declaration from an official with the Indiana Department of Financial Institutions (DFI) (ECF No. 172-9 [Exh. I]), and insists that the DFI’s cooperation with federal authorities in various matters somehow bolsters its preemption argument. The r elationship between this declaration and the legal issues presented by this case is severely atten uated. The plaintiffs have no doubt t hat the St ate cooperates with federal authorities on issues suc h as investigating suspected money laundering (¶ 2), auditing financial institutions (¶ 7), sharing information (¶¶ 10, 19), engaging in mortgage-related activities (¶¶ 12–13), and reviewing alleged cyberterrorism (ECF No. 172, at 26). None of this is th e least bit relevant to the plaintiffs’ claim concerning the State’s prohibition on the use or acceptance of CIDs.
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this Court has already noted, the CID prohibition is not rational, see Buquer, 797 F. Supp. 2d at

924, and a statute that is not “rat ionally related to legitim ate government interests” violates

substantive due process, see, e.g., Washington v. Glucksberg , 521 U.S. 702, 728 (1997). This

statute violates substantive due process.

The State repeated ly asserts that the stat ute is rational b ecause there is a leg itimate

government interest in ensuring re liability of identification used by individuals within the State

of Indiana. But, the State of Indiana prohibits no other forms of identification that persons m ay

wish to use in private transactions, and allows such things as a doctor, hospital or credit card bill,

an insurance policy, a motor vehicle paym ent book, or a pay stub (as well as other item s) as

proof of residency that m ay assist a person in obta ining a driver’s license or identification card.

IND. ADMIN. CODE tit. 140, r. 7-1.1-3(b)(4). What is the legitimate government interest that is

served by allowing a m otor vehicle paym ent book to assist with a form al state identification

requirement, but prohibiting the showing of an

identification card issued by a foreign

government at a convenience store, for exa mple, to prove that a person is older than 18 and therefore allowed to buy tobacco? There simply is none.16

Moreover, the State ig nores the real Catc h-22 in which the sta tute places foreign

nationals. One of the primary purposes of the CID is to assist and identify foreign nationals who

are stopped by law enforcement. (ECF No. 41-4, ¶ 12). When this happens the foreign national

will be asked to provide identif ication. Although the statute i mmunizes the police officer who

16

The State cites to congressional testimony in June of 2003 in support of the argument that the Mexican CID

is not reliable. (Doc. No. 172 at 30). However, this was prior to Governor O’Bannon’s 2003 letter recognizing that

“[t]he matricula contains security features that generally give it a high degree of reliability.” (ECF No. 41-4, first

attachment). Subsequently, both Governor Kernan and Governor Daniels continued to recognize the Mexican CID.

(Id., ¶ 5). Moreover, the Mexican CID features a digital photograph taken at the consulate, fingerprints that are kept

in a national database, and is no t issued without documentary identification. (ECF No. 172-4, at 11 –13).

Fingerprinting is not necessary in order to obtain an Indiana license or identification card. See IND. ADMIN. CODE

tit. 140, r. 7-1.1-3 (listing requirements to obtain a license, permit or identification card in Indiana).

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asks for the identification in th e course of a crim inal investigation, the person who shows the officer his or her CID, and thus “knowingly or intentionally offers . . . a consular identification as a valid form of identificati on” commits an infraction. I ND. CODE § 34-28-8.2-2(a),(b).17 Therefore, if the foreign-national u ses the CID for its precise purpose, he or she comm its an infraction. And, given that the police officer’s immunity extends only to acceptin g the CID during investigation of a crim e, if the of ficer asks f or identification during a n on-criminal investigation—to get the nam e of a witness at a traffic acciden t, for instance—the officer is committing an infraction as well.
The State does not deny that som e persons may not have actual or practical access to any other forms of identification. Som e foreign na tionals may, for whatever reason, not have a current passport from their country of origin. Moreover, as a pr actical matter, most persons do not carry their passports with them. Yet, Indiana has taken the extraordinary step of prohibiting, from the entire array of potential identification documents that individuals may possess, many of

17

The State points out that a number of places in its earlier memorandum the plaintiffs referred to violation of

the statute as a “crime.” It is not: it is an infraction, and counsel apol ogizes for the error. H owever, there is no

constitutional significance to th e distinction. Also not apparent is th e point that the State tries to make that the

person who shows (a nd presumably accepts) the CID is not guilty of the in fraction unless he or she does so

“knowingly and intentionally.” It is difficult to perceive a situation where a person will take an identification card

out of his or her pocket in order to produce identification and unknowingly or unintentionally offer it.

Finally, the State engages in a l engthy discourse addressing the plaintiffs’ argument that the use o f CIDs by foreign nationals at th e consulate itself is prohibited by the challenged provision. (See ECF No. 172, at 31–32). This point is tangential at best to the legal issues presented by this case. Reg ardless, the prevailing view is that a foreign consulate or embassy is the territory of the host country (although diplomatic norms constrain the host state from exercising authority within the consulate without the consent of the foreign state), and Indiana l aw therefore governs activities at the cons ulate. See, e.g., United States v. Corey, 232 F.3d 1166, 1182 (9th Cir. 2000) (citing 1 Oppenheim’s International Law § 494, at 1977 (9th ed. 1992)). T he State m erely cites cases sta nding for the undisputed proposition that some consular officials partake in diplomatic immunity (although many do not, see ECF No. 41-4 [Aff. of former-Consul Aguilera], ¶ 10) and foreign states may partake in sovereign immunity under specific circumstances. Howeve r far the se immunities extend, they do not ex tend so far as to p rotect foreign nationals who show their CIDs at the consulate. (The State also appears to seek solace in the fact that Indiana la w does not proscribe the use of foreign passports, see ECF No. 172, at 32; although clearly irrelevant, this argument also suffers from a significa nt logical fallacy in sofar as ph oto-identification is necessary to obtain a Mex ican passport [and presumably other foreign passports as well], see Embajado de México, Requirements for the issuance of a Mexican pass port, at http://embamex.sre.gob.mx/libano/index.php?option= com_content&view= article&id= 34&Itemid=32&lang=es [last visited Apr. 12, 2012], and many foreign nationals lack photo-identification other than their CID, see ECF No. 41-4 [Aff. of former-Consul Aguilera], ¶ 13.)
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which are undoubtedly less reliab le than a CID, only one iden tification document (which is prohibited in even purely private transactions)—the CID.
The plaintiffs are, of course, conscious of the fact that at the r ational-basis level, the scrutiny is deferential. However, a classification can be so “underinclusive or overinclusive as to be irrational.” United States v. Sampson, 275 F. Supp. 2d 49, 89 n.19 (D. Mass. 2003) (referring to a violation of equa l protection) (citing Burlington N.R. Co. v. Ford , 504 U.S. 648, 653–54 (1992)). This is not a case wher e this Court is being asked to fi nd that what th e legislature did was merely unwise. In stead, the statute pres ents the extraordinary case where a S tate has so drastically over-reached (or under-reached) as to be irrational and therefore violative of due process.18
CONCLUSION There are no disputed issues of m aterial fact in this case and the State’s response to plaintiffs’ arguments is unavailing. The challe nged statutes are preempted and unconstitutional on their face.19 Summ ary judgment should be entered fo r the plaintiffs and the previously entered preliminary injunction should be made permanent.
/s/ Kenneth J. Falk Kenneth J. Falk

18

As this Court n oted, the one explanation for the I ndiana General Assembly targeting only the CID is an

intent to single-out and target foreign nationals. This is hardly a rational constitutional justification. Buquer, 797 F.

Supp. 2d at 92 4. See also, e.g., Romer v. Evans, 517 U.S. 620, 633 (1996) (holding that a state co nstitutional

amendment that prohibits actions designed to protect homosexuals from discrimination was irrational, and therefore

violative of equal protection, despite low-level scrutiny).

19

Without making an argu ment supported by authority, the State notes in passing that inasmuch as the

plaintiffs’ claims are facial the claim s fail because “[c]learly, the facts presented show that there a re ways that the

law can be constitutionally applied.” (ECF No . 172, n.5). Th ere is n o further elucidation and the State does not

explain how statutes that are clearly preempted and clearly violate the Fourth Amendment and due process can be

constitutionally applied to an yone. A statute permitting the arrest of anyone wearing a purple shirt is facially

unconstitutional even though some persons wearing purple shirts may also be engaged in criminal activity. Here,

there are “no set of circumstances under which the [provisions] would be valid.” United States v. Salerno, 481 U.S.

739, 745 (1987).

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No.
No.
1031 Indianapolis, 317/635-4059 fax: kfalk@aclu-in.org grose@aclu-in.org
No.
One Indianapolis,

/s/ Gavin M. Rose 6777-49
Gavin M. Rose 26565-53
ACLU of Indiana E. Washington St. IN 46202
317/635-4105
/s/ Angela D. Adams Angela D. Adams
24959-49 LEWIS & KAPPES, P.C.
America Tower, Suite 2500 IN 46282-0003
Lee Gelernt, Pro Hac Vice Omar C. Jadwat, Pro Hac Vice Andre I. Segura, Pro Hac Vice AMERICAN CIVIL LIBERTIES UNION FOUNDATION IMMIGRANTS’ RIGHTS PROJECT 125 Broad Street, 18th Floor New York, New York 10004
Cecillia D. Wang, Pro Hac Vice Katherine Desormeau, Pro Hac Vice AMERICAN CIVIL LIBERTIES UNION FOUNDATION IMMIGRANTS’ RIGHTS PROJECT 39 Drumm Street San Francisco, California 94111
Linton Joaquin, Pro Hac Vice Karen C. Tumlin, Pro Hac Vice NATIONAL IMMIGRATION LAW CENTER 3435 Wilshire Boulevard, Suite 2850 Los Angeles, California 90010
Attorneys for Plaintiffs
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Case 1:11-cv-00708-SEB-MJD Document 173 Filed 04/20/12 Page 22 of 23 PageID #: 1300
CERTIFICATE OF SERVICE
I hereby certify that on this 20th day of April, 2012, a copy of the foregoing was filed electronically with the Clerk of this Court. The following parties will be served by operation of the Court’s electronic system:
Betsy M. Isenberg Deputy Attorney General betsy.isenberg@atg.in.gov
Wade Dunlap Fulford Deputy Attorney General wade.fulford@atg.in.gov
Patricia Erdmann Deputy Attorney General patricia.erdmann@atg.in.gov
Adam Clay Deputy Attorney General Adam.Clay@atg.in.gov
Justin F. Roebel Assistant Corporation Counsel jroebel@indy.gov
Alexander Will Assistant Corporation Counsel alex.will@indy.gov
William W. Barrett WILLIAMS BARRETT & WILKOWSKI, LLP wbarrett@wbwlawyers.com
Donald G. Banta Deputy Attorney General Donald.banta@atg.in.gov
Jefferson S. Garn Deputy Attorney General Jefferson.garn@atg.in.gov
Kenneth L. Joel
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Case 1:11-cv-00708-SEB-MJD Document 173 Filed 04/20/12 Page 23 of 23 PageID #: 1301

Deputy Attorney General Kenneth.joel@atg.in.gov
Lynette Gray JOHNSON GRAY & MacABEE vhunter@embarqmail.com lynng@embarqmail.com

/s/ Kenneth J. Falk Kenneth J. Falk Attorney at Law

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 Case 1:11-cv-00708-SEB-MJD Document 168 Filed 03/09/12 Page 1 of 15 PageID #: 1126

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION

INGRID BUQUER, BERLIN URTIZ, and LOUISA ADAIR, on their own behalf and on behalf of those similarly situated,
Plaintiffs, vs.
CITY OF INDIANAPOLIS, et al
Defendants.

) ) ) ) ) ) NO. 1:11-cv-00708-SEB-MJD ) ) ) )

Order
This matter is before the Court on Defendants Johnson County Prosecutor and Marion County Prosecutors’ (collectively “Defendants”) Motion Pursuant to Rule 56(d) of the Federal Rules of Civil Procedure [Dkt. 132], Defendants’ Motion for Extension of Time to File Responses to Motion for Summary Judgment [Dkt. 136], and Defendant City of Franklin’s Motion to Join Defendants’ Motion for Extension of Time to File Responses [Dkt. 144]. The Court hereby GRANTS the City of Franklin’s Motion to Join State Defendants’ Motion for Extension of Time to File Responses [Dkt. 144]. The Court also hereby GRANTS Defendants’ Motion for Extension of time so that Defendants will have thirty days from the date of this Order to respond to the Summary Judgment Motion. [Dkt. 136]. For the reasons discussed below, the Court DENIES Defendants’ Rule 56(d) Motion [Dkt. 132].
I. Background
This matter involves two provisions of the Senate Enrolled Act (“SEA”) 590. The first challenged provision, Section 20 of SEA 590, amends Indiana Code § 35-33-1-1(1) by giving
1

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state and local law enforcement officers discretion to make a warrantless arrest of a person when the officer has (1) a removal order for the person; (2) a detainer or notice of action for the person issued by the United States Department of Homeland Security (“DHS”); or (3) probable cause to believe that the person has been indicted for or convicted of one or more aggravated felonies. The second challenged provision, Section 18 of SEA 590, codified as § 34-28-8.2-1, et seq., creates a new infraction under Indiana law for any person who knowingly or intentionally offers or accepts a consular identification card (“CID”) as a valid form of identification for any purpose. Section 18 does not apply to law enforcement officers who are presented with a CID during an investigation of a crime.
On June 24, 2011, this Court granted Plaintiffs’ Motion for Preliminary Injunction and enjoined the Defendants from enforcing the two challenged provisions until further order from the Court. [Dkt. 79]. On November 20, 2011, Plaintiffs filed a Motion for Summary Judgment. [Dkt. 122]. In their Motion, Plaintiffs argue that Section 20 violates the Fourth Amendment to the United States Constitution by authorizing warrantless arrests with no probable cause to believe that a crime has occurred and that federal law preempts the provision. As to Section 18, Plaintiffs argue that federal law and treaties preempt the provision and that it violates the Fourteenth Amendment’s Due Process clause. This Court held a hearing on Defendants’ Motions on January 23, 2012 and on February 17, 2012 and took the Motions under advisement.
II. Legal Standard
Rule 56(d), provides as follows: If a nonm ovant shows by affidavit or decl aration that, for specified reasons, it cannot present facts essential to justify its opposition, the court may: (1) defer considering the motion or deny it; (2) allow time to obtain affidavits or declarations or to take discovery; or
2

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(3) issue any other appropriate order. Fed. R. Civ. P. 56(d). The nonmoving party is required to make a “‘good faith showing that it cannot respond ….’” Kalis v. Colgate-Palmolive Co., 231 F.3d 1049, 1058 n.5 (7th Cir. 2000) (quoting United States v. All Assets and Equip. of W. Side Bldg. Corp., 58 F.3d 1181, 1190 (7th Cir. 1995)). The nonmoving party’s Rule 56(d) affidavit should provide (1) what facts are sought and how they are to be obtained; (2) how these facts are reasonably expected to create a genuine issue of material fact; (3) what efforts the affiant has made to obtain those facts; and (4) why these efforts were unsuccessful. See Coward v. Town and Village of Harrison, 665 F. Supp. 2d 281, 301 (S.D.N.Y. 2009); see also Deere & Co. v. Ohio Gear, 462 F.3d 701, 706 (7th Cir. 2006); Reed v. Lawrence Chevrolet, Inc., 14 F. App’x. 679, 685 (7th Cir. 2001).
III. Discussion
Defendants argue that they need additional discovery to obtain facts necessary for their response to Plaintiffs’ Motion for Summary Judgment. At the time of the hearing on February 17, 2012, six items remained at issue. Defendant seek to depose two agents from the Office of Immigration and Custom Enforcement (“ICE”) and seek a Rule 30(b)(6) deposition of DHS. Defendants also seek responses to their Freedom of Information Act (“FOIA”) requests to DHS and the United States Department of State. The Court will address each item below.
A. Deposition of Immigration and Custom Enforcement (“ICE”) Agents
Defendants want to depose ICE agents Christopher Bryant and Gary Woolf. Agent Bryant is a field agent, while Agent Woolf is the Resident Agent in Charge for the Indianapolis Office, which Defendants believe covers the entire state of Indiana. Defendants seek similar information from each agent, Bryant from a field agent’s perspective and Woolf from a statewide perspective.
3

Case 1:11-cv-00708-SEB-MJD Document 168 Filed 03/09/12 Page 4 of 15 PageID #: 1129
1. Facts Sought According to Defendants’ affidavit, they seek information “regarding whether there is
enforcement of immigration laws in the State of Indiana.” [Dkt. 132 Ex. 1 at ¶ 12(c)]. At the hearing, Defendants purported to seek somewhat different and more expansive information from the agents. Defendants want to obtain information regarding how state and local law enforcement officers would know whether a person had a removal order, detainer, or notice of action.1 If state and local law enforcement officers receive these documents from ICE, Defendants want to know what other information is included along with these documents. Defendants also seek the ICE agents’ opinions on whether Section 20 conflicts with or poses an obstacle to federal law and how federal laws and Section 20 will interact. Lastly, Defendants focus on what enforcement efforts are being conducted in the State of Indiana and seek information regarding whether there are sufficient resources in Indiana for the enforcement of immigration laws, the number of individuals in Indiana that have removal orders or detainers, and whether the agents would like Indiana’s input and help on immigration matters. 2. How These Facts are Reasonably Expected to Create a Genuine Issue of Material Fact
Neither Defendants’ affidavit nor their brief in support of their Motion address how the facts sought from the ICE agents are expected to create a genuine issue of material fact. At the hearing, Defendants shed some light in this regard, but still failed to identify any material fact relevant to the pending Motion for Summary Judgment that might be put at issue by the agent’s testimony.
With regard to the Plaintiffs’ Fourth Amendment argument, Defendants contend that the facts they seek go toward the reasonableness of law enforcement’s actions, because only certain
1 The Court notes Defendants’ admission that they never sought this information from any state or local law enforcement officers. [February 17, 2012 Oral Argument at 1:54].
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notices would ever get to law enforcement officers. However, as already explained in the Preliminary Injunction Order, Defendants’ interpretation is “entirely fanciful … given that it completely ignores the plain language of the statute … [which] expressly provides that state and local enforcement officers ‘may arrest’ individuals for conduct that all parties stipulate and agree is not criminal.” [Dkt. 79 at 21]. Additionally, Plaintiffs’ argument is that Indiana can never enforce Section 20 constitutionally; therefore, how law enforcement officers obtain information regarding whether a person had a removal order, detainer, or notice of action is irrelevant to the pending Motion. As such, Defendants have not shown that the facts sought could reasonably create a genuine issue of material fact with regard to the pending Motion for Summary Judgment, because the facts sought would not affect the outcome of that Motion. See Fanslow v. Chicago Mfg. Ctr., Inc., 384 F.3d 469, 478 (7th Cir. 2004) (explaining that a fact is material if it might affect the outcome of the suit).
With regard to Plaintiffs’ preemption argument, it is Defendants’ theory that there would have to be cooperation between local law enforcement officers and federal agents and evidence of cooperation disputes Plaintiffs’ claim that Section 20 is an obstacle to federal immigration law. Defendants believe the ICE agents’ views regarding whether Section 20 conflicts with or poses an obstacle to federal immigration law will create a genuine issue of material fact regarding preemption.
The issue of preemption, however, is largely a legal question. Wisconsin Cent., Ltd. v. Shannon, 539 F.3d 751, 759 (7th Cir. 2008) (citations omitted). Defendants argue Wyeth v. Levine, 555 U.S. 555 (2009) supports their argument that courts should give some weight to an agent’s views regarding preemption. Defendant’s reliance on Wyeth is misplaced.
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In Wyeth, the Court found that in prior cases, “some weight” had been given to an agency’s views about the impact of tort law on federal objectives noting that
while agencies have no special authority to pronounce on pre- emption … they do have a unique understanding of the statutes they adm inister and an attendant ability to make inform ed determinations about how state requirem ents may pose an “obstacle to the accom plishment and execution of the full purposes and objectives of Congress.” Id. at 566-57. Defendants, however, cannot stretch Wyeth so far as to make the information they seek from ICE Agents Bryant and Woolf relevant to the preemption analysis. Neither agent speaks on behalf of ICE or DHS. Thus, Defendants have failed to show how the agents’ views could reasonably create a genuine issue of material fact with regarding to the pending Motion for Summary Judgment. Nor is Defendants’ focus on the resources devoted specifically to the State of Indiana material. Likewise, the number of people in Indiana with removal orders or detainers is not material. Defendants argue, “there is no evidence that the federal government is enforcing immigration law in the State of Indiana.” [Dkt. 133 at 3-4]. Thus, under Defendants’ theory of the case, there is no conflict or obstacle in the State of Indiana. Taking Defendants’ theory to its logical conclusion would mean that Section 20, while not preempted in Indiana, might be preempted in a state where more resources are devoted to enforcing immigration laws. Defendants’ argument on this point is fatally flawed. Preemption occurs through the “‘direct operation of the Supremacy Clause.’” Kurns v. Railroad Friction Products Corp., ---S. Ct. ---, 2012 WL 631857, at *4 (U.S. 2012) (quoting Brown v. Hotel Employees, 468 U.S. 491, 501 (1984)). Under the Supremacy Clause, federal law “‘shall be the supreme Law of the Land … any Thing in the Constitution or Laws of any State to
6

Case 1:11-cv-00708-SEB-MJD Document 168 Filed 03/09/12 Page 7 of 15 PageID #: 1132
the Contrary notwithstanding.’” Id. (quoting U.S. Const., Art. VI, cl. 2). Thus, preemption has a national effect and applies uniformly throughout the nation.
Accordingly, whether Section 20 poses an obstacle to enforcement of immigration laws requires an analysis of what occurs at the national level concerning enforcement of immigration laws, not merely what occurs in the State of Indiana. Defendants’ whack-a-mole approach to preemption is inconsistent with the Supremacy Clause because it would require a state-by-state analysis of whether preemption exists and would create a presumption that preemption could exist in some states and not others. Thus, Defendants have failed to show how information regarding the resources devoted to Indiana could reasonably create a genuine issue of material fact relevant to the pending Motion for Summary Judgment.
B. Rule 30(b)(6) Deposition of DHS
Nowhere in Defendants’ affidavit do they mention a Rule 30(b)(6) deposition of DHS. While this is discovery Defendants are free to conduct, Defendants have not complied with the requirements of Rule 56(d). For that reason alone, Defendants have failed to make a good faith showing that it cannot respond to the summary judgment motion without the Rule 30(b)(6) deposition of DHS. 1. Facts Sought
Even if this Court considers Defendants’ Rule 30(b)(6) deposition as properly within its Rule 56(d) Motion, Defendants still fail to satisfy Rule 56(d)’s requirements. At the hearing, Defendants argued that the Rule 30(b)(6) deposition will allow them to get additional information as to how DHS expects local officials to cooperate with the federal government and to gain facts necessary under Wyeth. Additionally, a Rule 30(b)(6) deposition will purportedly
7

Case 1:11-cv-00708-SEB-MJD Document 168 Filed 03/09/12 Page 8 of 15 PageID #: 1133
assist Defendants with authenticating documents from their FOIA requests, which Defendants concede they do not need to respond to the Motion for Summary Judgment. 2. How These Facts are Reasonably Expected to Create a Genuine Issue of Material Fact
While a Rule 30(b)(6) deposition arguably would, under Wyeth, allow Defendants to question the DHS designee about the agency’s view regarding the impact of Section 20 on federal immigration law, a Rule 30(b)(6) deposition would not create a genuine issue of material fact relative to the pending Motion for Summary Judgment. As explained in the Preliminary Injunction Order, the Immigration and Nationality Act (“INA”) “‘established a comprehensive federal statutory scheme for regulation of immigration and naturalization and set the terms and conditions of admission to the country and the subsequent treatment of aliens lawfully in the country.’” [Dkt. 79 at 3 (quoting Chamber of Commerce of U.S. v. Whiting, 131 S. Ct. 1968, 1973 (2011)]. As such, the INA empowers not only the DHS to administer and enforce immigration, but the Department of Justice (“DOJ”), and the Department of State, among other federal agencies. [Id.]. Because of the comprehensive nature of the federal statutory scheme, and the involvement of several federal agencies, Defendants have failed to show how one agency’s views regarding how that particular agency expects local officials to cooperate with the federal government on immigration could reasonably create a genuine issue of material fact.
Moreover, while the Wyeth Court noted that in prior cases it gave some weight to an agency’s view, it also stated that it did so only “[a]fter conducting our own pre-emption analysis” and that the agency’s view that the state law interfered with its regulation provided “further support for our independent conclusion that the plaintiff’s tort claim obstructed the federal regime.” Wyeth, 555 U.S. at 580. Thus, this Court must conduct its own preemption analysis and make its own independent conclusion regarding preemption. Any “support” the deposition
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Case 1:11-cv-00708-SEB-MJD Document 168 Filed 03/09/12 Page 9 of 15 PageID #: 1134
in question might provide would not create a genuine issue of material fact on any issue relating to the pending Motion for Summary Judgment.
C. FOIA Requests to DHS and Department of Justice (“DOJ”)
Defendants also argue they need information from their FOIA requests sent to departments within DHS and the DOJ.2 The first, marked exhibit B, was sent to the U.S. Citizenship & Immigration Services within the DHS. The second, marked exhibit F, was sent to the DOJ’s Civil Rights Division. Because both seek similar information and suffer from the same infirmities relative to the instant motion, the Court addresses them together. 1. Facts Sought
Both FOIA requests focus solely on information relating to the State of Indiana. For example, exhibit B requests the amount and allocation of funds for enforcement of immigration laws in the State of Indiana, number of personnel utilized exclusively for enforcement of immigration laws in the State of Indiana, and the number of unauthorized immigrant population currently in Indiana. Exhibit E requests similar information, but also requests the number of removal proceedings brought against aliens apprehended or domiciled in Indiana between 2008 and 2011, the number of detainers, and records related to illegal activities or crimes committed by undocumented or illegal aliens in Indiana. 2. How These Facts are Reasonably Expected to Create a Genuine Issue of Material Fact
At the hearing, Defendants argued, “[if] our statute is not an obstacle to what the federal government is doing within the State of Indiana, then this statute is not preempted under federal law.” [February 17, 2012 Oral Argument at 2:22]. As previously discussed, however, preemption is not determined on a state-by-state basis. Even if Defendants present evidence that
2 At the hearing, Defendants provided the Court with six FOIA requests the Court marked as Exhibits AF. Defendants reported that exhibits A and C were complete and that Exhibit D should be completed by February 24, 2012 leaving only Exhibits B, E, and F outstanding.
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Case 1:11-cv-00708-SEB-MJD Document 168 Filed 03/09/12 Page 10 of 15 PageID #: 1135
few resources are devoted to enforcing immigration in the State of Indiana that does not mean the federal government is doing nothing to enforce immigration. Moreover, efforts elsewhere, such as in states that border a foreign nation, have an impact on immigration in Indiana, something the State fails to consider. For example, many illegal aliens might never reach the State of Indiana because of efforts elsewhere. This is an example of why preemption must be considered on a national and not a state-by-state basis. Otherwise, each State receiving fewer federal resources could argue its laws are not preempted by federal immigration laws. As such, Defendants have failed to show that the information they seek could reasonably create a genuine issue of material fact regarding whether federal law preempts Indiana law.
D. FOIA Requests to the Department of State
Lastly, in Exhibit E, Defendants seek information relating to CIDs from the Office of Information Programs and Services within the Department of State. 1. Facts Sought
In their affidavit, Defendants state that they requested information about procedures and protocols for reviewing and monitoring the issuance of CIDs, the number of consulates and the countries with consulates in the United States, and information regarding fraudulent and counterfeit identification cards. [Dkt. 132 Ex. 1 at ¶ 8]. Additionally, Defendants seek information about the number of identification cards issued by the Department of State to United States citizens. [Id. at ¶ 10]. 2. How These Facts are Reasonably Expected to Create a Genuine Issue of Material Fact
According to their affidavit, this information is needed to “dispute the veracity of the assertions by former Consul Aguilar that consular identification cards are extremely difficult to forge and are not issued without a review of the background of the requesting individual.” [Id. at
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Case 1:11-cv-00708-SEB-MJD Document 168 Filed 03/09/12 Page 11 of 15 PageID #: 1136
¶ 9]. However, the information sought in Defendants’ FOIA request does not address those issues. The closest request is for information pertaining to the security and authenticity issues of CIDs. [Exhibit E at ¶ 6]. However, there is no evidence to suggest the Department of State would know whether the Mexican consulate, or any other consulate, issues CIDs without first reviewing the background of the requesting individual. Moreover, if Defendants want to present evidence regarding the difficulty of forging CIDs, they can hire an expert to give an opinion on the matter and do not need information from the Department of State.
Defendants also seek information regarding the number of counterfeit, fraudulent, or unauthorized CIDs confiscated by federal officials or law enforcement. [Id. at ¶ 5]. This request does not address what background reviews the consulate conducts, because counterfeit, fraudulent, or unauthorized CIDs are not originating from the consulate, hence their fraudulent nature. Nor does the number of confiscated CIDs address the difficulty of forgery. For example, officials could confiscate a large number of CIDs because they are so difficult to forge that counterfeits are easy to detect. Similarly, officials could confiscate very few CIDs, which could mean that there are few counterfeit or fraudulent CIDs, or it could mean counterfeit and fraudulent CIDs are difficult to detect. Thus, in disputing Consul Aguilar’s assertion regarding the difficulty of forging CIDs, it is meaningless to know the number of confiscated CIDs.
Furthermore, Plaintiffs’ summary judgment argument is that the State’s singling out of CIDs from all other forms of identification is irrational. [Dkt. 123 at 32]. Plaintiffs do not argue that Defendants lack any rational basis for concern; rather, the relevant issue is whether CIDs are more subject to fraud than other forms of identification. Nothing Defendants seek from the Department of State is likely to show that CIDs are any more or less reliable than any other form of identification.
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Case 1:11-cv-00708-SEB-MJD Document 168 Filed 03/09/12 Page 12 of 15 PageID #: 1137
At the hearing, Defendants argued that, under rational basis review, a legislature can enact piecemeal legislation, which can be over or under inclusive and that the legislature does not have to address every evil at one time. That argument certainly has support from case law. See, e.g., Ry. Express Agency, Inc. v. New York, 336 U.S. 106, 466 (1949) (“It is no requirement of equal protection that all evils of the same genus be eradicated or none at all.”); Sutker v. Illinois State Dental Soc., 808 F.2d 632, 635 (7th Cir. 1986) (explaining that legislatures may implement programs step-by-step). Defendants are free to make that argument in their response, but that argument requires no additional facts.
With regard to Plaintiffs’ preemption argument, Defendants have failed to show that the information sought from the Department of State could reasonably create a genuine issue of material fact relevant to the pending Motion for Summary Judgment. Plaintiffs argue that Provision 18 would negatively impact the United States’ treaty obligations and its foreign relations. The majority of the information Defendants seek goes to the issue of fraudulent CIDs. However, Defendants argue that information regarding the number of identification cards issued by the Department of State to United States citizens will assist them in “refuting the allegations that Indiana’s law will have international repercussions.” [Dkt. 132 Ex.1 at ¶ 11]. How this information might be helpful remains a mystery. Whether the United States has issued zero or millions of identification cards is immaterial. What is material is how foreign nations respond to those identification cards, if, and, when issued by the Department of State given enactment of Section 18. Therefore, Defendants have not shown how these facts could reasonably create a genuine issue of material fact relevant to the pending Motion for Summary Judgment.
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IV. Conclusion
For the above stated reasons, the Court hereby DENIES Defendants’ 56(d) Motion [Dkt. 132]. Defendants shall have thirty days from the date of this Order to respond to Plaintiffs’ Motion for Summary Judgment [Dkt. 122].

Dated: 03/09/2012

Distribution List:
Angela Denise Adams LEWIS & KAPPES aadams@lewis-kappes.com

Mark J. Dinsmore United States Magistrate Judge Southern District of Indiana

Donald G. Banta OFFICE OF THE ATTORNEY GENERAL donald.banta@atg.in.gov

William W. Barrett WILLIAMS HEWITT BARRETT & WILKOWSKI LLP wbarrett@wbwlawyers.com

Jose J. Behar HUGHES SOCOL PIERS RESNICK & DYM, LTD. jbehar@hsplegal.com

Shiu-Ming Cheer NATIONAL IMMIGRATION LAW CENTER cheer@nilc.org

Adam Clay INDIANA ATTORNEY GENERAL Adam.Clay@atg.in.gov

Katherine Desormeau AMERICAN CIVIL LIBERTIES UNION FOUNDATION kdesormeau@aclu.org

Patricia Orloff Erdmann OFFICE OF THE ATTORNEY GENERAL Patricia.Erdmann@atg.in.gov

Kenneth J. Falk

13

Case 1:11-cv-00708-SEB-MJD Document 168 Filed 03/09/12 Page 14 of 15 PageID #: 1139
ACLU OF INDIANA kfalk@aclu-in.org
Jefferson S. Garn INDIANA ATTORNEY GENERAL jefferson.garn@atg.in.gov
Lee Gelernt AMERICAN CIVIL LIBERTIES UNION FOUNDATION lgelernt@aclu.org
Lynnette Gray JOHNSON GRAY& MACABEE vhunter@embarqmail.com
Betsy M. Isenberg INDIANA OFFICE OF THE ATTORNEY GENERAL Betsy.Isenberg@atg.in.gov
Omar C. Jadwat AMERICAN CIVIL LIBERTIES UNION FOUNDATION ojadwat@aclu.org
Linton Joaquin National Immigration Law Center joaquin@nilc.org
Kenneth Lawson Joel INDIANA ATTORNEY GENERAL kenneth.joel@atg.in.gov
Jill Z. Julian UNITED STATES ATTORNEY'S OFFICE jill.julian@usdoj.gov
Joshua Karsh HUGHES SOCOL PIERS RESNICK & DYM, LTD. jkarsh@hsplegal.com
Matthew J. Piers HUGHES SOCOL PIERS RESNICK & DYM, LTD mpiers@hsplegal.com
Clifford Lee Reeves II U.S. DEPARTMENT OF JUSTICE lee.reeves@usdoj.gov
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Case 1:11-cv-00708-SEB-MJD Document 168 Filed 03/09/12 Page 15 of 15 PageID #: 1140
Justin F. Roebel CITY OF INDIANAPOLIS, OFFICE OF CORPORATION COUNSEL jroebel@indygov.org Gavin Minor Rose ACLU OF INDIANA grose@aclu-in.org Andre I. Segura AMERICAN CIVIL LIBERTIES UNION FOUNDATION asegura@aclu.org Karen Tumlin NATIONAL IMMIGRATION LAW CENTER tumlin@nilc.org Cecillia D. Wang AMERICAN CIVIL LIBERTIES UNION FOUNDATION cwang@aclu.org Alexander Phillip Will OFFICE OF CORPORATION COUNSEL awill@indygov.org
15

 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION

INGRID BUQUER,

)

BERLIN URTIZ,

)

LOUISA ADAIR on their own behalf and )

on behalf of those similarly situated,

)

)

Plaintiffs,

)

)

vs.

)

)

CITY OF INDIANAPOLIS,

)

MARION COUNTY PROSECUTOR in )

his official capacity,

)

CITY OF FRANKLIN,

)

JOHNSON COUNTY SHERIFF in his

)

official capacity,

)

JOHNSON COUNTY PROSECUTOR in )

his official capacity,

)

)

Defendants. )

No. 1:11-cv-00708-SEB-MJD

ORDER DENYING MOTION TO INTERVENE AND DENYING AS MOOT DEFENDANTS’ MOTION FOR RECONSIDERATION AND MOTION TO
STRIKE

By their motion, three Indiana state senators seek to have this court resolve the

internecine disagreement between themselves and the Indiana Attorney General over the

strategy to be pursued in this litigation by Defendants. Having carefully reviewed the

senators’ request, we cannot endorse the result they seek, and their motion to intervene

must be denied. As would-be suitors these three legislators lack the power to substitute

themselves for the Office of the Attorney General in order to pursue their own strategic

litigation preferences.

1

The Complaint in this class action challenges the constitutionality of Section 18
(currently codified at Indiana Code § 34-28-8.2) and Section 20 (currently codified at Indiana Code § 35-33-1(1)(a)(11)-(13)) of the 2011 Senate Enrolled Act (“SEA”) 590.1
On June 24, 2011, our court entered a preliminary injunction in favor of Plaintiffs
enjoining Defendants from enforcing Sections 18 and 20 until further order of the Court.
On November 20, 2011, Plaintiffs filed their motion for summary judgment and
supporting memorandum. On December 21, 2011, Defendant City of Indianapolis filed a
cross-motion for summary judgment. After discovery, on April 9, 2012, the Office of the
(Indiana) Attorney General, representing the Marion and Johnson County Prosecutors
(“the State Defendants”), filed its response opposing Plaintiffs’ motion for summary
judgment. In its response, the Office of the Attorney General requested not only that
Plaintiffs’ motion be denied but also that summary judgment be issued for the state
officials. On April 20, 2012, Plaintiffs filed their reply in support of their motion for
summary judgment, at which point the motion was fully briefed.
On June 25, 2012, before Plaintiffs’ pending summary judgment motion was
decided, the United States Supreme Court handed down its ruling in Arizona v. United
States, 132 S.Ct. 2492 (2012). On July 17, 2012, with this court’s permission, Plaintiffs
filed a notice of supplemental authority asserting that “[t]he Supreme Court’s holding in
1 Section 20 amends Indiana Code ' 35-33-1-1(1), by adding new sections (a)(11)-(a)(13), authorizing state and local law enforcement officers to make a warrantless arrest of a person when the officer has a removal order issued for the person by an immigration court, a detainer or notice of action issued for the person by the United States Department of Homeland Security, or has probable cause to believe the person has been indicted for or convicted of one or more aggravated felonies. Section 18 creates a new infraction under Indiana law for any person (other than a police officer) who knowingly or intentionally offers or accepts a consular identification card as a valid form of identification for any purpose.
2

Arizona is entirely conclusive of the issues presented by Class A in this case, which has challenged the ‘arrest provisions’ in Section 20 of SEA 590.” Docket No. 186 at 4. Plaintiffs further maintained that, with regard to Section 18, although not directly addressing the issue, Arizona “underscores the arguments made on behalf of Class B regarding Section 18 of SEA 590, which prohibits the use or acceptance of consular identification cards under most circumstances.” Id. at 5.
On July 31, 2012, the Office of the Attorney General filed a response to the supplemental authority stressing that Arizona did not directly address the issue of consular identification cards addressed in Section 18 of SEA 590, and stating: “[t]he Attorney General submits the issue to the Court for its determination of [the consular identification card] issue, with the recommendation that the State should enjoy the right to define what identification it deems reliable and acceptable for government purposes, including licensed occupations.” Docket No. 188 at 3. With regard to Section 20, the Attorney General indicated that, based on the Supreme Court’s holding in Arizona, he recognized that warrantless arrests of persons with a removal order, notice of action, or a commission of an aggravated felony are unconstitutional and therefore “[w]arrantless arrests under those circumstances and justifications will not be defended and a ruling by this Court to that effect will be accepted. However, a federal, state, or immigration detainer justified an arrest before Ind. Code 35-33-1-1, and still justifies an arrest after the Arizona decision.” Id. at 2.
Despite the fact that the Attorney General’s April 9, 2012 summary judgment response remains pending before this Court and that he has not consented to judgment, on
3

September 4, 2012, pursuant to Rule 24 of the Federal Rules of Civil Procedure, Indiana State Senators Mike Delph, Phil Boots, and Brent Steele, three of the state senators who originally co-authored and voted for SEA 590, filed a Motion to Intervene [Docket No. 190], seeking to intervene in their official capacities as Indiana State Senators on the side of Defendants to defend the constitutionality of SEA 590. Both Plaintiffs and the State Defendants have filed responses in opposition to the motion to intervene. Additionally, on September 12, 2012, the State Defendants filed a Motion for Reconsideration [Docket No. 197] of the Court’s September 10, 2012 Order Granting Motion to Appear Pro Hoc Vice and a Motion to Strike the Motion to Intervene [Docket No. 198]. On October 3, 2012, the State Senators filed a combined reply to the motion to intervene and response to the State Defendants’ motions. On October 12, 2012, the State Defendants filed a reply in support of their motion to reconsider and motion to strike. Having now all been fully briefed, we address these three currently pending motions.
Discussion I. Intervention by Right
The State Senators’ motion to intervene seeks leave to intervene as of right, pursuant to section 24(a)(2) of the Federal Rules of Civil Procedure. Under Rule 24(a)(2), a party seeking intervention of right must show: “(1) timeliness; (2) an interest relating to the subject matter of the main action, (3) at least potential impairment of that interest if the action is resolved without the intervenor, and (4) lack of adequate representation by existing parties.” Reid L. v. Ill. State Bd. of Educ., 289 F.3d 1009, 1017 (7th Cir. 2002) (citation omitted). If any of these criteria are not met, “the district court
4

must deny intervention of right.” Id. (citing United States v. 36.96 Acres of Land, 754 F.2d 855, 858 (7th Cir. 1985)).
While noting a circuit split on the issue, the Seventh Circuit has ruled that Rule 24(a)(2)’s requirement that the proposed intervenor possess an “interest” relating to the subject of the underlying action incorporates the requirement that the party seeking intervention possess Article III standing. City of Chicago v. Fed. Emergency Mgmt. Agency, 660 F.3d 980, 984-85 (7th Cir. 2011); see also Flying J, Inc. v. Van Hollen, 578 F.3d 569, 571 (7th Cir. 2009). “To establish standing under Article III, a prospective intervenor must show: (1) he or she has suffered an ‘injury in fact’ that is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical; (2) the injury is fairly traceable to the challenged action of the defendant; and (3) it is likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.” Peters v. District of Columbia, 873 F. Supp. 2d 158, 211 (D.D.C. 2012) (citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992); Sierra Club v. EPA, 292 F.3d 895, 898 (D.C. Cir. 2002)).
A. Standing/Rule 24(a)(2) Interest Requirement We turn initially to address the issue of standing and the Rule 24(a)(2) interest requirement. 2 The proposed intervenors contend that, as the co-authors of SEA 590, they have an interest in protecting the exercise of their legislative power to introduce and pass laws in the areas of police arrest power and the regulation of identification documents
2 Because we deny intervention as of right on the other grounds discussed in detail below, the element of timeliness is deferred until our discussion of permissive intervention, infra, where it is addressed in detail.
5

sufficient to confer standing. They argue that a preemption holding by the Court in this case not only invalidates the legislation that they co-authored, but also precludes them from sponsoring and enacting future legislation on similar subjects. The three legislators also contend that they have a related interest in preventing the nullification of their votes in favor of SEA 590 sufficient to confer standing under Coleman v. Miller, 307 U.S. 433 (1939).
Although the United States Supreme Court has seldom had occasion to address the issue of legislative standing, it has taken up the issue in two seminal cases – Coleman and Raines v. Byrd, 521 U.S. 811 (1997). In Coleman, the Supreme Court held that a group of twenty state legislators who had voted against a proposed child labor amendment to the federal constitution had standing to challenge the State Lieutenant Governor’s authority to cast a deciding vote in favor of the amendment because they had “a plain, direct and adequate interest in maintaining the effectiveness of their votes.” 307 U.S. at 438. The three legislators in the case before us argue that a preemption finding here would similarly nullify their votes in favor of SEA 590, depriving them of any legislative recourse following a negative decision. Thus, they contend that the Attorney General’s failure to defend SEA 590 in the manner that they desire is akin to the Lieutenant Governor’s actions challenged in Coleman.
We disagree. The Supreme Court clarified the scope of its Coleman holding in Raines. In Raines, six members of the United States Congress who had voted against the Line Item Veto Act filed suit challenging the constitutionality of the law after it was passed, arguing that the Act limited their institutional power as legislators because it gave
6

the President the power to veto certain measures after he signed them into law. The
Court rejected the members’ contention, stating:
[O]ur holding in Coleman stands (at most …) for the proposition that legislators whose votes would have been sufficient to defeat (or enact) a specific legislative Act have standing to sue if that legislative action goes into effect (or does not go into effect), on the ground that their votes have been completely nullified.
It should be equally obvious that appellees’ claim does not fall within our holding in Coleman, as thus understood. They have not alleged that they voted for a specific bill, that there were sufficient votes to pass the bill, and that the bill was nonetheless deemed defeated.
521 U.S. at 823-24.
Guided by this analysis in Coleman and Raines, we find that the three legislators
here have not alleged a vote nullification injury sufficient to bestow standing in this case.
Unlike the situation presented in Coleman, these proposed intervenors do not claim that a
bill they voted for “would have become law if their vote had not been stripped of its
validity ….” Raines, 521 U.S. at 824 n.7. It is undisputed that SEA 590 was properly
enacted by the Indiana General Assembly and signed by the Governor. Thus, this is not a
case analogous to Coleman in which the three legislators’ votes in favor of SEA 590 were
completely nullified by an allegedly improper procedure by the executive branch that
interfered in the legislative process. Rather, the proposed intervenors merely disagree
with the litigation strategy decisions made by the Indiana Attorney General.
In Planned Parenthood of Mid-Missouri and East Kansas, Inc. v. Ehlmann, 137
F.3d 573 (8th Cir. 1998), the Eighth Circuit addressed a situation closely analogous to the
one before us. In Ehlmann, the appellate court affirmed the district court’s denial of a
7

motion to intervene filed by ten Missouri state legislators seeking to intervene in litigation challenging a Missouri legislative enactment defended by the Missouri Attorney General, after the Attorney General indicated that he did not intend to appeal the district court’s ruling that the enactment was unconstitutional. There, the Eighth Circuit noted that the parties’ dispute limited to a disagreement between the legislative and executive branch over litigation strategy, which differentiated that case from Coleman. The Eighth Circuit observed: “Coleman related to whether legislators had standing in a lawsuit where they contended an allegedly illegal action of the Lieutenant Governor nullified their votes. It does not hold that when a court declares an act of the state legislature to be unconstitutional, individual legislators who voted for the enactment can intervene.” Ehlmann, 137 F.3d at 578.3 Because we also note that the case before us does not involve nullification resulting from improper intervention into the legislative process, the three legislators seeking to intervene have not demonstrated that they have standing under a vote nullification theory based on Coleman.
Nor is any separate claimed interest by them “in protecting the exercise of their legislative power to introduce and pass laws in the fields of police arrest power and the regulation of identification documents” sufficiently particularized to confer standing. The individual legislators contend that, as the co-authors of SEA 590, they have a distinct
3 We remain mindful of the Eighth Circuit’s caution in Ehlmann that: “Justice Souter [in his concurring opinion in Raines] cautioned against courts embroiling themselves in a political interbranch controversy between the United States Congress and the President. [citation omitted] Federal courts should exercise this same caution when, as in this case, there exists a political interbranch controversy between state legislators and a state executive branch concerning implementation of a bill.” 137 F.3d at 578 n.5.
8

and personal interest in its constitutionality, but this interest is not distinguishable from
the injury suffered by all members of the state legislature if the statute is subsequently
preempted. This type of claimed interest has been held by other courts to be “nothing
more than an ‘abstract dilution of institutional legislative power,’” which “does not
entitle individual legislators to seek a judicial remedy.” Alaska Legislative Council v.
Babbitt, 181 F.3d 1333, 1338 (C.A.D.C. 1999) (denying standing to state legislators
alleging the threat of federal preemption caused sufficient institutional injury to challenge
a federal statute which removed the power of the Alaska Legislature to control hunting
and fishing on federal lands within Alaska) (quoting Raines, 521 U.S. at 826).4
Similarly, in Raines, the Court emphasized the importance of the fact that the plaintiffs
had alleged an institutional injury in their official capacities which necessarily damaged
all members of the legislature equally, distinguishing those circumstances from situations
in which individual legislators had been found to have standing based on their having
“been singled out for specially unfavorable treatment as opposed to other Members in
their respective bodies.” 521 U.S. at 821; see also Newdow v. U.S. Congress, 313 F.3d
495, 500 (9th Cir. 2002) (“Of course, every time a statute is not followed or is declared
4 It is true, as the proposed intervenors argue, that the ability to make laws is a core legislative power. However, at issue here is a relatively narrow aspect of that institutional power, similar to the injury at issue in Babbitt, where the the state legislature’s power to control hunting and fishing on federal lands within Alaska was at stake. Although the three legislators here characterize their interest as “protecting the exercise of their legislative power to introduce and pass laws in the fields of police arrest power and the regulation of identification documents,” that characterization of their interest is drawn much too broadly. A preemption finding in this case would not eliminate the proposed intervenors’ ability to introduce and pass any laws in those fields, but rather would restrict only the breadth of their power to propose legislation in those fields inasmuch as they intersect with federal immigration regulation. Thus, the dilution of the legislators’ institutional power resulting from a preemption finding in the case at bar would be slight.
9

unconstitutional, the votes of legislators are mooted and the power of the legislature is
circumscribed in a sense, but that is no more than a facet of the generalized harm that
occurs to the government as a whole. By the same token, the President’s signing of the
legislation is also nullified, judges, who might have felt otherwise, are bound by the
decision, and citizens who relied upon or desired to have the law enforced are
disappointed.”).5
It is well established, however, that “state legislators have standing to contest a
decision holding a state statute unconstitutional if state law authorizes legislators to
represent the State’s interests.” Arizonans for Official English v. Arizona, 520 U.S. 43,
65 (1997) (citing Karcher v. May, 484 U.S. 72, 82 (1987)). The proposed intervenors
5 We note that a number of the cases cited by the proposed intervenors in support of their motion address or reference circumstances in which either the legislature as a whole or individual legislators authorized to act on behalf of the legislative bodies they served sought to intervene to defend legislation. Karcher v. May, 484 U.S. 72, 76-77, 94-85 (1987) (state legislators authorized to represent the New Jersey Legislature had the authority to defend the constitutionality of a statute challenged in federal court only as long as the legislators continued to hold office, but declining to address “the issue whether individual legislators have standing to intervene and defend legislation for which they voted”) (White, J., concurring); Yniquez v. State of Ariz., 939 F.2d 727 (9th Cir. 1991) (citing Karcher and holding that ballot initiative sponsors had standing to intervene to defend initiative’s constitutionality in part based on the court’s belief that “a state legislature” would have standing if the ballot initiative were instead a statute); Interactive Media Entertainment & Gaming Ass’n, Inc. v. Holder, 2011 WL 802106, at *10 (D.N.J. Mar. 7, 2011) (recognizing that “the state legislature would have a vested institutional interest in defending a state law against a constitutional attack when the executive branch declines to defend it”). However, the question of whether the Indiana General Assembly as a legislative body might have a right to intervene under the circumstances presented here is not at issue. Although the state legislature as a whole might have an institutional interest in defending the constitutionality of a state law when the executive branch declines to defend it, there is no argument here that the Indiana General Assembly has authorized the three proposed intervenors to act on its behalf. Moreover, the Attorney General’s position on the application of Arizona to the facts in this case does not mean that SEA 590 is left undefended as the Attorney General has neither consented to judgment in this case nor expressed a wholesale refusal to defend SEA 590. Accordingly, we do not find these cases either applicable or particularly helpful in resolving the issues at bar.
10

here argue that, although Indiana state law does not authorize them to stand in for the State of Indiana to represent its interests, Indiana state law expressly authorizes them to protect their own official interests as legislators, and thus, they have standing on that basis. The statute they cite, Indiana Code § 4-6-2-1.5, does not support their argument in that it clearly addresses the right state governmental officials and employees have to select the counsel of their own choosing to represent their personal interests whenever that governmental official or employee “is made a party to a suit” arising out of an official act. Id. § 1.5(a), (f). That is not the case here. Indiana law provides that, although state officials may hire outside counsel of their choosing to protect their personal interests, “when the suit involves State officers or employees in their official capacities, the outside attorney may only act as an amicus curiae unless the Attorney General consents. The Attorney General is charged by law with defending State agencies, officers and employees, and must, of necessity, direct the defense of the lawsuit in order to fulfill his duty to protect the State’s interests.” State ex rel. Sendak v. Marion County Superior Court, Room No. 2, 373 N.E.2d 145, 148 (Ind. 1978) (internal citation omitted). Accordingly, we reject the three legislators’ contention that state law gives them standing on this basis, and hold that the proposed intervenors have failed to assert an interest sufficient to confer Article III standing. Without standing, they cannot and do not satisfy the Rule 24(a)(2) interest requirement.
B. Adequacy of Representation Even if the proposed intervenors could establish that they have standing to sue and a sufficient interest in this litigation under Rule 24(a)(2), they have failed to show that the
11

Attorney General is providing inadequate representation in the litigation before us. In most cases, the burden of showing inadequacy is a minimal one. See Ligas ex rel. Foster v. Maram, 478 F.3d 771, 774 (7th Cir. 2007) (citations omitted). However, in cases like this one, where the governmental entity responsible for protecting the interests of the intervenors is the party accused of inadequacy, the Seventh Circuit has held that “the representative party is presumed to adequately represent [the proposed intervenors’] interests unless there is a showing of gross negligence or bad faith.” Id. (citing United States v. South Bend Cmty. Sch. Corp., 692 F.2d 623, 627 (7th Cir. 1982); United States v. Bd. of Sch. Comm’rs of Indianapolis, 466 F.2d 573, 575-76 (7th Cir. 1972)). Here, “[t]he Attorney General is charged with the responsibility of defending the State and its officers and employees when sued in their official capacities.” Sendak, 373 N.E.2d at 148 (citing IND. CODE §§ 4-6-2-1, 1.5). Thus, we find that the deferential standard applied in Ligas applies here as well.
As detailed above, the Attorney General has not engaged in or otherwise declared a wholesale refusal to defend SEA 590 nor has he consented to judgment in the case at bar. His position with regard to Section 18 of SEA 590 as set forth in his response to Plaintiffs’ motion for summary judgment has remained consistent throughout the litigation, and the proposed intervenors do not criticize that response which is still pending before the court. Their disagreement is with the Attorney General’s most recent legal argument regarding the applicability of the Arizona decision to certain provisions of Section 20 of SEA 590. However, their dispute with regard to the application of relevant caselaw evidences neither gross negligence nor bad faith on the part of the Attorney
12

General,6 and is thus insufficient to overcome the presumption that the representation is
adequate. See Wisconsin Educ. Ass’n Council v. Walker, 705 F.3d 640, 659 (7th Cir.
2013) (“[Proposed intervenors] rely largely on post-hoc quibbles with the state’s
litigation strategy. This does not provide the conflict of interest necessary to render the
state’s representation inadequate.”); Verizon New England v. Maine Public Utilities
Comm’n, 229 F.R.D. 335, 338 (D. Me. 2005) (“[F]ailure of a party to raise a particular
legal argument favored by the prospective intervenor does not establish inadequate
representation per se.”) (citing Daggett v. Comm’n on Governmental Ethics & Election
Practices, 172 F.3d 104, 112 (1st Cir. 1999)).
For the foregoing reasons, we hold that the three legislators have failed to assert a
specific, legally-protectable interest in this litigation sufficient to meet either the standing
requirement or the second prong of the test under Rule 24(a)(2), and that they have also
failed to show inadequate representation by the Attorney General as required by the
fourth prong under Rule 24(a)(2). Accordingly, we deny their request to intervene as of
right.
II. Permissive Intervention
6 The proposed intervenors correctly state that “Indiana courts define ‘bad faith’ as ‘not simply bad judgment or negligence, rather it implies the conscious doing of a wrong,’ and ‘contemplates a state of mind affirmatively operating with furtive design or ill will.’” Docket No. 205 at 24 (quoting Kruse v. Nat’l Bank of Indianapolis, 815 N.E.2d 137, 148 (Ind. Ct. App. 2004) (citations omitted)). However, the evidence cited by the three legislators in support of their bad faith argument is insufficient even to raise the possibility that the Attorney General’s July 31, 2012 response regarding the applicability of Arizona was anything other than his good faith interpretation of the relevant caselaw. None of the evidence and argument adduced by the intervenors evidences bad faith on the part of the Attorney General nor does it show “a furtive intent to deny the State Senators a meaningful defense,” as the proposed intervenors allege.
13

The proposed intervenors alternatively seek to intervene permissively under Rule 24(b). Permissive intervention is allowed upon timely application “when an applicant’s claim or defense and the main action have a question of law or fact in common.” Fed. R. Civ. Pro. 24(b). Relevant factors in determining whether permissive intervention under Rule 24(b) is appropriate include undue delay and prejudice to other parties. See Heartwood, Inc. v. U.S. Forest Serv., Inc., 316 F.3d 694, 701 (7th Cir. 2003). The determination of whether to grant permissive intervention falls within the discretion of the court. Sokaogon Chippewa Community v. Babbitt, 214 F.3d 941, 949 (7th Cir. 2000) (citation omitted).
Initially, we address the issue of the timeliness of the motion to intervene, at least as to Section 18 of the statute under review by the Court regarding consular-issued identification cards. To determine whether a motion to intervene is timely, courts look at factors such as: “(1) the length of time the intervenor knew or should have known of [his] interest in the case, (2) the prejudice caused to the original parties by the delay, (3) the prejudice to the intervenor if the motion is denied, and (4) any other unusual circumstances.” Reid L., 289 F.3d at 1017. “As soon as a prospective intervenor knows or has reason to know that his interests might be adversely affected by the outcome of this litigation he must move promptly to intervene.” United States v. South Bend Community Sch. Corp., 710 F.2d 394, 396 (7th Cir. 1983).
Here, the legislators seeking to intervene argue that their application is timely because it was not until Attorney General filed his response concerning the decision by the Supreme Court in Arizona on July 31, 2012, declining to actively defend the
14

constitutionality of certain provisions of Section 20 of SEA 590, that they became aware of their need to intervene. However, with regard to Section 18, the Attorney General’s July 31, 2012 response does not alter, much less withdraw, his arguments set forth previously in his April 9, 2012 summary judgment response and his June 15, 2011 memorandum opposing a preliminary injunction. Because the Attorney General has maintained a consistent position on Section 18 throughout this litigation, the three legislators had more than a year to move to intervene to defend the constitutionality of that section. These circumstances fall far short of establishing that they have moved “promptly.” Given the advanced stage of this litigation at which the motion to intervene was filed, we hold that the legislators’ request was not timely with regard to their arguments in support of the constitutionality of Section 18.
The legislators’ untimeliness is underscored by the fact that, as discussed above, the Attorney General has not withdrawn, consented to judgment, or otherwise left SEA 590 undefended. Allowing them to intervene at this point would force Plaintiffs to defend against the disparate views of both the executive and legislative branches, and to do so well after the pending summary judgment motion has been briefed. Our determination is also rooted in the well-established principles of Indiana law that provide: “The office of the Attorney General was re-created by the Indiana Legislature in 1943, in order to give the State independent legal representation and to establish a general legal policy for State agencies.” Sendak, 373 N.E.2d at 148 (citing Indiana State Toll Bridge Commission v. Minor, 139 N.E.2d 445 (Ind. 1957)). Thus, “the Attorney General has exclusive power and right in most instances to represent the State, its agencies and
15

officers, and the agencies and officers may not hire outside counsel unless the Attorney General has consented in writing.” Banta v. Clark, 398 N.E.2d 692, 693 (Ind. Ct. App. 1979) (citations omitted). Allowing the three individual legislators to intervene here in their official capacities as State Senators not only would conflict with this well-settled state law, but would provide the legislators a trump card with respect to the Attorney General’s statutorily derived discretion in this context. Informed as well by the cautious restraints imposed by courts on the exercise of their discretionary powers to take pains to avoid entering the fray of interbranch political controversies, we deny the proposed intervenors’ request to intervene permissibly.
III. Conclusion

For the foregoing reasons, we DENY the legislators’ Motion to Intervene. In light of this ruling, the State Defendants’ Motion for Reconsideration and Motion to Strike are DENIED AS MOOT. The case will proceed accordingly.

IT IS SO ORDERED. Date: _______0_3_/2_8_/_20_1_3______________

_______________________________
SARAH EVANS BARKER, JUDGE United States District Court Southern District of Indiana

16

Distribution:
Gavin Minor Rose ACLU OF INDIANA grose@aclu-in.org
Kenneth J. Falk ACLU OF INDIANA kfalk@aclu-in.org
Andre I. Segura AMERICAN CIVIL LIBERTIES UNION FOUNDATION asegura@aclu.org
Cecillia D. Wang AMERICAN CIVIL LIBERTIES UNION FOUNDATION cwang@aclu.org
Katherine Desormeau AMERICAN CIVIL LIBERTIES UNION FOUNDATION kdesormeau@aclu.org
Lee Gelernt AMERICAN CIVIL LIBERTIES UNION FOUNDATION lgelernt@aclu.org
Omar C. Jadwat AMERICAN CIVIL LIBERTIES UNION FOUNDATION ojadwat@aclu.org
Eric C. Bohnet ATTORNEY AT LAW ebohnet@gmail.com
Jillian Leigh Spotts CITY OF INDIANAPOLIS, CORPORATION COUNSEL jillian.spotts@indy.gov
Matthew J. Piers HUGHES SOCOL PIERS RESNICK & DYM, LTD mpiers@hsplegal.com
17

Jose J. Behar HUGHES SOCOL PIERS RESNICK & DYM, LTD. jbehar@hsplegal.com
Joshua Karsh HUGHES SOCOL PIERS RESNICK & DYM, LTD. jkarsh@hsplegal.com
Garrett R. Roe IMMIGRATION REFORM LAW INSTITUTE groe@irli.org
Adam Clay INDIANA ATTORNEY GENERAL Adam.Clay@atg.in.gov
Jefferson S. Garn INDIANA ATTORNEY GENERAL jefferson.garn@atg.in.gov
Kenneth Lawson Joel INDIANA ATTORNEY GENERAL kenneth.joel@atg.in.gov
Betsy M. Isenberg INDIANA OFFICE OF THE ATTORNEY GENERAL Betsy.Isenberg@atg.in.gov
Micheal M. Hethmon Immigration Reform Law Institute 25 Massachusetts Avenue NW, #335 Washington, DC 20001
Lynnette Gray JOHNSON GRAY& MACABEE vhunter@embarqmail.com
Angela Denise Adams LEWIS & KAPPES aadams@lewis-kappes.com
18

Karen Tumlin NATIONAL IMMIGRATION LAW CENTER tumlin@nilc.org
Karen Tumlin NATIONAL IMMIGRATION LAW CENTER tumlin@nilc.org
Shiu-Ming Cheer NATIONAL IMMIGRATION LAW CENTER cheer@nilc.org
Linton Joaquin National Immigration Law Center joaquin@nilc.org
Linton Joaquin National Immigration Law Center joaquin@nilc.org
Alexander Phillip Will OFFICE OF CORPORATION COUNSEL awill@indygov.org
Donald G. Banta OFFICE OF THE ATTORNEY GENERAL donald.banta@atg.in.gov
Patricia Orloff Erdmann OFFICE OF THE ATTORNEY GENERAL Patricia.Erdmann@atg.in.gov
Clifford Lee Reeves, II U.S. DEPARTMENT OF JUSTICE lee.reeves@usdoj.gov
Jill Z. Julian UNITED STATES ATTORNEY’S OFFICE jill.julian@usdoj.gov
William W. Barrett WILLIAMS HEWITT BARRETT & WILKOWSKI LLP wbarrett@wbwlawyers.com
19

 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION

INGRID BUQUER,

)

BERLIN URTIZ,

)

LOUISA ADAIR on their own behalf and )

on behalf of those similarly situated,

)

)

Plaintiffs,

)

)

vs.

)

)

CITY OF INDIANAPOLIS,

)

MARION COUNTY PROSECUTOR in )

his official capacity,

)

CITY OF FRANKLIN,

)

JOHNSON COUNTY SHERIFF in his

)

official capacity,

)

JOHNSON COUNTY PROSECUTOR in )

his official capacity,

)

)

Defendants. )

No. 1:11-cv-00708-SEB-MJD

ORDER ON PENDING SUMMARY JUDGMENT MOTIONS Plaintiffs, Ingrid Buquer, Berlin Urtiz, and Louisa Adair, on their own behalf and on behalf of those similarly situated, challenge Section 18 (currently codified at Indiana Code § 34-28-8.2) and Section 20 (currently codified at Indiana Code § 35-331(1)(a)(11)-(13)) of the 2011 Senate Enrolled Act (“SEA”) 5901 as unconstitutional and

1 Section 20 amends Indiana Code ' 35-33-1-1(1), by adding new sections (a)(11)-(a)(13), authorizing state and local law enforcement officers to make a warrantless arrest of a person when the officer has a removal order issued for the person by an immigration court, a detainer or notice of action issued for the person by the United States Department of Homeland Security, or
1

preempted by federal law.2 On June 24, 2011, the Court entered a preliminary injunction
in favor of Plaintiffs, enjoining Defendants, the City of Indianapolis (“the City”); the City
of Franklin; the Marion County Prosecutor, in his official capacity; the Johnson County
Sheriff, in his official capacity; and the Johnson County Prosecutor, in his official
capacity, from enforcing Sections 18 and 20 until further order of the Court.
On November 20, 2011, Plaintiffs filed a motion for summary judgment [Docket
No. 122], requesting that the previously entered preliminary injunction be made
permanent and that judgment be entered in their favor against all Defendants. On
December 21, 2011, the City filed its response in opposition to Plaintiffs’ motion for
summary judgment as well as a cross-motion for summary judgment [Docket No. 137],
arguing that Plaintiffs have failed to identify an improper municipal custom, policy, or
practice sufficient to support their claim against the City brought pursuant to 42 U.S.C. §
has probable cause to believe the person has been indicted for or convicted of one or more aggravated felonies. Section 18 creates a new infraction under Indiana law for any person (other than a police officer) who knowingly or intentionally offers or accepts a consular identification card as a valid form of identification for any purpose. 2 In the State Defendants’ introduction to their response in opposition to Plaintiffs’ motion for summary judgment, they argue in a few sentences that the two preemption challenges are the only claims being raised on behalf of the class and that the Fourth Amendment and due process challenges are raised only by the named plaintiffs. Not only is their argument undeveloped, it is also unsupported by the record. The parties stipulated that the law or fact common to each class is whether the challenged provisions are “preempted by Federal law and [] unconstitutional.” Docket No. 84 (emphasis added). This clearly encompasses both the preemption claims and the Fourth Amendment and due process constitutional challenges. Moreover, the State Defendants admitted in their Answer, which was filed after the class stipulation, that the questions of law or fact common to Class A include: “(1) whether SEA 590 violates the Fourth Amendment of the U.S. Constitution; and (2) whether SEA 590 is preempted.” Docket No. 86. Similarly, in their Answer, the State Defendants admitted that Class B presents common questions, including: “(1) whether SEA 590 is preempted by the U.S. Constitution and federal law; and (2) whether SEA 590 violates the Due Process Clause of the U.S. Constitution.” Id.
2

1983, but otherwise taking no position on the merits of the substantive claims as applied to the other Defendants. On January 4, 2012, Plaintiffs filed their response in opposition to the City’s cross-motion for summary judgment. The City filed its reply on January 23, 2012, and Plaintiffs filed a surreply on January 30, 2012.
After discovery, on April 9, 2012, the Office of the Attorney General, representing the Marion and Johnson County Prosecutors (“the State Defendants”), filed its response opposing Plaintiffs’ motion for summary judgment. In its response, the Office of the Attorney General requested not only that Plaintiffs’ motion be denied but also that summary judgment be issued for the state officials. The Attorney General did not file a separate motion for summary judgment, however. On April 20, 2012, Plaintiffs filed their reply in support of their motion for summary judgment, at which point both summary judgment motions were fully briefed.
After careful review of the parties’ submissions, documentary evidence, and applicable legal authorities, we GRANT Plaintiffs’ Motion for Summary Judgment as to the State Defendants and hereby PERMANENTLY ENJOIN enforcement of Sections 18 and 20 of SEA 590. Plaintiffs’ claim against the City of Indianapolis is DISMISSED WITHOUT PREJUDICE as unripe.
Factual Background3 I. Federal Immigration Regulation
3 We discussed these facts in our prior entry granting Plaintiffs’ request for preliminary injunctive relief and they have been altered here only to the extent required to reflect any changes necessitated by the Court’s review of the parties’ summary judgment briefing.
3

In 1952, Congress enacted the Immigration and Nationality Act (AINA@), 66 Stat. 163, as amended, 8 U.S.C. ' 1101 et seq. “That statute established a >comprehensive federal statutory scheme for regulation of immigration and naturalization= and set >the terms and conditions of admission to the country and the subsequent treatment of aliens lawfully in the country.” Chamber of Commerce of U.S. v. Whiting, 131 S.Ct. 1968, 1973 (2011) (quoting De Canas v. Bica, 424 U.S. 351, 353, 359 (1976)). The INA empowers the Department of Homeland Security (ADHS@), the Department of Justice (ADOJ@), and the Department of State, among other federal agencies, to administer and enforce immigration law. Within DHS, various sub-agencies, including the United States Immigration and Customs Enforcement (AICE@), the United States Customs and Border Protection (ACBP@), and the United States Citizenship and Immigration Services (AUSCIS@), are tasked with immigration related responsibilities.
In certain limited situations, federal law permits the delegation of authority to enforce civil immigration law to state and local law enforcement. For example, DHS is permitted to enter into written agreements (known as “287(g) agreements”) with states or any political subdivision of a state to allow appropriately trained and supervised officers or employees of the state or subdivision to perform certain immigration responsibilities. 8 U.S.C. ' 1357(g)(1). It is undisputed that Indiana has no such agreement with the federal government.
Defendants stress the fact that local Indiana law enforcement officials nevertheless often cooperate with federal agencies in the performance of the enforcement of
4

immigration-related laws, citing an October 2011 “mini-criminal alien surge” spearheaded by ICE in which 138 removable aliens were identified in three Indiana county jails over a four-day period. After identifying the criminal aliens, ICE removed six criminal offenders who were then transferred to the Marion County Jail. Exh. G. However, when such cooperative enforcement efforts occur, the local law enforcement officers are enlisted by and perform their duties at the behest of the federal officials who are authorized to perform these responsibilities. II. Section 20
In an apparent attempt to give law enforcement powers to local officials independent of federal supervision and/or authority such that they could act unilaterally, Section 20 of the Act was enacted to amend Indiana Code ' 35-33-1-1(1), by adding new sections (a)(11)-(a)(13), which provide as follows:
(a) A law enforcement officer may arrest a person when the officer has: *** (11) a removal order issued for the person by an immigration court; (12) a detainer or notice of action for the person issued by the United States
Department of Homeland Security; or (13) probable cause to believe that the person has been indicted for or convicted
of one (1) or more aggravated felonies (as defined in 8 U.S.C. 1101(a)(43)). An understanding of the material phrases incorporated in this statute is necessary; that discussion ensues: A. Removal Order
5

The INA contains provisions which, inter alia, set forth the conditions under which a foreign national may be admitted to and remain in the United States, establish civil penalties and criminal sanctions for immigration violations, and grant DHS the discretion to place non-citizens into removal proceedings for various actions. See, e.g., 8 U.S.C. '' 1181-1182, 1184, 1225, 1227-1229, 1306, 1324-25. Unlawful presence in the United States on its own is not a federal crime, although it can lead to the civil remedy of removal. 8 U.S.C. '' 1182(a)(6)(A)(I), 1227(a)(1)(B), (C). Removal proceedings take place within an administrative immigration court system within the DOJ. 8 C.F.R. ' 1003.0, et seq.
If the Attorney General of the United States issues a warrant after removal proceedings have been initiated against an individual under federal law, that person may be arrested and detained pending a final removal decision. 8 U.S.C. ' 1226(a). However, removal does not occur in every case. After removal proceedings are initiated, the non-citizen may still be released during the pendency of removal proceedings, or even after the removal order has been issued by an immigration judge. Under 8 U.S.C. ' 1226(a), the individual may be released on bond or conditional parole, or, in some cases, be provided with work authorization. Id. ' 1226(a)(3). After a removal order is issued by an immigration judge, the non-citizen has the right to seek reconsideration as well as administrative and judicial review of that determination and may be released on bond until a final determination is made. 8 U.S.C. ' 1229a(c)(5). Even after issuance of a final removal order, the individual may, in some circumstances, move to reopen the
6

removal proceedings, which may stay his/her removal pending final disposition of the motion. Id. ' 1229a(c)(7). If the Attorney General fails to remove the non-citizen within ninety days after the removal order becomes final, the individual is released from detention, subject to supervision by the Attorney General. 8 U.S.C. ' 1231(a)(3). Finally, in lieu of deportation, the Attorney General may allow an alien to voluntarily depart the United States during a predetermined period of time. 8 U.S.C. ' 1229c.
B. Detainer If federal or local law enforcement informs ICE that an alien is in custody on nonimmigration related charges, ICE may issue a detainer requesting that the law enforcement agency hold the individual for up to 48 hours (not including weekend days and holidays) beyond the time that the detainee would otherwise be released in order to allow ICE to assume custody, if it chooses to do so. 8 C.F.R. ' 287.7(d). A detainer is not a criminal warrant, but rather a voluntary request that the law enforcement agency “advise [DHS], prior to release of the alien, in order for [DHS] to arrange to assume custody.” Id. ' 287.7(a). The detainer automatically expires at the end of the 48-hour period. Id. C. Notice of Action The standard form that federal immigration authorities utilize to inform individuals with pending petitions of any sort before the agency of the status of their cases is known as the Notice of Action Form, Form I-797. This form may be used to notify a person of a wide variety of administrative actions, including that a petition or
7

application with the agency has been received, that a decision has been made on a petition or application, and may even be used to notify an individual that he or she has been granted lawful status. Because an I-797 form is essentially simply a communication between the agency and the petitioner issued for any one of a wide range of administrative reasons, receipt of a notice of action is not a reliable indicator of an individual=s immigration status, or whether an individual has engaged in illegal activity, or the circumstances surrounding the individual=s presence in the United States.
Notices of Action also include other forms issued by DHS, including Form 29, which is issued to importers by Customs and Border Protection, a subagency within DHS. Another Notice of Action is Form I-247, which is an immigration detainer described above.
D. Aggravated Felonies The INA provides that an alien convicted of an “aggravated felony” is subject to removal and may not receive asylum in the United States, become a citizen, lawfully reenter the United States, or have removal orders cancelled by the Attorney General. 8 U.S.C. '' 1158(b)(2)(A)(ii), (b)(2)(B)(I); 1227 (a)(2)(A)(iii); 1229b(a)(3). However, it is often unclear whether a particular crime constitutes an aggravated felony under federal immigration law. “Aggravated felony” is defined under 8 U.S.C. ' 1101(a)(43), which encompasses 21 subsections, many of which themselves contain multiple crimes. Thus, determining whether a particular crime meets the definition is often a complex analytical
8

undertaking, one with which courts routinely grapple as have Executive Branch agencies
and departments charged with enforcing this law.
III. Section 18
Section 18 of the Act, to be codified as Indiana Code ' 34-28-8.2, provides:
Chapter 8.2. Offenses Related to Consular Identification
Sec. 1. As used in this chapter, Aconsular identification@ means an identification, other than a passport, issued by the government of a foreign state for the purpose of providing consular services in the United States to a national of the foreign state.
Sec. 2. (a) This section does not apply to a law enforcement officer who is presented with a consular identification during the investigation of a crime.
(b) Except as otherwise provided under federal law, a person who knowingly or intentionally offers, accepts, or records a consular identification as a valid form of identification for any purpose commits a Class C infraction. However, the person commits:
(1) a Class B infraction for a second offense; and (2) a Class A infraction for a third or subsequent offense.
Consular Identification Documents (“CIDs”):
The Vienna Convention on Consular Relations (“VCCR”), to which the United
States is a signatory, provides, inter alia, that a foreign consulate may issue travel
documents, visas, or other appropriate documents to protect and assist its citizens in the
foreign country. Vienna Convention on Consular Relations and Optional Protocol on
Disputes, Art. 5(a), (d), (e), T.I.A.S. No. 6820, 21 U.S.T. 77, 1969 WL 97928 (Dec. 14,
1969). Consular identification documents (“CIDs”) are photo identification cards issued
by many embassies and consulates, including the United States, “to encourage their
9

citizens abroad to register with the consulates so that they can receive standard consular services, be notified if necessary, and be located upon inquiry by relatives and authorities.” Congressional Research Service, Consular Identification Cards: Domestic and Foreign Policy Implications, the Mexican Case, and Related Legislation at CRS-1 (2005), available at http://www.fas.org/sgp/crs/misc/RL32094.pdf (last visited March 28, 2013). It is an accommodation made by a foreign government with and for its own citizens who are temporarily residing in the United States (or elsewhere we assume).
Under the VCCR, a foreign national arrested or detained in the United States must be advised of his or her right to request that appropriate consular officials be timely notified of the individual=s detention. Thus, individuals can use CIDs to alert federal, state, and local law enforcement authorities of the need to notify consular officials when assistance is required. Cardholders also commonly use CIDs for identification purposes, such as with financial institutions, law enforcement agencies, and state and local governments in the United States, as well as for other transactions that require photo identification, including cashing checks, renting housing, or enrolling children in school, especially when no other forms of photo identification are available to them for their use.
The parties stipulate that limitations or restrictions on the use of these documents in connection with official state matters is a permissible exercise of state governmental authority. As for the non-state governmental uses, however, the parties disagree as to their lawfulness. IV. Background on the Named Plaintiffs
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Ingrid Buquer is a Mexican citizen who resides in Johnson County (Indiana) and also spends a significant amount of time in Marion County. She applied for a U-Visa as a victim of, or a witness to, a violent crime, and her application was still pending at the time the preliminary injunction in this case was issued. However, in April 2012, her application was granted and she has now received her employment authorization card. See 8 U.S.C. ' 1101(a)(15)(U). She received an I-797 Notice of Action to inform her of the pendency of her U-Visa application and another Notice of Action when her UNonimmigrant Status was approved.4
Ms. Buquer has also received a CID from the Mexican Consulate in Indianapolis, which she uses in both Johnson and Marion Counties for many purposes, such as banking and shopping as well as in other situations in which identification is required. She has at times presented her CID when receiving services at the Mexican Consulate as proof of her Mexican citizenship. At the time the preliminary injunction was issued in this case, Ms. Buquer was unable to obtain an identification card or license from the State of Indiana. However, as of February 2012, she was able to obtain a passport from the Mexican Consulate, and thus, now has an alternative to her CID for identification purposes. See Buquer Dep. at 13-14; Buquer Dep. Exh. B. Plaintiffs contend that, because Ms. Buquer has received a Notice of Action, she will be subject to warrantless arrest pursuant to Section 20 when and if the law goes into effect. Additionally, when
4 In a footnote, the State Defendants note that these developments “may affect Buquer’s ability to continue as class representative and will be reviewed.” Defs.’ Resp. at 2. However, Defendants have not developed this argument, and thus, we do not address it further.
11

and if Section 18 goes into effect, she will not be able to use her CID for identification without being subject to a civil infraction.
Louisa Adair is a citizen of Nigeria who currently resides in Marion County. Ms. Adair had a removal order issued against her in 1996, but she is currently released by ICE on an Order of Supervision, under which she reports to ICE every six months. She has been issued a valid work authorization document from DHS and she receives a I-797 Notice of Action each time she applies to renew her employment authorization card. Ms. Adair has filed a Motion to Reopen and Terminate Removal Proceedings and has also made a formal request that the ICE Chief Counsel=s office exercise its prosecutorial discretion and join in her in that motion. If her request is granted, she will be eligible to apply for lawful permanent residency because her mother is a citizen of the United States and Ms. Adair possesses an approved and current I-130 visa petition. Ms. Adair also received an I-797 Notice of Action approving the I-130 petition that establishes her relationship to her citizen-mother. Plaintiffs contend that, because Ms. Adair has received both a removal order and various Notice of Action forms, she will be subject to warrantless arrest by Indiana law enforcement officers when and if Section 20 goes into effect.
Berlin Urtiz is a citizen of Mexico who came to the United States when he was three years old and currently resides in Marion County. He has been a lawful permanent resident of the United States since 2001. In 2004, Mr. Urtiz was convicted of theft in Johnson County and sentenced to two years in prison, which was subsequently suspended
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to probation. This crime was initially determined to be an aggravated felony under 8 U.S.C. ' 1101(a)(43), and, in 2010, he was taken into custody by ICE and detained for four months pending removal. However, in September 2010, he was granted postconviction relief. His theft conviction was vacated in November 2010 and he was resentenced for the misdemeanor offense of conversion, which does not qualify as an aggravated felony. Currently, there are no removal proceedings pending against Mr. Urtiz and he remains a lawful permanent resident, but Plaintiffs contend that, inasmuch as he has been convicted of an aggravated felony in the past, he will be subject to warrantless arrest by Indiana law enforcement officers on this basis when and if Section 20 goes into effect. V. The Certified Classes
On July 14, 2011, the Court, pursuant to the parties’ stipulation, certified this cause as a class action, with two separate classes, pursuant to Federal Rule of Civil Procedure 23(a) and (b)(2). Class A is defined as follows:
All persons in Marion and Johnson Counties, Indiana, or who will be in Marion and Johnson Counties, Indiana, who are or will be subject to warrantless arrest pursuant to Section 19 of SEA 590 based on a determination that: a removal order issued against them by an immigration court; have or will have, a detainer or notice of action issued against them by the United States Department of Homeland Security; or they have been, or will be, indicted for or convicted of one (1) or more aggravated felonies, as defined in 8 U.S.C. § 1101(a)(43).
Docket No. 84. Class B is defined as follows:
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All persons in Marion and Johnson Counties, Indiana, or who will be in Marion and Johnson Counties, Indiana, who possess, or will possess, a valid consular identification card and are using it, or will use it, for nonfraudulent identification purposes. Id.
Legal Analysis I. Standard of Review
Summary judgment is appropriate when the record shows that there is “no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). Disputes concerning material facts are genuine where the evidence is such that a reasonable jury could return a verdict for the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In deciding whether genuine issues of material fact exist, the court construes all facts in a light most favorable to the non-moving party and draws all reasonable inferences in favor of the non-moving party. See id. at 255. However, neither the “mere existence of some alleged factual dispute between the parties,” id., 477 U.S. at 247, nor the existence of “some metaphysical doubt as to the material facts,” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986), will defeat a motion for summary judgment. Michas v. Health Cost Controls of Ill., Inc., 209 F.3d 687, 692 (7th Cir. 2000).
The moving party “bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of [the record] which it believes
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demonstrate the absence of a genuine issue of material fact.” Celotex, 477 U.S. at 323. The party seeking summary judgment on a claim on which the non-moving party bears the burden of proof at trial may discharge its burden by showing an absence of evidence to support the non-moving party's case. Id. at 325.
Summary judgment is not a substitute for a trial on the merits, nor is it a vehicle for resolving factual disputes. Waldridge v. Am. Hoechst Corp., 24 F.3d 918, 920 (7th Cir. 1994). Therefore, after drawing all reasonable inferences from the facts in favor of the non-movant, if genuine doubts remain and a reasonable fact-finder could find for the party opposing the motion, summary judgment is inappropriate. See Shields Enterprises, Inc. v. First Chicago Corp., 975 F.2d 1290, 1294 (7th Cir. 1992); Wolf v. City of Fitchburg, 870 F.2d 1327, 1330 (7th Cir. 1989). But if it is clear that a plaintiff will be unable to satisfy the legal requirements necessary to establish his or her case, summary judgment is not only appropriate, but mandated. See Celotex, 477 U.S. at 322; Ziliak v. AstraZeneca LP, 324 F.3d 518, 520 (7th Cir. 2003). Further, a failure to prove one essential element “necessarily renders all other facts immaterial.” Celotex, 477 U.S. at 323.
Courts often confront cross-motions for summary judgment because Rules 56(a) and (b) of the Federal Rules of Civil Procedure allow both plaintiffs and defendants to move for such relief. AIn such situations, courts must consider each party=s motion individually to determine if that party has satisfied the summary judgment standard.@ Kohl v. Ass=n. of Trial Lawyers of Am., 183 F.R.D. 475 (D.Md.1998). Thus, in
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determining whether genuine and material factual disputes exist in this case, the Court has considered the parties= respective memoranda and the exhibits attached thereto, and has construed all facts and drawn all reasonable inferences therefrom in the light most favorable to the respective non-movant. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574 (1986). II. Plaintiffs’ Motion for Summary Judgment as to State Defendants
The Court previously addressed all issues presented in this litigation in our June 24, 2011 Order preliminarily enjoining enforcement of the challenged sections of SEA 590. Now, after further careful review of the parties’ summary judgment briefing, a completely developed factual record, and the applicable legal authorities, our view of the appropriate final determination of these issues remains unchanged. Drawing substantially from our June 24, 2011 Order, significant portions of which are incorporated herein, we have modified and extended that preliminary analysis only to the extent necessitated by recent judicial decisions as addressed in the parties’ summary judgment and supplemental briefing.
A. Section 20 1. Preemption
Pursuant to the Supremacy Clause, it is “[a] fundamental principle of the Constitution ... that Congress has the power to preempt state law.” Crosby v. Nat=l Foreign Trade Council, 530 U.S. 363, 372 (2000) (citations omitted). Preemption, express or implied, “is compelled whether Congress= command is explicitly stated in the
16

statute=s language or implicitly contained in its structure and purpose.” Jones v. Rath Packing Co., 430 U.S. 519, 525 (1977) (citations omitted). In cases in which Congress has not explicitly provided for preemption in a given statute, state law must nonetheless yield in two circumstances: First, “[w]hen Congress intends federal law to ‘occupy the field,’ state law in that area is preempted.” Crosby, 530 U.S. at 372. Second, even if Congress has not expressly occupied the field, state law is preempted where it conflicts with federal law. Conflicts arise when “compliance with both federal and state regulations is a physical impossibility or when state law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.” Fid. Fed. Sav. & Loan Ass=n v. de la Cuesta, 458 U.S. 141, 153 (1982) (internal quotations and citations omitted). To determine whether “obstacle” preemption exists, a court must employ its “judgment, to be informed by examining the federal statute as a whole and identifying its purpose and intended effects.” Crosby, 530 U.S. at 373.
Here, Section 20 of newly enacted Indiana statute authorizes the arrest of individuals in Indiana who are the subjects of a removal order, a detainer or notice of action, or a past indictment for or conviction of an aggravated felony. It is undisputed that none of these matters is itself a crime and, without more, does not provide the usual predicate for an arrest. As the Supreme Court recently made clear in Arizona v. United States, 132 S.Ct. 2492 (2012), “[t]he federal statutory structure instructs when it is appropriate to arrest an alien during the removal process.” Id. at 2505. Yet, as noted in our order granting preliminary injunctive relief, Section 20 authorizes state and local law
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enforcement to arrest in circumstances far broader than those in which Congress has
allowed state and local officers to arrest immigrants, (8 U.S.C. ' 1252c),5 and, in fact,
authorizes a much broader warrantless arrest power than even federal officers are given
under federal law. 8 U.S.C. ' 1357(a)(2).6 There is absolutely no indication that
Congress intended state and local law enforcement officers to retain greater authority to
effectuate a warrantless arrest than do trained federal immigration officials.
In Arizona, the Supreme Court addressed, inter alia, a provision of the State of
Arizona’s Support Our Law Enforcement and Safe Neighborhoods Act (commonly
5 Pursuant to 8 U.S.C. ' 1252c, state and local officers are given the authority, “to the extent permitted by relevant State and local law,” to arrest and detain an individual who:
(1) is an alien illegally present in the United States; and
(2) has previously been convicted of a felony in the United States and deported or left the United States after such conviction,
but only after the State or local law enforcement officials obtain appropriate confirmation from the Immigration and Naturalization Service of the status of such individual and only for such period of time as may be required for the Service to take the individual into Federal custody for purposes of deporting or removing the alien from the United States.
6 Under 8 U.S.C. ' 1357(a)(2), federal officers are authorized to arrest without a warrant any alien:
who in his presence or view is entering or attempting to enter the United States in violation of any law or regulation made in pursuance of law regulating the admission, exclusion, expulsion, or removal of aliens, or to arrest any alien in the United States, if he has reason to believe that the alien so arrested is in the United States in violation of any such law or regulation and is likely to escape before a warrant can be obtained for his arrest, but the alien arrested shall be taken without unnecessary delay for examination before an officer of the Service having authority to examine aliens as to their right to enter or remain in the United States.
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referred to as S.B. 1070), which provided that state and local law enforcement officers “without a warrant, may arrest a person if the officer has probable cause to believe … [the person] has committed any public offense that makes [him] removable from the United States.” Id. at 2505 (quoting ARIZ. REV. STAT. ANN. § 13-3883(A)(5)) (alterations in original). The Court declared that provision to be preempted by federal law, observing that it would provide state officers greater arrest power in the immigration realm than Congress provided to federal immigration officers. The Court emphasized that Arizona’s authority under the challenged provision “could be exercised without any input from the Federal Government about whether an arrest is warranted in a particular case,” which “would allow the State to achieve its own immigration policy.” Id. at 2506.
Similarly, in the case before us there is no indication that state or local law enforcement officers would be required to consult federal immigration officials before effecting an arrest pursuant to Section 20. Given the broad warrantless arrest powers provided in Section 20, it is reasonable to predict that many arrests authorized under that provision would directly contravene the federal government’s immigration enforcement scheme. For example, Section 20 authorizes an arrest of any individual who is in receipt of a removal order. However, having received a prior removal order is not proof that the person is subject to detention by federal authorities and, in many cases, with the permission of federal authorities, individuals with removal orders can remain free from custody and obtain work authorization. In such circumstances where the federal government has exercised its discretion to release an individual who has had a removal
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order issued, the subsequent arrest of that person by Indiana law enforcement officers
would directly conflict with the federal decision, obviously and seriously interfering with the federal government=s authority in the field of immigration enforcement.
The conflict is even more apparent with regard to Section 20’s authorization of the
arrest of individuals who have been issued a notice of action. Many such notices of
action an alien might receive are inherently non-criminal. Thus, receipt of such a form
often merely acknowledges that the individual’s information dealing with immigration
matters has been received by INS or that an immigration decision is pending or has been
made. Such communications clearly could be as legally innocuous as informing the
recipient that a visa application has been received and is being processed or even that he
or she has attained lawful alien status. Even if it were presumed that state and local law
enforcement officers would utilize their arrest powers prudently, for example, only in
cases where the notice of action received by the alien is “substantive” or “non-benign,” no such limitation appears in Section 20 nor are those terms defined, leaving to anyone=s
guess what would constitute a “non-benign” or “substantive” notice of action or how any
Indiana law enforcement officer could be expected to know the basis for such a distinction.7 Clearly, it is not the intent or purpose of federal immigration policy to arrest
7 The State Defendants contend that the use of the phrase “a detainer or notice of action” (emphasis added) in Section 20 makes clear that the General Assembly intended to give law enforcement officers the ability to arrest only those individuals who had a Form I-247 “Immigration Detainer – Notice of Action” as opposed to merely having any “run-of-the-mill” Notice of Action. Defs.’ Resp. at 17. The State Defendants further argue that, if the statute was meant to refer to all notices of action and not simply a Form I-247 detainer, it would have instead provided that an arrest could be made if the individual had “a detainer or a notice of action.”
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individuals merely because they have at some point had contact with a federal administrative agency concerning an immigration matter and have received notice to that effect. Authorizing an arrest for nothing more than the receipt of an administrative notification plainly interferes with the federal government=s purpose of keeping those involved in immigration matters apprised of the status of their cases, but not arresting them.
Federal law specifies that the immigration penalties associated with aggravated felonies arise only if the individual has been convicted of the offense. 8 U.S.C. ' 1101(a)(43). Yet Section 20 allows state and local law enforcement to arrest those concerning whom they have probable cause to believe have merely been indicted for such an offense. Obviously, whether a crime constitutes an “aggravated felony” can often involve a complex and confusing legal and factual analyses, but there is no guidance in Section 20 as to how a state or local officer should make that determination. Thus, the power to arrest on that basis threatens serious abuses. Regardless, authorizing the arrest of individuals who have only been indicted but not convicted of an aggravated felony runs counter to the federal intent to limit such penalties. Even in cases where a conviction has occurred, if the federal government determines that no penalty will be
(emphasis added). However, as Plaintiffs argue, it is both permissible and common for a single article to be used to modify multiple nouns that are listed in the disjunctive, and, in fact, another sub-section of the same statute at issue here permits an individual’s arrest when an officer has probable cause to believe the person has committed “a battery resulting in bodily injury under IC 35-42-2-1 or domestic battery under IC 35-42-2-1.” IND. CODE § 35-33-1-1(a)(5) (emphasis added). This is but one of a myriad of examples contained in the Indiana Code.
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imposed, a subsequent arrest by state authorities pursuant to Section 20 directly conflicts with the federal determination.
It is true that there are certain instances in which state and local law enforcement officers may be authorized to assist the federal government in immigration matters. But such circumstances are limited and clearly defined under federal law. For example, as discussed above, DHS may enter into written agreements with states or any political subdivision of a state to allow appropriately trained and supervised officers or employees of the state or subdivision to perform certain immigration responsibilities subject to the Attorney General’s discretion and supervision. See 8 U.S.C. ' 1357(g)(1), (g)(3); see also § 1103(a)(10) (authority may be extended in the event of an “imminent mass influx of aliens off the coast of the United States”); § 1252c (authority to arrest in specific circumstances after consultation with the federal government). However, it is undisputed that Indiana has entered into no such agreement with DHS. Nor is the authority granted by Section 20 justified under 8 U.S.C. § 1357(g)(10)(B), which allows state officers to “cooperate with the Attorney General in the identification, apprehension, detention, or removal of aliens not lawfully present in the United States.” As the Supreme Court recognized in Arizona, “[t]here may be some ambiguity as to what constitutes cooperation under federal law; but no coherent understanding of the term would incorporate the unilateral decision of state officers to arrest an alien for being removable absent any request, approval, or other instruction from the Federal Government.” 132 S.Ct. at 2507. Similarly, here, the unilateral discretion granted state and local law
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enforcement officers to arrest under Section 20 goes far beyond the types of cooperation contemplated by § 1357(d). See id. (citing Dept. of Homeland Security, Guidance on State and Local Governments’ Assistance in Immigration Enforcement and Related Matters 13-14 (2011), online at http://www.dhs.gov/files/resources/immigration.shtm (last visited March 28, 2013) (providing examples of what constitutes “cooperation” under federal law, including situations in which states participate in a joint task force with federal officers, provide operational support in executing a warrant, or permit federal immigration officials to gain access to detainees held in state facilities)).
Federal immigration law consists of a veritable tapestry of individual regulatory and policy threads woven together to create a balanced whole. In order to maintain that balance throughout the country, federal law vests discretion at the federal level regarding whether and which persons without full, lawful alien status should be arrested. Section 20 impermissibly alters that balance by authorizing the arrest for immigration matters of individuals only within the boundaries of the State of Indiana whom, in many cases, the federal government does not seek or intend to be detained. As such, Section 20 significantly disrupts and interferes with federal discretion relating to immigration enforcement and the appropriate, preferred methods for carrying out those enforcement responsibilities. Accordingly, we hold that Section 20 of SEA 590 is preempted by federal law.
2. Fourth Amendment and Due Process
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Even if Section 20 were not preempted by federal law, because it authorizes state and local law enforcement officers to effect warrantless arrests for matters that are not crimes, it runs afoul of the Fourth Amendment, and thus, is unconstitutional on those grounds. “[A]n arrest is reasonable under the Fourth Amendment so long as there is probable cause to believe that some criminal offense has been or is being committed.” Fox v. Hayes, 600 F.3d 819, 837 (7th Cir. 2010) (emphasis in original) (citations omitted). When a federal court is tasked with evaluating a facial challenge to a state law, the court must “consider any limited construction that a state court or enforcement agency has proffered.” Ward v. Rock Against Racism, 491 U.S. 781, 795-96 (1989) (quoting Hoffman Estates v. The Flipside, Hoffman Estates, Inc., 455 U.S. 489, 494 n.5 (1982)). However, “a federal court may not slice and dice a state law to ‘save’ it; we must apply the Constitution to the law the state enacted and not attribute to the state a law we could have written to avoid the problem.” K-S Pharmacies, Inc. v. Am. Home Products, Corp., 962 F.2d 728, 730 (7th Cir. 1992) (citations omitted).
Defendants maintain that the Court is obligated to presume that the arrest provisions set forth in Section 20 will be applied constitutionally, that is, in accordance with the Fourth Amendment and due process requirements, and thus, that these expanded arrest powers would be utilized only in conjunction with an otherwise lawful arrest. We are no more persuaded by Defendants’ argument now than we were at the preliminary
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injunction stage; therefore, we incorporate much of our prior order into our discussion here.
We begin by noting that Defendants’ interpretation of Section 20 completely ignores the plain language of that statute. Section 20 expressly provides that state and local enforcement officers “may arrest” individuals for conduct that all parties stipulate and agree is not criminal. The statute contains no reference to Fourth Amendment protections nor does it include a requirement that the arrest powers granted to law enforcement officers under Section 20 be used only in circumstances in which the officer has a separate, lawful reason for the arrest. Moreover, accepting Defendants’ proposed construction would, in effect, read the statute out of existence. Apart from the exclusion of Fourth Amendment requirements regarding probable cause to arrest, Section 20 bestows no authority on law enforcement officers beyond the power to arrest for the noncriminal conduct enumerated therein, creating a deafening silence as to what happens to the arrestee post his or her arrest. There is no mention of any requirement that the arrested person be brought forthwith before a judge for consideration of detention or release. There is, in fact, a complete void within the newly enacted statute regarding all other due process protections. Our acceptance of Defendants’ theory would require the Court to construe the state statute under review contrary to its plain language, which very plainly authorizes law enforcement officials to arrest an individual without regard to whether that individual was already subject to a lawful arrest. Such an interpretation,
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apart from being based on nothing within the text of the statute itself, would render Section 20 completely meaningless. We cannot and shall not interpret a statute in such an unprincipled fashion. United States v. Berkos, 543 F.3d 392, 396 (7th Cir. 2008).
Defendants emphasize the fact that Section 20 does not mandate arrests; rather it merely grants discretionary authority to law enforcement officers to arrest. However, Defendants fail to explain the significance of this difference and we see none, since it is clear that “[i]t is the high office of the Fourth Amendment to constrain law enforcement discretion.” Hedgepeth ex rel. Hedghpeth v. Washington Metro. Area Transit Auth., 386 F.3d 1148, 1159 (D.C. Cir. 2004). Nor are we persuaded by Defendants argument that the law in fact requires a “higher standard than probable cause” because it requires the officers to actually “have” certain documents in their possession before exercising their discretion under Section 20, to wit, a removal order from an immigration court, a detainer or notice of action from DHS, or probable cause to believe that an individual was indicted or convicted of an aggravated felony. Defs.’ Resp. at 14. However, even assuming that “have” is interpreted to require physical possession, being in possession of any of the documents enumerated in Section 20 does not provide lawful cause for arrest under the Fourth Amendment.
In short, if the Court were to accept Defendants= proposed construction of the arrest powers provision, it would require a radical rewriting of Section 20, which the Court is not empowered to do. Even if such broad interpretive powers were permissible,
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and we repeat, they are not, the construction Defendants have proposed would be entirely untenable because, as we have noted above, it would render the challenged statute meaningless. Accordingly, we find that Section 20 is susceptible to only one interpretation, to wit, that it authorizes the warrantless arrest of persons for matters and conduct that are not crimes. Because such power contravenes the Fourth Amendment, Section 20 is unconstitutional.8
B. Section 18 1. Preemption
Plaintiffs argue that Section 18 is an impermissible state regulation of immigration because it interferes with the rights bestowed on foreign nations by treaty as well as with the federal government=s responsibilities for the conduct of foreign relations, and is thus preempted. Defendants rejoin that the statute does not directly conflict with any treaty nor does it impede the federal government=s ability to manage foreign affairs, because Section 18 is merely a regulation of acceptable forms of identification to be used within
8 Defendants have apparently abandoned their argument set forth at the preliminary injunction phase that it is as yet undetermined whether the Fourth Amendment even applies to undocumented aliens. Even if they have not abandoned that argument, we read the caselaw to say otherwise. Following the Supreme Court=s decision in Immigration and Naturalization Service v. Lopez-Menoza, 468 U.S. 1032 (1984), in which the Court accepted the principle that the Fourth Amendment does apply to undocumented individuals, courts, including the Seventh Circuit, routinely apply the Fourth Amendment in cases involving undocumented aliens. See, e.g., United States v. Quintana, 623 F.3d 1237, 1239 (8th Cir. 2010); United States v. Villegas, 495 F.3d 761 (7th Cir. 2007).
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the State of Indiana and does not single out or conflict with any identifiable immigration policy or regulation or make any determination as to who is allowed to be admitted into the country or who is allowed to remain once admitted.
Under the Vienna Convention of Consular Relations (“VCCR”), to which the United States is a signatory, foreign consulates are granted permission to issue travel documents, such as passports and visas, as well as other “appropriate documents” to its citizens and to protect and assist its citizens in the foreign country. See Vienna Convention on Consular Relations and Optimal Protocol on Disputes, Dec. 14, 1069, art. V(a), (d)-(e), 21 U.S.T. 77. Although CIDs are not specifically mentioned in the text of the VCCR, it is recognized that, pursuant to the powers set forth therein, CIDs are issued by many “embassies and consulates of foreign states, including the United States, to encourage their citizens abroad to register with the consulates so that they can receive standard consular services, be notified if necessary, and be located upon inquiry by relatives and authorities.” Congressional Research Service, Consular Identification Cards: Domestic and Foreign Policy Implications, the Mexican Case, and Related Legislation, at CRS-1 (2005), available at http://www.fas.org/sgp/crs/misc/RL32094.pdf (last visited March 28, 2013); see also Risk v. Kingdom of Norway, 707 F. Supp. 1159, 1165 (N.D. Cal. 1989), aff’d sub nom. Risk v. Halvorsen, 936 F.2d 393 (9th Cir. 1991) (“The issuance of identification documents is a function recognized as being among the powers exercised by consular officials by the [VCCR].”). Moreover, in congressional
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testimony, a U.S. State Department official testified that the State Department views CIDs as a tool for law enforcement officers to help facilitate observance of the United States’ treaty obligations. See Testimony of Acting Deputy Assistant Secretary of State Roberta Jackson for the Bureau of Western Hemisphere Affairs, Hearing on the Federal Government’s Response to Consular Identification Cards Before the House Subcommittee on Immigration, Border Security, and Claims, House Committee on the Judiciary, 108th Cong. 44-45, at 142-43 (Jun. 26, 2003) (hereinafter “CID Hearing”).
We agree with Defendants that Section 18 does not directly conflict with the VCCR because the statute neither prevents consulates from issuing CIDs nor, arguably, from accepting a CID at the consulate itself. However, as we ruled in our prior order granting preliminary relief to Plaintiffs, while Section 18 does not prohibit a consulate from issuing CIDs, it in essence makes their issuance meaningless as it prohibits almost every use for which the documents are ordinarily issued, including for identification purposes in private commercial and banking transactions conducted between private parties. In light of this extensive limitation imposed by Section 18, we are unable to dismiss the statute’s impact as inconsequential. In fact, it appears that the statute directly interferes with the rights bestowed on foreign nations by treaty by virtually nullifying the issuance of one of the tools used by foreign nations to exercise those rights.
It is also clear that such a sweeping prohibition has the potential to directly interfere with executive discretion in the field of foreign affairs. The executive branch=s
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authority over matters of foreign affairs is an implied constitutional power. Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 610 (1952). “The exercise of the federal executive authority means that state law must give way where ... there is evidence of clear conflict between the policies adopted by the two.” American Ins. Ass=n v. Garamendi, 539 U.S. 396, 421 (2003). The State Department has in the past cautioned the federal government against taking action against CIDs that might cause other countries to similarly restrict the use and acceptance of such documentation for American citizens abroad.9 See CID Hearing at 114 (Testimony of Acting Deputy Assistant Secretary of State Roberta Jackson).
Defendants cite to cases in which courts have found state laws not preempted which deal with matters of traditional state regulation and which have only an indirect impact on foreign policy. See Dunbar v. Seger-Thomschitz, 615 F.3d 574 (5th Cir. 2010) cert. denied, 131 S.Ct. 1511 (2011) (holding that Louisiana prescription period applying generally to any challenge of ownership to movable property was not preempted even though the object of the litigation was Nazi-confiscated artwork); Museum of Fine Arts, Boston v. Seger-Thomschitz, 623 F.3d 1 (1st Cir. 2010) cert. denied, 131 S.Ct. 1612 (2011) reh=g denied, 10-901 2011 WL 1529816 (U.S. Apr. 25. 2011) (holding that statute
9 The risk that a state law could result in similar retaliatory actions by foreign governments is no less a concern. The potential impact that Section 18 has on the United States= relationship and dealings with foreign countries is reflected in the concerns raised by Mexico, Brazil, Guatemala, El Slavador, and Colombia in their amicus curiae briefs filed in this action.
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of limitations on conversion was statute of general regulation that does not conflict with federal policy). Defendants maintain that, similar to the statutes of general application directed toward matters of state concern, Section 18 “does not single out any identifiable immigration policy or regulation, but rather outlines acceptable forms of identification within the State of Indiana.” Defs.’ Resp. at 26.
The defect in Defendants’ argument here is that Section 18 is anything but a neutral law of general application that just happens to have a remote and indirect effect on foreign relations. Rather, it targets only one form of identification B CIDs issued by foreign governments. Moreover, Section 18 regulates CIDs in the broadest possible terms, restricting not just what state agencies may accept as valid identification but prohibiting this form of identification in purely private transactions. “A person,” the statute says, and that is all it says. These sweeping regulations, targeted solely at foreign government-issued identification that consulates are entitled to issue, and which restrict the manner in which foreign citizens may travel, live, and trade in the United States, have a direct effect on our nation’s interactions with foreign nations. Such interactions cannot be dictated or restricted by individual states. For these reasons, we hold that Section 18 is preempted by federal law.
2. Due Process
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Plaintiffs also challenge Section 18 on substantive due process grounds,10 arguing that the statute is arbitrary and bears no rational relation to legitimate government interests. Defendants rejoin that the statute is rationally related to the legitimate government purpose of ensuring the reliability of identification of individuals within the state and preventing fraud against law enforcement, merchants, and consumers.
Under traditional due process analysis, state action must be sustained as long as it bears a rational relation to a legitimate governmental interest. R.A.V. v. City of St. Paul, Minn., 505 U.S. 377, 406 (1992). Even under this highly deferential standard of review, however, we find that Section 18 is violative of due process principles. Although we do not dispute that the stated purpose of ensuring the reliability of identification of individuals within the state and preventing fraud against the state is a legitimate governmental purpose, the breadth of the limitation imposed by Section 18, to wit, preventing any person (other than a police officer) from either knowingly presenting or accepting a CID as a valid form of identification for any purpose far exceeds its stated purpose and therefore is not rational.
10 Defendants argue that Plaintiffs’ due process claim must fail because they have no liberty or property interest in CIDs. However, while a showing of a liberty or property interest is required to succeed on a procedural due process claim, (see, e.g., Board of Regents of State Colleges v. Roth, 408 U.S. 564, 569 (1972)), there is no such requirement to establish a substantive due process violation, which is the claim at issue here. See, e.g., Washington v. Glucksberg, 521 U.S. 702, 728 (1997) (holding that a statute not “rationally related to legitimate government interests” violates substantive due process). Accordingly, we need not address Defendants’ procedural due process argument further.
32

While all parties agree that the State of Indiana has the authority to prohibit the use of various forms of identification, including CIDs, at state agencies, such as the Bureau of Motor Vehicles, Section 18 goes far beyond such regulation to prohibit their use or acceptance in any transaction requiring valid identification, even those between purely private parties who would otherwise be willing to accept CIDs in the context of wholly private transactions. The parties here disagree as to the reliability of CIDs and have submitted competing evidence on that question. However, even assuming that the level of reliability of CIDs varies from country to country, we are still persuaded that CIDs are, at the very least, as reliable as a number of other forms of documentation that individuals are permitted to use for certain identification purposes in Indiana, such as leases, utility bills, and student ID cards. Accordingly, the General Assembly’s decision to single out for punishment individuals using CIDs for identification purposes from all other individuals, many of whom are using other, arguably more unreliable forms of identification, simply does not rationally further the goal of the prevention of fraud or otherwise ensure the reliability of identification.
Additionally, Section 18 forces foreign nationals who are stopped by law enforcement and who may not have actual or practical access to identification other than a CID to choose either to subject themselves to a possible infraction or to decline to comply with a police officer’s request for identification. The statute immunizes the police officers who ask for identification in the course of a criminal investigation, but the
33

person who shows the officer a CID and thus “knowingly or intentionally offers … a consular identification as a valid form of identification” commits an infraction under Section 18. The record establishes that one primary purpose of the CID is to assist and identify foreign nationals who are stopped by law enforcement, and yet, if the CID is used for one of its key purposes, the individual who uses it is subject to an infraction under Section 18, but the police officer who asks for the identification is not.
These examples persuade us that, regrettably in our view, the distinction made in Section 18 to single out the CID for regulation apart from other forms of identification most accurately appears to have been designed simply to target foreign nationals. As the Supreme Court has recognized in the equal protection context, “if the constitutional conception of ‘equal protection of the laws’ means anything, it must at the very least mean that a bare congressional desire to harm a politically unpopular group cannot constitute a legitimate governmental interest.” United States Dep’t of Agriculture v. Moreno, 413 U.S. 528, 534 (1973). For these reasons, we hold that Section 18 is not rationally related to the stated government interest, and thus, violates substantive due process.
III. Plaintiffs’ and the City’s Cross-Motions for Summary Judgment The City argues that, regardless of the merits of the substantive claims against the
other Defendants, it is entitled to summary judgment in its favor because Plaintiffs have failed to establish that there is a municipal custom, policy, or practice at issue in this case
34

that violates federal law, and thus, under Monell v. Department of Social Services, 436 U.S. 658 (1978), the City cannot be held liable under § 1983.11 In analyzing a civil rights claim against a municipality, the first inquiry “under § 1983 is the question whether there is a direct causal link between a municipal policy or custom and the alleged constitutional deprivation.” City of Canton v. Harris, 489 U.S. 378, 385 (1989); accord Monell, 436 U.S. at 694 (“[I]t is when execution of a government’s policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury that the government as an entity is responsible under § 1983.”). In other words, the policy must be the “moving force” behind the violation. Monell, 436 U.S. at 694. “[M]unicipal liability under § 1983 attaches where – and only where – a deliberate choice to follow a course of action is made from among various alternatives by [the municipality] with respect to the subject matter in question.” Pembaur v. City of Cincinnati, 475 U.S. 469, 484 (1986) (citation omitted).
The City argues that Plaintiffs have failed to present evidence that the City has made a conscious and deliberate decision to make arrests and issue citations under the challenged portions of the state statute at issue here, and thus, cannot satisfy the standard for municipal liability set forth in Monell and its progeny. In other words, the City contends that, because Sections 18 and 20 were preliminary enjoined prior to their
11 Although the City’s argument applies equally to the other municipal defendants in this litigation, as Plaintiffs point out, it is not available to the prosecutor defendants represented by the Office of the Attorney General because prosecutors are state officials under Indiana law. See, e.g., Hendricks v. New Albany Police Dept., No. 4:08-cv-180, 2010 WL 4025633, at *3 (S.D. Ind. Oct. 13, 2010).
35

effective date, it never had any opportunity to decide if and how and when it would
enforce those provisions such that it could be said to have established a Monell policy.
The City further argues that, even if Plaintiffs could establish that the City has a policy to
enforce state law as a general matter, the mere enforcement of state law is insufficient to
subject the City to liability under § 1983. Plaintiffs rejoin that the City can be held liable
under § 1983 based on the fact that enforcement of the sections of the statute at issue is
within the City’s discretion and the City has not affirmatively stated that it would decline
to enforce Sections 18 and 20 of SEA 590, should those provisions ever go into effect.
We note that the caselaw, both in this circuit and in our sister circuits, is not
entirely straightforward on the issue of whether and under what circumstances a municipality can be held liable under § 1983 for enforcing a state law,12 but it is
unnecessary for us to delve too deeply into that inquiry because, given the Court’s final
decision here to enjoin the challenged portions of SEA 590 set forth above, we hold that
Plaintiffs’ claim against the City based on its potential enforcement of Sections 18 and 20
is no longer ripe.
In their briefing in opposition to the City’s motion for summary judgment,
Plaintiffs argue that the question of ripeness was already addressed in our prior entry
12 In N.N. ex rel. S.S. v. Madison Metropolitan School District, 670 F. Supp. 2d 927 (W.D. Wis. 2009), for example, the court, in addressing the relevant caselaw both in our circuit and our sister circuits, observed that “circuit courts have come to varying conclusions on the questions whether and to what extent municipalities may be held liable under § 1983 for following state laws” and that “the Supreme Court has yet to discuss [Monell’s] application in the context [of] a municipality’s enforcement of a state law. In this vacuum, lower courts have come to their own unique conclusions.” Id. at 933-34.
36

preliminarily enjoining the challenged sections of SEA 590 and thus need not be revisited now. However, “[l]ike mootness, but unlike standing, ripeness is reevaluated throughout the course of litigation.” Milwaukee Police Ass’n v. Board of Fire & Police Comm’rs of the City of Milwaukee, 708 F.3d 921, 933 (7th Cir. 2013) (citing Anderson v. Green, 513 U.S. 557, 559 (1995) (per curiam) (when evaluating ripeness “it is the situation now rather than the situation at the time of the decision under review that must govern”) (internal brackets and quotations omitted)). “Ripeness concerns may arise when a case involves uncertain or contingent events that may not occur as anticipated, or not occur at all.” Wisconsin Right to Life State Political Action Comm. v. Barland, 664 F.3d 139, 148 (7th Cir. 2011) (citations omitted). In determining whether a claim is ripe for adjudication, courts consider “‘the fitness of the issues for judicial decision’ and ‘the hardship to the parties of withholding court consideration.’” Pac. Gas & Elec. Co. v. State Energy Res. Conservation & Dev. Comm’n, 461 U.S.190, 201 (1983) (quoting Abbott Labs. v. Gardner, 387 U.S. 136, 149 (1967)).
It is clear that Plaintiffs’ claim is based, not on any direct action taken by the City, but on the assumption that if and when the challenged sections of SEA 590 became effective the City would enforce those provisions. At the time we originally addressed the question of ripeness, SEA 590 was about to go into effect and the City had not affirmatively stated that it intended to refrain from enforcing Sections 18 and 20 if they became effective. Accordingly, we found that there was a credible threat of enforcement sufficient to meet the second prong of the ripeness inquiry, to wit, that Plaintiffs would
37

suffer hardship if the court withheld consideration of their claim. However, the posture
of the case has changed and with the Court’s final determination on the merits, including
a permanent injunction prohibiting enforcement of the challenged portions of SEA 590.
Given our ruling, and the Supreme Court’s directive in Los Angeles County, Cal. v.
Humphries, 131 S.Ct. 447 (2010), in which the High Court made clear that civil rights
plaintiffs must meet the standard set forth in Monell in order to successfully sue a
municipality under § 1983 irrespective of whether the remedy sought is money damages
or prospective relief, we conclude that Plaintiffs’ claim against the City is contingent on
the outcome of a variety of intervening acts and scenarios not fully settled at this time.
These uncertainties render the claims against the City premature, and no longer ripe for
adjudication.
In short, even assuming Plaintiffs were able to show that the challenged provisions
of SEA 590 provide the City sufficient discretion such that any decision it might make to
enforce those provisions could be said to be a Monell policy and not merely an action taken under the command of state law,13 the City’s opportunity to make such a decisioin
13 It is clear under Seventh Circuit law that a municipality “cannot be held liable under section 1983 for acts that it did under the command of state or federal law” because “[w]hen the municipality is acting under compulsion of state or federal law, it is the policy contained in that state or federal law, rather than anything devised or adopted by the municipality, that is responsible for the injury.” Bethesda Lutheran Homes & Servs., Inc. v. Leean, 154 F.3d 716, 718 (7th Cir. 1998) (emphasis added). Thus, “the question under Bethesda Lutheran is whether the municipality enforcing a state law has enough discretion in implementation to make the municipality ‘responsible’ for any constitutional violation that occured.” N.N. ex rel. S.S. v. Madison Metro Sch. Dist., 670 F. Supp. 2d 927, 934 (W.D. Wis. 2009). Plaintiffs argue that the City clearly has discretion under Sections 18 and 20 of SEA 590 because, while these sections give local law enforcement officers the power to arrest or issue citations in certain
38

will be entirely foreclosed unless and until these statutes are upheld as constitutional and not preempted. Accordingly, we find that Plaintiffs’ claim against the City is not ripe for adjudication at this time because they face no hardship, immediate injury, or prejudice from the Court’s withholding of a ruling on that claim. IV. Conclusion
As explicated above, Plaintiffs’ Motion for Summary Judgment is GRANTED against the State Defendants and the State Defendants are hereby PERMANENTLY ENJOINED from enforcing the following sections of Senate Enrolled Act 590: Section 18, to be codified as Indiana Code ' 34-28-8.2, and Section 20, which amends Indiana Code ' 35-33-1-1(1), by adding new sections (a)(11)-(a)(13). The State Defendants are hereby further ordered to inform forthwith all the affected Indiana state governmental entities of this injunction. Because we hold Plaintiffs’ claims against the City based on its potential enforcement of Sections 18 and 20 to be unripe for full adjudication and
circumstances, they do not mandate that the City take such action. However, while this specific issue has not been addressed in the Seventh Circuit, there is support in case law from outside our circuit for the proposition that the type of discretion required is not simply the discretion to choose to enforce or not enforce the state statute in an individual situation, but rather that the municipality must have the discretion to choose whether it will enforce the statute or portions of the statute at all. See Vives v. City of New York, 524 F.3d 346, 354 (2d Cir. 2008) (recognizing that these types of discretion are different and finding that the plaintiff was required to show that the defendant city had the latter type of discretion). However, we find no compelling reason to further address these issues in the context of this litigation.
39

decision at this time, those claims are DISMISSED WITHOUT PREJUDICE.14 A final judgment shall enter accordingly.
IT IS SO ORDERED.

Date: _____0_3_/_2_8_/2_0_1_3______________

_______________________________
SARAH EVANS BARKER, JUDGE United States District Court Southern District of Indiana

14 It follows that because these claims are unripe for full adjudication, the City’s cross-motion for summary judgment is DENIED AS MOOT without prejudice to its refilling, if and when appropriate.
40

Distribution:
Gavin Minor Rose ACLU OF INDIANA grose@aclu-in.org
Kenneth J. Falk ACLU OF INDIANA kfalk@aclu-in.org
Andre I. Segura AMERICAN CIVIL LIBERTIES UNION FOUNDATION asegura@aclu.org
Cecillia D. Wang AMERICAN CIVIL LIBERTIES UNION FOUNDATION cwang@aclu.org
Katherine Desormeau AMERICAN CIVIL LIBERTIES UNION FOUNDATION kdesormeau@aclu.org
Lee Gelernt AMERICAN CIVIL LIBERTIES UNION FOUNDATION lgelernt@aclu.org
Omar C. Jadwat AMERICAN CIVIL LIBERTIES UNION FOUNDATION ojadwat@aclu.org
Eric C. Bohnet ATTORNEY AT LAW ebohnet@gmail.com
Jillian Leigh Spotts CITY OF INDIANAPOLIS, CORPORATION COUNSEL jillian.spotts@indy.gov
Matthew J. Piers HUGHES SOCOL PIERS RESNICK & DYM, LTD mpiers@hsplegal.com
41

Jose J. Behar HUGHES SOCOL PIERS RESNICK & DYM, LTD. jbehar@hsplegal.com
Joshua Karsh HUGHES SOCOL PIERS RESNICK & DYM, LTD. jkarsh@hsplegal.com
Garrett R. Roe IMMIGRATION REFORM LAW INSTITUTE groe@irli.org
Adam Clay INDIANA ATTORNEY GENERAL Adam.Clay@atg.in.gov
Jefferson S. Garn INDIANA ATTORNEY GENERAL jefferson.garn@atg.in.gov
Kenneth Lawson Joel INDIANA ATTORNEY GENERAL kenneth.joel@atg.in.gov
Betsy M. Isenberg INDIANA OFFICE OF THE ATTORNEY GENERAL Betsy.Isenberg@atg.in.gov
Micheal M. Hethmon Immigration Reform Law Institute 25 Massachusetts Avenue NW, #335 Washington, DC 20001
Lynnette Gray JOHNSON GRAY& MACABEE vhunter@embarqmail.com
Angela Denise Adams LEWIS & KAPPES aadams@lewis-kappes.com
42

Karen Tumlin NATIONAL IMMIGRATION LAW CENTER tumlin@nilc.org
Karen Tumlin NATIONAL IMMIGRATION LAW CENTER tumlin@nilc.org
Shiu-Ming Cheer NATIONAL IMMIGRATION LAW CENTER cheer@nilc.org
Linton Joaquin National Immigration Law Center joaquin@nilc.org
Linton Joaquin National Immigration Law Center joaquin@nilc.org
Alexander Phillip Will OFFICE OF CORPORATION COUNSEL awill@indygov.org
Patricia Orloff Erdmann OFFICE OF THE ATTORNEY GENERAL Patricia.Erdmann@atg.in.gov
Clifford Lee Reeves, II U.S. DEPARTMENT OF JUSTICE lee.reeves@usdoj.gov
Jill Z. Julian UNITED STATES ATTORNEY’S OFFICE jill.julian@usdoj.gov
William W. Barrett WILLIAMS HEWITT BARRETT & WILKOWSKI LLP wbarrett@wbwlawyers.com
43

 Case: 1:11-cv-708 As of: 03/30/2013 03:52 PM EDT 1 of 22
CMP,CLOSED
U.S. District Court Southern District of Indiana (Indianapolis) CIVIL DOCKET FOR CASE #: 1:11−cv−00708−SEB−MJD

BUQUER et al v. CITY OF INDIANAPOLIS et al Assigned to: Judge Sarah Evans Barker Referred to: Magistrate Judge Mark J. Dinsmore Cause: 42:1983 Civil Rights Act
Plaintiff

Date Filed: 05/25/2011 Date Terminated: 03/29/2013 Jury Demand: None Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question

INGRID BUQUER

represented by Andre I. Segura AMERICAN CIVIL LIBERTIES UNION FOUNDATION IMMIGRANTS' RIGHTS PROJECTS 125 Broad Street, 18th Floor New York, NY 10004−2400 (212) 549−2676 Fax: (212) 549−2654 Email: asegura@aclu.org PRO HAC VICE ATTORNEY TO BE NOTICED

Angela Denise Adams LEWIS &KAPPES One American Square Suite 2500 Indianapolis, IN 46282 (317) 639−1210 Fax: (317) 639−4882 Email: aadams@lewis−kappes.com ATTORNEY TO BE NOTICED

Cecillia D. Wang AMERICAN CIVIL LIBERTIES UNION FOUNDATION IMMIGRANTS' RIGHTS PROJECT 39 Drumm Street San Francisco, CA 94111 (415) 343−0775 Fax: (415) 395−0950 Email: cwang@aclu.org PRO HAC VICE ATTORNEY TO BE NOTICED

Gavin Minor Rose ACLU OF INDIANA 1031 E. Washington Street Indianapolis, IN 46202 317−635−4059 Fax: 317−635−4105 Email: grose@aclu−in.org ATTORNEY TO BE NOTICED

Karen Tumlin NATIONAL IMMIGRATION LAW CENTER 3465 Whlshire Boulevard, Ste 2850 Los Angles, CA 90010 213−639−3900 EX 110 Fax: 213−639−3911 Email: tumlin@nilc.org

Case: 1:11-cv-708 As of: 03/30/2013 03:52 PM EDT 2 of 22
PRO HAC VICE ATTORNEY TO BE NOTICED
Katherine Desormeau AMERICAN CIVIL LIBERTIES UNION FOUNDATION IMMIGRANTS' RIGHTS PROJECT 39 Drumm Street San Francisco, CA 94111 (415) 343−0778 Fax: 415−395−0950 Email: kdesormeau@aclu.org PRO HAC VICE ATTORNEY TO BE NOTICED
Kenneth J. Falk ACLU OF INDIANA 1031 East Washington Street Indianapolis, IN 46202−3952 (317) 635−4059 Fax: (317) 635−4105 Email: kfalk@aclu−in.org ATTORNEY TO BE NOTICED
Lee Gelernt AMERICAN CIVIL LIBERTIES UNION FOUNDATION IMMIGRANTS' RIGHTS PROJECT 125 Broad Street, 18th Floor New York, NY 10004−2400 (212) 549−2620 Fax: (212) 549−2654 Email: lgelernt@aclu.org PRO HAC VICE ATTORNEY TO BE NOTICED
Linton Joaquin National Immigration Law Center Suite 2850 3435 Whishire Blvd Los Angles, CA 90010 213−639−3900 Fax: 213−639−9311 Email: joaquin@nilc.org PRO HAC VICE ATTORNEY TO BE NOTICED
Omar C. Jadwat AMERICAN CIVIL LIBERTIES UNION FOUNDATION IMMIGRANTS' RIGHTS PROJECT 125 Borad Street, 18th Floor New York, NY 10004−2400 (212) 549−2620 Fax: (212) 549−2654 Email: ojadwat@aclu.org PRO HAC VICE ATTORNEY TO BE NOTICED
Shiu−Ming Cheer NATIONAL IMMIGRATION LAW CENTER 3435 Wilshire Boulevard Suite 2850 Los Angeles, CA 90010

Case: 1:11-cv-708 As of: 03/30/2013 03:52 PM EDT 3 of 22

(213) 639−3900 Fax: (213) 639−3911 Email: cheer@nilc.org PRO HAC VICE ATTORNEY TO BE NOTICED

Plaintiff BERLIN URTIZ

represented by Andre I. Segura (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Angela Denise Adams (See above for address) ATTORNEY TO BE NOTICED

Cecillia D. Wang (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Gavin Minor Rose (See above for address) ATTORNEY TO BE NOTICED

Karen Tumlin NATIONAL IMMIGRATION LAW CENTER Ste 2850 3465 Whishire Boulevard Los Angles, CA 90010 213−639−3900 EX 110 Fax: 213−639−3911 Email: tumlin@nilc.org PRO HAC VICE ATTORNEY TO BE NOTICED

Katherine Desormeau (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Kenneth J. Falk (See above for address) ATTORNEY TO BE NOTICED

Lee Gelernt (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Linton Joaquin National Immigration Law Center Suite 2850 3435 Whishire Los Angles, CA 90010 213−639−3900 Fax: 213−639−9311 Email: joaquin@nilc.org PRO HAC VICE ATTORNEY TO BE NOTICED

Omar C. Jadwat (See above for address)

Case: 1:11-cv-708 As of: 03/30/2013 03:52 PM EDT 4 of 22

PRO HAC VICE ATTORNEY TO BE NOTICED

Shiu−Ming Cheer (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Plaintiff
LOUISA ADAIR on their own behalf and on behalf of those similarly situated

represented by Andre I. Segura (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Angela Denise Adams (See above for address) ATTORNEY TO BE NOTICED

Cecillia D. Wang (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Gavin Minor Rose (See above for address) ATTORNEY TO BE NOTICED

Karen Tumlin (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Katherine Desormeau (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Kenneth J. Falk (See above for address) ATTORNEY TO BE NOTICED

Lee Gelernt (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Linton Joaquin (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Omar C. Jadwat (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Shiu−Ming Cheer (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

V. Defendant

Case: 1:11-cv-708 As of: 03/30/2013 03:52 PM EDT 5 of 22

CITY OF INDIANAPOLIS

represented by Alexander Phillip Will OFFICE OF CORPORATION COUNSEL CITY OF INDIANAPOLIS 200 E. Washington Street Suite 1601 Indianapolis, IN 46204 (317) 327−4055 Fax: (317) 327−3968 Email: awill@indygov.org ATTORNEY TO BE NOTICED

Jillian Leigh Spotts CITY OF INDIANAPOLIS, CORPORATION COUNSEL 200 E. Washington Street 1601 City−County Building Indianapolis, IN 46204 317−327−4071 Fax: 317−327−3968 Email: jillian.spotts@indy.gov ATTORNEY TO BE NOTICED

Defendant
MARION COUNTY PROSECUTOR in his official capacity

represented by Betsy M. Isenberg INDIANA OFFICE OF THE ATTORNEY GENERAL 302 West Washington Street IGCS − 5th Floor Indianapolis, IN 46204 (317) 232−6231 Fax: (317) 232−7979 Email: Betsy.Isenberg@atg.in.gov ATTORNEY TO BE NOTICED

Jefferson S. Garn INDIANA ATTORNEY GENERAL 302 West Washington Street, Indiana Government Center South Fifth Floor Indianapolis, IN 46204 317−232−6292 Fax: 317−232−7979 Email: jefferson.garn@atg.in.gov ATTORNEY TO BE NOTICED

Kenneth Lawson Joel INDIANA ATTORNEY GENERAL 302 West Washington Street, Indiana Government Center South Fifth Floor Indianapolis, IN 46204 317−233−8296 Fax: 317−232−7979 Email: kenneth.joel@atg.in.gov ATTORNEY TO BE NOTICED

Patricia Orloff Erdmann OFFICE OF THE ATTORNEY GENERAL 302 West Washington Street IGCS − 5th Floor Indianapolis, IN 46204 (317)232−6318 Fax: (317)232−7979

Case: 1:11-cv-708 As of: 03/30/2013 03:52 PM EDT 6 of 22

Email: Patricia.Erdmann@atg.in.gov ATTORNEY TO BE NOTICED

Defendant CITY OF FRANKLIN

represented by Lynnette Gray JOHNSON GRAY&MACABEE 63 East Court Street P.O. Box 160 Franklin, IN 46131 (317) 738−3365 Fax: (317) 738−3862 Email: vhunter@embarqmail.com ATTORNEY TO BE NOTICED

Defendant
JOHNSON COUNTY SHERIFF in his official capacity

represented by William W. Barrett WILLIAMS HEWITT BARRETT &WILKOWSKI LLP 600 North Emerson Avenue P.O. Box 405 Greenwood, IN 46142 (317) 888−1121 Fax: (317) 887−4069 Email: wbarrett@wbwlawyers.com ATTORNEY TO BE NOTICED

Defendant
JOHNSON COUNTY PROSECUTOR in his official capacity

represented by Betsy M. Isenberg (See above for address) ATTORNEY TO BE NOTICED

Jefferson S. Garn (See above for address) ATTORNEY TO BE NOTICED

Kenneth Lawson Joel (See above for address) ATTORNEY TO BE NOTICED

Patricia Orloff Erdmann (See above for address) ATTORNEY TO BE NOTICED

Amicus
Amicus Curiae United Mexican States Hughes Socol Piers Resnick &Dym, Ltd. 70 Madison St. Suite 4000 Chicago, IL 60602 312−580−0100

represented by Jose J. Behar HUGHES SOCOL PIERS RESNICK &DYM, LTD. 70 Madison St Suite 4000 Chicago, IL 60602 312−604−2614 Fax: 312−604−2615 Email: jbehar@hsplegal.com PRO HAC VICE ATTORNEY TO BE NOTICED

Joshua Karsh HUGHES SOCOL PIERS RESNICK &DYM, LTD. 70 W. Madison Street, Suite 4000 Chicago, IL 60602 312−604−2630

Case: 1:11-cv-708 As of: 03/30/2013 03:52 PM EDT 7 of 22
Fax: 312−604−2631 Email: jkarsh@hsplegal.com PRO HAC VICE ATTORNEY TO BE NOTICED
Matthew J. Piers HUGHES SOCOL PIERS RESNICK &DYM, LTD 70 Madison St. Suite 4000 Chicago, IL 60602 312−604−2606 Fax: 312−604−2607 Email: mpiers@hsplegal.com PRO HAC VICE ATTORNEY TO BE NOTICED

V. Interested Party USA

represented by Clifford Lee Reeves , II U.S. DEPARTMENT OF JUSTICE 20 Massachusetts Avenue, N.W. Washington, DC 20530 202−514−4805 Fax: 202−616−8470 Email: lee.reeves@usdoj.gov ATTORNEY TO BE NOTICED
Jill Z. Julian UNITED STATES ATTORNEY'S OFFICE 10 West Market Street Suite 2100 Indianapolis, IN 46204 (317) 229−2417 Fax: (317) 226−6125 Email: jill.julian@usdoj.gov ATTORNEY TO BE NOTICED

Date Filed 05/25/2011
05/25/2011 05/25/2011 05/25/2011 05/25/2011
05/25/2011

# Docket Text
1 COMPLAINT filed by LOUISA ADAIR, INGRID BUQUER, and BERLIN URTIZ against CITY OF FRANKLIN, CITY OF INDIANAPOLIS, JOHNSON COUNTY PROSECUTOR, JOHNSON COUNTY SHERIFF, and MARION COUNTY PROSECUTOR.(DH) (Entered: 05/25/2011)
2 CIVIL COVER SHEET filed by Plaintiffs, LOUISA ADAIR, INGRID BUQUER, and BERLIN URTIZ. (DH) (Entered: 05/25/2011)
3 NOTICE OF CHALLENGE TO CONSTITUTIONALITY OF A STATE STATUTE filed by Plaintiffs, LOUISA ADAIR, INGRID BUQUER, and BERLIN URTIZ. (DH) (Entered: 05/25/2011)
4 RECEIPT #IP024315 in the amount of $350.00 for filing fee. (DH) (Entered: 05/25/2011)
5 Summonses Issued as to CITY OF FRANKLIN, CITY OF INDIANAPOLIS, JOHNSON COUNTY PROSECUTOR, JOHNSON COUNTY SHERIFF, MARION COUNTY PROSECUTOR and the Office of the Indiana Attorney General. (DH) (Entered: 05/25/2011)
6 NOTICE of Appearance by Jan P. Mensz on behalf of Plaintiffs, LOUISA ADAIR, INGRID BUQUER, and BERLIN URTIZ. (DH) (Entered: 05/25/2011)

Case: 1:11-cv-708 As of: 03/30/2013 03:52 PM EDT 8 of 22

05/25/2011 05/25/2011 05/25/2011 05/25/2011 05/25/2011 05/25/2011 05/25/2011 05/26/2011 05/26/2011
05/26/2011
06/01/2011 06/01/2011 06/01/2011 06/01/2011 06/01/2011 06/01/2011 06/01/2011 06/01/2011 06/01/2011

7 NOTICE of Appearance by Kenneth J. Falk on behalf of Plaintiffs, LOUISA ADAIR, INGRID BUQUER, and BERLIN URTIZ. (DH) (Entered: 05/25/2011)
8 NOTICE of Appearance by Gavin Minor Rose on behalf of Plaintiffs, LOUISA ADAIR, INGRID BUQUER, and BERLIN URTIZ. (DH) (Entered: 05/25/2011)
9 NOTICE of Appearance by Angela Denise Adams on behalf of Plaintiffs, LOUISA ADAIR, INGRID BUQUER, and BERLIN URTIZ. (DH) (Entered: 05/25/2011)
10 MAGISTRATE JUDGE's NOTICE of Availability to Exercise Jurisdiction issued. (DH) (Entered: 05/25/2011)
11 MOTION for Attorney Linton Joaquin to Appear pro hac vice filed by Plaintiffs LOUISA ADAIR, INGRID BUQUER, and BERLIN URTIZ. (Attachments: # 1 Text of Proposed Order)(DH) (Entered: 05/25/2011)
12 MOTION for Attorney Karen C. Tumlin to Appear pro hac vice filed by Plaintiffs, LOUISA ADAIR, INGRID BUQUER, and BERLIN URTIZ. (Attachments: # 1 Text of Proposed Order)(DH) (Entered: 05/25/2011)
13 RECEIPT #IP024316 in the amount of $60.00 for pro hac vice fees of attorneys Karen Tumlin and Linton Joaquin. (DH) (Entered: 05/25/2011)
14 MOTION for Preliminary Injunction, filed by Plaintiffs LOUISA ADAIR, INGRID BUQUER, BERLIN URTIZ. (Attachments: # 1 Text of Proposed Order)(Falk, Kenneth) (Entered: 05/26/2011)
15 ORDER GRANTING 12 Motion to Appear pro hac vice. Attorney Karen Tumlin for LOUISA ADAIR,Karen Tumlin for INGRID BUQUER,Karen Tumlin for BERLIN URTIZ added. Signed by Judge Sarah Evans Barker on 5/26/2011. (CKM) (Entered: 05/26/2011)
16 ORDER GRANTING 11 Motion to Appear pro hac vice. Attorney Linton Joaquin for LOUISA ADAIR,Linton Joaquin for INGRID BUQUER,Linton Joaquin for BERLIN URTIZ added cm. Signed by Judge Sarah Evans Barker on 5/26/2011. (CKM) (Entered: 05/26/2011)
17 NOTICE of Appearance by Robert Howard Schafstall on behalf of Defendant CITY OF FRANKLIN. (Schafstall, Robert) (Entered: 06/01/2011)
18 BRIEF/MEMORANDUM in Support re 14 MOTION for Preliminary Injunction, filed by Plaintiffs LOUISA ADAIR, INGRID BUQUER, BERLIN URTIZ. (Falk, Kenneth) (Entered: 06/01/2011)
25 RECEIPT #IP024420 in the amount of $ 30.00 For Pro Hac Fees by Lee Gelernt. (CKM) (Entered: 06/03/2011)
26 MOTION for Attorney(s) Lee Gelernt to Appear pro hac vice. c/s, filed by Plaintiffs LOUISA ADAIR, INGRID BUQUER, BERLIN URTIZ. (Attachments: # 1 Order)(CKM) (Entered: 06/03/2011)
27 RECEIPT #IP024417 in the amount of $ 30.00 For Pro Hac Fees by Omar Jadwat. (CKM) Modified on 6/3/2011 (CKM). (Entered: 06/03/2011)
28 MOTION for Attorney(s) Omar C. Jadwat to Appear pro hac vice., filed by Plaintiffs LOUISA ADAIR, INGRID BUQUER, BERLIN URTIZ. c/s (Attachments: # 1 Order)(CKM) (Entered: 06/03/2011)
29 RECEIPT #IP024418 in the amount of $ 30.00 For Pro Hac Fees by Andre I Segure. (CKM) (Entered: 06/03/2011)
30 MOTION for Attorney(s) Andre I. Segure to Appear pro hac vice., filed by Plaintiffs LOUISA ADAIR, INGRID BUQUER, BERLIN URTIZ. c/s (Attachments: # 1 Order)(CKM) (Entered: 06/03/2011)
31 RECEIPT #IP054416 in the amount of $ 60.00 For Pro Hac Fees by Katherine Desormeau &Cecillia D. Wang. (CKM) Modified on 6/3/2011 (CKM). (Entered: 06/03/2011)

Case: 1:11-cv-708 As of: 03/30/2013 03:52 PM EDT 9 of 22

06/01/2011 06/01/2011 06/02/2011 06/02/2011 06/02/2011 06/02/2011 06/02/2011
06/02/2011 06/06/2011 06/06/2011 06/06/2011 06/06/2011 06/06/2011 06/07/2011

32 MOTION for Attorney(s) Cecillia D. Wang to Appear pro hac vice., filed by Plaintiffs LOUISA ADAIR, INGRID BUQUER, BERLIN URTIZ. c/s (Attachments: # 1 Order)(CKM) (Entered: 06/03/2011)
33 MOTION for Attorney(s) Katherine Desormeau to Appear pro hac vice. c/s, filed by Plaintiffs LOUISA ADAIR, INGRID BUQUER, BERLIN URTIZ. (Attachments: # 1 Order)(CKM) (Entered: 06/03/2011)
19 NOTICE of Appearance by Wade Dunlap Fulford on behalf of Defendants JOHNSON COUNTY PROSECUTOR, MARION COUNTY PROSECUTOR. (Fulford, Wade) (Entered: 06/02/2011)
20 NOTICE of Appearance by Adam Clay on behalf of Defendants JOHNSON COUNTY PROSECUTOR, MARION COUNTY PROSECUTOR. (Clay, Adam) (Entered: 06/02/2011)
21 NOTICE of Appearance by Betsy M. Isenberg on behalf of Defendants JOHNSON COUNTY PROSECUTOR, MARION COUNTY PROSECUTOR. (Isenberg, Betsy) (Entered: 06/02/2011)
22 NOTICE of Appearance by Tamara Weaver on behalf of Defendants JOHNSON COUNTY PROSECUTOR, MARION COUNTY PROSECUTOR. (Weaver, Tamara) (Entered: 06/02/2011)
23 ENTRY − In accordance with Local Rule 65.2, the Court establishes the following briefing schedule on Plaintiffs' Motion for Preliminary Injunction; Defendants' response brief shall be filed on or before Wednesday, June 15, 2011. Plaintiffs reply brief shall be filed on or before Friday, June 17, 2011 SCHEDULING ORDER: Motion Hearing set for 6/20/2011 02:00 PM in room #307,(Judge Magnus Stinsons courtroom). United States Courthouse, 46 E. Ohio Street,. Signed by Judge Sarah Evans Barker on 6/2/2011.(CKM) (Entered: 06/02/2011)
24 NOTICE of Appearance by Scott Leroy Barnhart on behalf of Defendants JOHNSON COUNTY PROSECUTOR, MARION COUNTY PROSECUTOR. (Barnhart, Scott) (Entered: 06/02/2011)
34 ORDER granting 33 Motion to Appear pro hac vice. Attorney Katherine Desormeau for LOUISA ADAIR,Katherine Desormeau for INGRID BUQUER,Katherine Desormeau for BERLIN URTIZ added cm. Signed by Judge Sarah Evans Barker on 6/6/2011. (MAC) (Entered: 06/06/2011)
35 ORDER granting 26 Motion to Appear pro hac vice. Attorney Lee Gelernt for LOUISA ADAIR,Lee Gelernt for INGRID BUQUER,Lee Gelernt for BERLIN URTIZ added cm. Signed by Judge Sarah Evans Barker on 6/6/2011. (MAC) (Entered: 06/06/2011)
36 ORDER granting 28 Motion to Appear pro hac vice. Attorney Omar C. Jadwat for LOUISA ADAIR,Omar C. Jadwat for INGRID BUQUER,Omar C. Jadwat for BERLIN URTIZ added cm. Signed by Judge Sarah Evans Barker on 6/6/2011. (MAC) (Entered: 06/06/2011)
37 ORDER granting 30 Motion to Appear pro hac vice. Attorney Andre I. Segura for LOUISA ADAIR,Andre I. Segura for INGRID BUQUER,Andre I. Segura for BERLIN URTIZ added cm. Signed by Judge Sarah Evans Barker on 6/6/2011. (MAC) (Entered: 06/06/2011)
38 ORDER granting 32 Motion to Appear pro hac vice. Attorney Cecillia D. Wang for LOUISA ADAIR,Cecillia D. Wang for INGRID BUQUER,Cecillia D. Wang for BERLIN URTIZ added cm. Signed by Judge Sarah Evans Barker on 6/6/2011. (MAC) (Entered: 06/06/2011)
39 MOTION to Certify Class, filed by Plaintiffs LOUISA ADAIR, INGRID BUQUER, BERLIN URTIZ. (Attachments: # 1 Affidavit Jason Flora, # 2 Affidavit Steven L. Tuchman, # 3 Affidavit Sarah L. Moshe, # 4 Affidavit A. Michelle Gutierrez, # 5 Affidavit Thomas G. Robbin, # 6 Affidavit Jessica M. Englert)(Mensz, Jan) (Entered: 06/07/2011)

Case: 1:11-cv-708 As of: 03/30/2013 03:52 PM EDT 10 of 22

06/07/2011 06/09/2011
06/09/2011
06/10/2011 06/10/2011 06/10/2011 06/10/2011 06/10/2011 06/10/2011 06/10/2011 06/10/2011 06/10/2011
06/10/2011 06/10/2011 06/13/2011 06/13/2011 06/13/2011 06/13/2011
06/13/2011

40 BRIEF/MEMORANDUM in Support re 39 MOTION to Certify Class, filed by Plaintiffs LOUISA ADAIR, INGRID BUQUER, BERLIN URTIZ. (Mensz, Jan) (Entered: 06/07/2011)
41 NOTICE of Filing of Additional Affidavits in Support of Mot. for Prelim. Inj. &Mot. for Class Cert. by All Plaintiffs (Attachments: # 1 Affidavit of Ingrid Buquer, # 2 Affidavit of Berlin Urtiz, # 3 Affidavit of Louisa Adair, # 4 Affidavit of Sergio Aguilera) (Rose, Gavin) (Entered: 06/09/2011)
42 MOTION for Entry of Protective Order, filed by Plaintiffs LOUISA ADAIR, INGRID BUQUER, BERLIN URTIZ, Defendants JOHNSON COUNTY PROSECUTOR, MARION COUNTY PROSECUTOR. (Attachments: # 1 Text of Proposed Order Proposed Protective Order)(Isenberg, Betsy) (Entered: 06/09/2011)
43 NOTICE of Appearance by Justin F. Roebel on behalf of Defendant CITY OF INDIANAPOLIS. (Roebel, Justin) (Entered: 06/10/2011)
44 NOTICE of Appearance by Jennifer Lynn Haley on behalf of Defendant CITY OF INDIANAPOLIS. (Haley, Jennifer) (Entered: 06/10/2011)
45 RETURN of Service by CMRRR, filed by All Plaintiffs. CITY OF FRANKLIN served on 5/27/2011. (Mensz, Jan) (Entered: 06/10/2011)
46 RETURN of Service by CMRRR, filed by All Plaintiffs. JOHNSON COUNTY PROSECUTOR served on 5/27/2011. (Mensz, Jan) (Entered: 06/10/2011)
47 RETURN of Service by CMRRR, filed by All Plaintiffs. CITY OF INDIANAPOLIS served on 6/8/2011. (Mensz, Jan) (Entered: 06/10/2011)
48 RETURN of Service by CMRRR, filed by All Plaintiffs. JOHNSON COUNTY SHERIFF served on 5/27/2011. (Mensz, Jan) (Entered: 06/10/2011)
49 RETURN of Service by CMRRR, filed by All Plaintiffs. MARION COUNTY PROSECUTOR served on 5/27/2011. (Mensz, Jan) (Entered: 06/10/2011)
50 NOTICE of Submission of Proposed Certification Pursuant To Rule 5,1, filed by Plaintiffs LOUISA ADAIR, INGRID BUQUER, BERLIN URTIZ (Attachments: # 1 Proposed Certification) (Falk, Kenneth) (Entered: 06/10/2011)
51 *** STRIKEN PER 62 *** MOTION for Attorney(s) Matthew J. Piers; Jose J. Behar; Joshua Karsh to Appear pro hac vice., filed by Amicus Amicus Curiae United Mexican States. (Wilson, Tamara) Modified on 6/15/2011 (CKM). (Entered: 06/10/2011)
52 ***STRIKEN PER 62 *** MOTION for Leave to File Amicus, filed by Amicus Amicus Curiae United Mexican States. (Wilson, Tamara) Modified on 6/15/2011 (CKM). (Entered: 06/10/2011)
53 ***STRIKEN PER 62 *** MOTION for Leave to Join Amicus, filed by Amicus Amicus Curiae United Mexican States. (Wilson, Tamara) Modified on 6/15/2011 (CKM). (Entered: 06/10/2011)
54 NOTICE of Parties' First Extension of Time, filed by Defendant CITY OF INDIANAPOLIS. (Roebel, Justin) (Entered: 06/13/2011)
55 RECEIPT #IP024642 in the amount of $ 90.00 for Pro Hac Fees − Piers, Behar and Karsh. (MAC) (Entered: 06/14/2011)
58 MOTION for Attorney(s) Matthew J. Piers, Jose J. Behar and Joshua Karsh to Appear pro hac vice., filed by Amicus Amicus Curiae United Mexican States. (Attachments: # 1 Text of Proposed Order)(CKM) (Entered: 06/15/2011)
59 MOTION of the United Mexican States for Leave to File an Amicus Brief, filed by Amicus Amicus Curiae United Mexican States. (Attachments: # (Additional attachment(s) added on 6/21/2011: # 1 Brief, # 2 Exhibit A, # 3 Exhibit B) (CKM). Modified on 6/21/2011 (CKM). (Additional attachment(s) added on 6/21/2011: # 4 Order) (CKM). Modified on 6/21/2011 (CKM). (Entered: 06/15/2011)
60 MOTION For Leave to Join the Amicus Brief, filed by Amicus Amicus Curiae United Mexican States. (Attachments: # 1 Order)(CKM) (Entered: 06/15/2011)

Case: 1:11-cv-708 As of: 03/30/2013 03:52 PM EDT 11 of 22

06/15/2011 06/15/2011 06/15/2011 06/15/2011
06/15/2011
06/15/2011
06/16/2011 06/17/2011 06/17/2011 06/17/2011
06/17/2011
06/17/2011

56 NOTICE of Filing of Corrected and Supplemental Affidavit of Ingrid Buquer by All Plaintiffs (Attachments: # 1 Affidavit Corrected and Supplemental Affidavit of Ingrid Buquer) (Mensz, Jan) (Entered: 06/15/2011)
57 NOTICE of Parties' First Extension of Time, filed by Defendant CITY OF FRANKLIN. (Schafstall, Robert) (Entered: 06/15/2011)
61 ***STRIKEN PER ORDER 68 *** MOTION for Attorney(s) Shiu−Ming Cheer to Appear pro hac vice. Filing fee $ 30, receipt number 0756−2014045., filed by Plaintiffs LOUISA ADAIR, INGRID BUQUER, BERLIN URTIZ. (Attachments: # 1 Text of Proposed Order)(Joaquin, Linton) Modified on 6/17/2011 (CKM). (Entered: 06/15/2011)
62 ENTRY STRIKING FILINGS (Docket No. 51, 52 &53) − Filings do not comply with Fed. R. Civ. P. 11, Local Rule 5.11, and section 14 of the Electronic Case Filing Administrative Policies and Procedures Manual for the Southern District of Indiana, they are stricken. The documents at issue may, however, be re−filed in compliance with all applicable federal and local rules. cm. Signed by Judge Sarah Evans Barker on 6/15/2011.(CKM) (Entered: 06/15/2011)
Motions terminated: 51 MOTION for Attorney(s) Matthew J. Piers; Jose J. Behar; Joshua Karsh to Appear pro hac vice. filed by Amicus Curiae United Mexican States, 52 MOTION for Leave to File Amicus filed by Amicus Curiae United Mexican States, 53 MOTION for Leave to Join Amicus filed by Amicus Curiae United Mexican States.. Signed by Judge Sarah Evans Barker on 6/15/2011.(CKM) (Entered: 06/15/2011)
63 RESPONSE in Opposition re 14 MOTION for Preliminary Injunction, filed by Defendants JOHNSON COUNTY PROSECUTOR, MARION COUNTY PROSECUTOR. (Attachments: # 1 Exhibit A − Urtiz Chronological Case Summary, # 2 Exhibit B − Urtiz Information, # 3 Exhibit C − Urtiz Motion to Withdraw Guilty Plea, # 4 Exhibit D − Urtiz Sentencing Order, # 5 Exhibit E − Urtiz Order Vacating Conviction, # 6 Exhibit F − Urtiz Order on Sentencing for Misdemeanor, # 7 Exhibit G − Urtiz Waiver of Rights and Guilty Plea, # 8 Exhibit H − Urtiz Order on Sentencing November 2010)(Isenberg, Betsy) (Entered: 06/15/2011)
66 ORDER GRANTING 58 Motion to Appear pro hac vice. Attorney Matthew J. Piers, Jose J. Beher, Joshua Karsh for Amicus Curiae United Mexican States added cm. Signed by Judge Sarah Evans Barker on 6/16/2011. (CKM) (Entered: 06/17/2011)
64 NOTICE of Parties' First Extension of Time, filed by Defendants JOHNSON COUNTY PROSECUTOR, MARION COUNTY PROSECUTOR. (Isenberg, Betsy) (Entered: 06/17/2011)
65 REPLY in Support of Motion re 14 MOTION for Preliminary Injunction, filed by Plaintiffs LOUISA ADAIR, INGRID BUQUER, BERLIN URTIZ. (Attachments: # 1 Affidavit Buquer−Second Supplemental)(Falk, Kenneth) (Entered: 06/17/2011)
67 ORDER GRANTING 42 Motion for Protective Order. This Order shall continue to be binding throughout and after the conclusion of this litigation, including all appeals. Within thirty days of settlement or final adjudication, includingbut not limited to final adjudication of any appeals, all immigration records produced in this litigation shall be returned to counsel for Plaintiffs. (S.O.). Signed by Judge Sarah Evans Barker on 6/16/2011. (CKM) (Entered: 06/17/2011)
68 ORDER REGARDING ELECTRONIC FILING ERROR ; 61 MOTION for Attorney(s) Shiu−Ming Cheer to Appear pro hac vice. The Court will not accept said motion and it is hereby STRICKEN. The lawyers are, however, granted leave to correct their electronic filing error and re−file said motion in accordance with all applicable rules. (S.O.). Signed by Judge Sarah Evans Barker on 6/16/2011.(CKM) (Entered: 06/17/2011)
69 CERTIFICATION OF CHALLENGE TO CONSTITUTIONALITY OF INDIANA LAW: Pursuant to Rule 5.1 of the Federal Rules of Civil Procedure and 28 U.S.C. § 2403, you are hereby notified that this case challenges the constitutionality of portions of SEA 590, to become effective on July 1, 2011.

Case: 1:11-cv-708 As of: 03/30/2013 03:52 PM EDT 12 of 22

06/17/2011
06/20/2011 06/20/2011
06/20/2011 06/21/2011 06/21/2011
06/23/2011 06/23/2011 06/24/2011 06/27/2011 06/27/2011 07/08/2011 07/14/2011 07/14/2011

Signed by Magistrate Judge Mark J. Dinsmore on 6/17/2011.(SWM) (Entered: 06/17/2011)
70 SCHEDULING ENTRY: Status Conference set for 6/21/2011 10:30 AM in Telephonic before Magistrate Judge Mark J. Dinsmore. The purpose of this conference is to discuss the Joint Motion for An Entry of Protective Order. Counsel shall attend the conference by calling the phone number to be provided by the court in an email. Signed by Magistrate Judge Mark J. Dinsmore on 6/17/2011.(SWM) (Entered: 06/17/2011)
72 NOTICE of Appearance by William W. Barrett on behalf of Defendant JOHNSON COUNTY SHERIFF. (Barrett, William) (Entered: 06/20/2011)
75 Minute Entry for proceedings held before Judge Sarah Evans Barker: Motion Hearing held on 6/20/2011 re 14 MOTION for Preliminary Injunction filed by LOUISA ADAIR, INGRID BUQUER, BERLIN URTIZ. The hearing was held and concluded (Court Reporter Laura Howei Walters.) (CKM) (Entered: 06/21/2011)
76 RESPONSE in Opposition re 14 MOTION for Preliminary Injunction, filed by Amicus Amicus Curiae United Mexican States. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(CKM) (Entered: 06/21/2011)
73 SCHEDULING ENTRY: The telephonic status conference currently scheduled for Tuesday, June 21, 2011 at 10:30 a.m. is hereby VACATED. Signed by Magistrate Judge Mark J. Dinsmore on 6/21/2011.(SWM) (Entered: 06/21/2011)
74 ORDER GRANTING 59 Motion for Leave to File Amicus Brief in Support. The Clerk shall detach and file the amicus brief and supporting exhibits tendered at Docket Nos. 59−2, 59−3, and 59−4. ; GRANTING 60 Motion for Leave to Join Amicus Brief. The record shall reflect that the countries of Brazil, Guatemala, El Salvador, and Columbia join in the legal arguments presented in the amicus brief filed by the United Mexican States. Signed by Judge Sarah Evans Barker on 6/20/2011. (CKM) (Entered: 06/21/2011)
77 Unopposed MOTION for Extension of Time to July 8, 2011 to file response to 39 MOTION to Certify Class, filed by Defendants JOHNSON COUNTY PROSECUTOR, MARION COUNTY PROSECUTOR. (Attachments: # 1 Text of Proposed Order)(Isenberg, Betsy) (Entered: 06/23/2011)
78 MOTION for Attorney(s) Shiu−Ming Cheer to Appear pro hac vice., filed by Plaintiff INGRID BUQUER. c/s (Attachments: # 1 Text of Proposed Order)(CKM) (Entered: 06/23/2011)
79 ORDER granting 14 Motion for Preliminary Injunction. Sections 18 and 19 of Senate Enrolled Act 590 are enjoined. Signed by Judge Sarah Evans Barker on 6/24/2011. (PGS) (Entered: 06/24/2011)
80 ORDER granting 78 Motion to Appear pro hac vice. Attorney Shiu−Ming Cheer for LOUISA ADAIR,Shiu−Ming Cheer for INGRID BUQUER,Shiu−Ming Cheer for BERLIN URTIZ added cm. Signed by Judge Sarah Evans Barker on 6/27/2011. (MAC) (Entered: 06/28/2011)
81 ORDER granting defts Marion County Prosecutor and Johnson County Prosecutor's 77 Motion for Extension of Time to File Response to 7/8/2011 re 39 MOTION to Certify Class. Signed by Magistrate Judge Mark J. Dinsmore on 6/27/2011. (SWM) (Entered: 06/28/2011)
82 STIPULATION to Certify Case as a Class Action, filed by Plaintiffs LOUISA ADAIR, INGRID BUQUER, BERLIN URTIZ, Defendants JOHNSON COUNTY PROSECUTOR, MARION COUNTY PROSECUTOR. (Attachments: # 1 Text of Proposed Order)(Isenberg, Betsy) (Entered: 07/08/2011)
83 ANSWER to 1 Complaint, filed by CITY OF FRANKLIN.(Schafstall, Robert) (Entered: 07/14/2011)
84 ORDER re 82 Stipulation to certify Case as a Class Action filed by LOUISA ADAIR, JOHNSON COUNTY PROSECUTOR, MARION COUNTY

Case: 1:11-cv-708 As of: 03/30/2013 03:52 PM EDT 13 of 22

07/15/2011 07/15/2011 07/21/2011
08/18/2011 08/19/2011 08/19/2011
08/22/2011 08/23/2011
08/26/2011 08/26/2011
09/06/2011

PROSECUTOR, INGRID BUQUER, BERLIN URTIZ. The Court having read the Stipulation, and being duly advised, finds that good cause exists to grant it. IT IS FURTHER ORDERED that Kenneth J. Falk, Gavin Rose, Jan P. Mensz and the remainder of plaintiffs' counsel are appointed as counsel for the class. *** SEE ENTRY FOR FURTHER INFORMATION ***. Signed by Judge Sarah Evans Barker on 7/14/2011.(CKM) (Entered: 07/14/2011)
85 DEFENDANT CITY OF INDIANAPOLIS ANSWER to 1 Complaint AND AFFIRMATIVE DEFENSES, filed by CITY OF INDIANAPOLIS.(Roebel, Justin) (Entered: 07/15/2011)
86 ANSWER to 1 Complaint and Statement of Defenses, filed by JOHNSON COUNTY PROSECUTOR, MARION COUNTY PROSECUTOR.(Isenberg, Betsy) (Entered: 07/15/2011)
87 SCHEDULING ENTRY: Initial Pretrial Conference set for 8/30/2011 04:15 PM in room #257, United States Courthouse, 46 E. Ohio Street, Indianapolis, Indiana before Magistrate Judge Mark J. Dinsmore. The parties shall file a proposed Case Management Plan ("CMP") no fewer than seven days before the pretrial conference (see Entry for additional information). Signed by Mark J. Dinsmore on 7/21/2011.(SWM) (Entered: 07/21/2011)
88 NOTICE of Filing Agreed Entry between Plaintiffs and Johnson County Sheriff by All Plaintiffs (Falk, Kenneth) (Entered: 08/18/2011)
89 CASE MANAGEMENT PLAN TENDERED, filed by Plaintiffs LOUISA ADAIR, INGRID BUQUER, BERLIN URTIZ and Defendants CITY OF FRANKLIN, CITY OF INDIANAPOLIS, JOHNSON COUNTY PROSECUTOR, JOHNSON COUNTY SHERIFF, and MARION COUNTY PROSECUTOR. (Falk, Kenneth) Modified on 8/22/2011 (JD). (Entered: 08/19/2011)
90 MOTION to Approve Stipulation of the Parties to Amend Preliminary Injunction Order, filed by Plaintiffs LOUISA ADAIR, INGRID BUQUER, BERLIN URTIZ and Defendants CITY OF FRANKLIN, CITY OF INDIANAPOLIS, JOHNSON COUNTY PROSECUTOR, JOHNSON COUNTY SHERIFF, and MARION COUNTY PROSECUTOR. (Attachments: # 1 Text of Proposed Order)(Falk, Kenneth) Modified on 8/22/2011 (JD). (Entered: 08/19/2011)
91 ORDER − Acknowledges Agreed Entry by Parties in regards to the Sherriff. *** See Entry ***(marginal notation). Signed by Judge Sarah Evans Barker on 8/22/2011.(CKM) (Entered: 08/23/2011)
92 ORDER GRANTING 90 Motion to Approve Stipulation of the Parties toAmend Preliminary Injunction Order. IT IS THEREFORE ORDERED that all references in the Order Granting Plaintiffs' Motion for Preliminary Injunction (Doc. No. 79) to Section 19 of Senate Enrolled Act 590 shall be deemed to refer to Section 20 of Senate Enrolled Act 590. Signed by Judge Sarah Evans Barker on 8/23/2011. (CKM) (Entered: 08/24/2011)
93 NOTICE of FILING of OFFICIAL TRANSCRIPT of Preliminary Injunction held before Judge Sarah Evans Barker on 6/20/11 (Howie−Walters, Laura) (Entered: 08/26/2011)
94 TRANSCRIPT of Preliminary Injunction Hearing held on 6/20/11 before Judge Sarah Evans Barker. (75 pages.) Court Reporter/Transcriber: Laura Howie−Walters (Telephone: (317) 632−3422). Please review the USDC Transcript Policy for more information on redaction procedures. Redaction Statement due 9/16/2011. Release of Transcript Restriction set for 11/25/2011. (Howie−Walters, Laura) Released on 11/29/2011 (SWM). (Entered: 08/26/2011)
95 ORDER: CASE MANAGEMENT PLAN APPROVED AS AMENDED, Dispositive Motions due by 4/25/2012. Upon approval, this Plan constitutes an Order of the Court. Failure to comply with an Order of the Court may result in sanctions for contempt, or as provided under Rule 16(f), to and including dismissal or default. Approved and So Ordered.. Signed by Magistrate Judge Mark J. Dinsmore on 9/6/2011.(CKM) (Entered: 09/06/2011)

Case: 1:11-cv-708 As of: 03/30/2013 03:52 PM EDT 14 of 22

09/08/2011
09/08/2011
09/22/2011 09/23/2011 10/05/2011
10/11/2011 10/11/2011 10/11/2011 10/11/2011 10/14/2011 10/14/2011
10/19/2011

96 SCHEDULING ORDER: Final Pretrial Conference set for 11/7/2012 02:00 PM in room #210, United States Courthouse, 46 E. Ohio Street, Indianapolis, Indiana before Judge Sarah Evans Barker. Jury Trial set for 11/14/2011 09:30 AM in room #216, United States Courthouse, 46 E. Ohio Street, Indianapolis, Indiana before Judge Sarah Evans Barker. Signed by Judge Sarah Evans Barker on 9/8/2011.(CKM) (Entered: 09/09/2011)
97 SCHEDULING ORDER: Final Pretrial Conference set for 11/7/2012 02:00 PM in room #210, United States Courthouse, 46 E. Ohio Street, Indianapolis, Indiana before Judge Sarah Evans Barker. Bench Trial set for 11/14/2012 09:30 AM in room #216, United States Courthouse, 46 E. Ohio Street, Indianapolis, Indiana before Judge Sarah Evans Barker. Signed by Judge Sarah Evans Barker on 9/8/2011.(CKM) Modified on 9/9/2011 (CKM). (Entered: 09/09/2011)
98 NOTICE of Service of Initial Disclosures, filed by Plaintiffs LOUISA ADAIR, INGRID BUQUER, BERLIN URTIZ. (Falk, Kenneth) (Entered: 09/22/2011)
99 NOTICE of Service of Initial Disclosures, filed by Defendants JOHNSON COUNTY PROSECUTOR, MARION COUNTY PROSECUTOR. (Isenberg, Betsy) (Entered: 09/23/2011)
100 Minute Entry for proceedings held before Magistrate Judge Mark J. Dinsmore: Initial Pretrial Conference held on 8/30/2011. The Court will approve the Case Management Plan, by separate order, with the changes to which the parties have agreed. Status Conference set for 10/13/2011 04:45 PM in Telephonic before Magistrate Judge Mark J. Dinsmore. The purpose of this conference is to discuss the status of discovery. Counsel shall attend the status conference by calling the designated phone number, to be provided by the court via email. Signed by Magistrate Judge Mark J. Dinsmore(SWM) (Entered: 10/06/2011)
102 MOTION to Amend/Correct 86 Answer to Complaint and Statement of Defenses, filed by Defendants JOHNSON COUNTY PROSECUTOR, MARION COUNTY PROSECUTOR. (Attachments: # 1 Proposed Amended Answer and Statement of Defenses, # 2 Text of Proposed Order)(Isenberg, Betsy) (Entered: 10/11/2011)
103 BRIEF/MEMORANDUM in Support re 102 MOTION to Amend/Correct 86 Answer to Complaint and Statement of Defenses, filed by Defendants JOHNSON COUNTY PROSECUTOR, MARION COUNTY PROSECUTOR. (Isenberg, Betsy) (Entered: 10/11/2011)
104 MOTION for Joinder of a Necessary Party, filed by Defendants JOHNSON COUNTY PROSECUTOR, MARION COUNTY PROSECUTOR. (Attachments: # 1 Text of Proposed Order)(Isenberg, Betsy) (Entered: 10/11/2011)
105 BRIEF/MEMORANDUM in Support re 104 MOTION for Joinder of a Necessary Party, filed by Defendants JOHNSON COUNTY PROSECUTOR, MARION COUNTY PROSECUTOR. (Isenberg, Betsy) (Entered: 10/11/2011)
106 RESPONSE in Opposition re 104 MOTION for Joinder of a Necessary Party, 102 MOTION to Amend/Correct 86 Answer to Complaint and Statement of Defenses, filed by Plaintiffs LOUISA ADAIR, INGRID BUQUER, BERLIN URTIZ. (Rose, Gavin) (Entered: 10/14/2011)
107 Minute Entry for proceedings held before Magistrate Judge Mark J. Dinsmore: Telephonic Status Conference held on 10/13/2011. The parties discussed discovery and the pending Motion to Amend/Correct the Answer to Complaint and Statement of Defenses [dkt. 102] and Motion for Joinder of a Necessary Party [dkt.104]. Plaintiff intends to oppose both motions. Status Conference set for 1/18/2012 03:00 PM in Telephonic before Magistrate Judge Mark J. Dinsmore. The purpose of this conference is to discuss case status. Counsel shall attend the status conference by calling the designated phone number, to be provided by the court via email. Signed by Magistrate Judge Mark J. Dinsmore.(SWM) (Entered: 10/14/2011)
108 MOTION for Extension of Time to to file reply to 102 MOTION to Amend/Correct 86 Answer to Complaint and Statement of Defenses, filed by Defendants JOHNSON COUNTY PROSECUTOR, MARION COUNTY PROSECUTOR. (Attachments: # 1 Text of Proposed Order)(Isenberg, Betsy) (Entered: 10/19/2011)

Case: 1:11-cv-708 As of: 03/30/2013 03:52 PM EDT 15 of 22

10/19/2011 10/20/2011
10/20/2011
10/25/2011 10/28/2011 10/28/2011 11/03/2011 11/04/2011 11/04/2011 11/15/2011 11/16/2011 11/17/2011 11/18/2011
11/20/2011

109 MOTION for Extension of Time to to file reply to 104 MOTION for Joinder of a Necessary Party, filed by Defendants JOHNSON COUNTY PROSECUTOR, MARION COUNTY PROSECUTOR. (Attachments: # 1 Text of Proposed Order)(Isenberg, Betsy) (Entered: 10/19/2011)
110 ORDER granting Defts Marion County Prosecutor and Johnson County Prosecutor's 108 Motion for Extension of Time to File Reply re 102 MOTION to Amend/Correct 86 Answer to Complaint and Statement of Defenses to seven days after the United States files its response to defts' motion to join a necessary party. Signed by Magistrate Judge Mark J. Dinsmore on 10/20/2011. (SWM) (Entered: 10/20/2011)
111 ORDER granting Defts Marion County Prosecutor and Johnson County Prosecutor's 109 Motion for Extension of Time to File Reply re 104 MOTION for Joinder of a Necessary Party to seven days after the United States files it response. Signed by Magistrate Judge Mark J. Dinsmore on 10/20/2011. (SWM) (Entered: 10/20/2011)
112 Witness List −Preliminary−, filed by Plaintiffs LOUISA ADAIR, INGRID BUQUER, BERLIN URTIZ, Exhibit List −Preliminary−, filed by Plaintiffs LOUISA ADAIR, INGRID BUQUER, BERLIN URTIZ. (Falk, Kenneth) (Entered: 10/25/2011)
113 NOTICE of Appearance by Clifford Lee Reeves, II on behalf of Interested Party, UNITED STATES OF AMERICA. (Reeves, Clifford) Modified on 10/31/2011 (PGS). (Entered: 10/28/2011)
114 RESPONSE in Opposition re 104 MOTION for Joinder of a Necessary Party, filed by Interested Party, UNITED STATES OF AMERICA. (Reeves, Clifford) Modified on 10/31/2011 (PGS). (Entered: 10/28/2011)
115 NOTICE of Appearance by Jill Z. Julian on behalf of Interested Party USA. (Julian, Jill) (Entered: 11/03/2011)
116 REPLY in Support of Motion re 102 MOTION to Amend/Correct 86 Answer to Complaint and Statement of Defenses, filed by Defendants JOHNSON COUNTY PROSECUTOR, MARION COUNTY PROSECUTOR. (Isenberg, Betsy) (Entered: 11/04/2011)
117 REPLY in Support of Motion re 104 MOTION for Joinder of a Necessary Party, filed by Defendants JOHNSON COUNTY PROSECUTOR, MARION COUNTY PROSECUTOR. (Isenberg, Betsy) (Entered: 11/04/2011)
118 NOTICE of Substitution of Appearance by Patricia Orloff Erdmann replacing Wade Dunlap Fulford and Tamara Weaver on behalf of JOHNSON COUNTY PROSECUTOR, MARION COUNTY PROSECUTOR (Erdmann, Patricia) (Entered: 11/15/2011)
119 ENTRY Approves re 118 Notice of Substitution of Appearance filed by JOHNSON COUNTY PROSECUTOR, MARION COUNTY PROSECUTOR (Marginal Notation). Signed by Judge Sarah Evans Barker on 11/16/2011.(MAC) (Entered: 11/17/2011)
120 MOTION to Withdraw as Attorney Jennifer Haley, filed by Defendant CITY OF INDIANAPOLIS. (Attachments: # 1 Text of Proposed Order)(Roebel, Justin) (Entered: 11/17/2011)
121 Joint MOTION to Amend/Correct 84 Order (Motion to Amend Definition of Class A), filed by Plaintiffs LOUISA ADAIR, INGRID BUQUER, BERLIN URTIZ, Defendants JOHNSON COUNTY PROSECUTOR, MARION COUNTY PROSECUTOR. (Attachments: # 1 Text of Proposed Order)(Rose, Gavin) (Entered: 11/18/2011)
122 MOTION for Summary Judgment, filed by Plaintiffs LOUISA ADAIR, INGRID BUQUER, BERLIN URTIZ. (Attachments: # 1 Affidavit (Supp. Aff. of Berlin Urtiz))(Rose, Gavin) (Entered: 11/20/2011)

Case: 1:11-cv-708 As of: 03/30/2013 03:52 PM EDT 16 of 22

11/20/2011 11/28/2011
11/28/2011 11/28/2011 11/28/2011 11/29/2011 11/29/2011 11/30/2011 12/02/2011 12/15/2011
12/15/2011
12/16/2011 12/19/2011 12/20/2011
12/21/2011 12/21/2011 12/21/2011

123 BRIEF/MEMORANDUM in Support re 122 MOTION for Summary Judgment, filed by Plaintiffs LOUISA ADAIR, INGRID BUQUER, BERLIN URTIZ. (Rose, Gavin) (Entered: 11/20/2011)
124 Witness List Preliminary, filed by Defendants JOHNSON COUNTY PROSECUTOR, MARION COUNTY PROSECUTOR, Exhibit List Preliminary, filed by Defendants JOHNSON COUNTY PROSECUTOR, MARION COUNTY PROSECUTOR. (Isenberg, Betsy) (Entered: 11/28/2011)
125 Witness List Preliminary, filed by Defendant CITY OF INDIANAPOLIS. (Roebel, Justin) (Entered: 11/28/2011)
126 Exhibit List Preliminary, filed by Defendant CITY OF INDIANAPOLIS. (Roebel, Justin) (Entered: 11/28/2011)
129 ORDER granting Joint 121 Motion to Amend/Correct Definition of Class A. (See Order for definition). Signed by Judge Sarah Evans Barker on 11/28/2011. (MAC) (Entered: 11/29/2011)
127 ORDER granting 120 Motion to Withdraw Attorney Appearance. Attorney Jennifer Lynn Haley withdrawn. Signed by Judge Sarah Evans Barker on 11/29/2011. (MAC) (Entered: 11/29/2011)
128 Submission of Signature Requirement re 124 Witness ListExhibit List by JOHNSON COUNTY PROSECUTOR, MARION COUNTY PROSECUTOR. (Isenberg, Betsy) (Entered: 11/29/2011)
130 MOTION to Withdraw Attorney Appearance of Jan P. Mensz, filed by Plaintiffs LOUISA ADAIR, INGRID BUQUER, BERLIN URTIZ. (Attachments: # 1 Text of Proposed Order)(Rose, Gavin) (Entered: 11/30/2011)
131 ORDER granting 130 Motion to Withdraw Attorney Appearance. Attorney Jan P. Mensz withdrawn. Signed by Judge Sarah Evans Barker on 12/2/2011. (CKM) (Entered: 12/02/2011)
132 MOTION Pursuant to Rule 56(d) of Federal Rules of Civil Procedure, filed by Defendants JOHNSON COUNTY PROSECUTOR, MARION COUNTY PROSECUTOR. (Attachments: # 1 Affidavit of Counsel Betsy M. Isenberg)(Isenberg, Betsy) (Entered: 12/15/2011)
133 BRIEF/MEMORANDUM in Support re 132 MOTION Pursuant to Rule 56(d) of Federal Rules of Civil Procedure, filed by Defendants JOHNSON COUNTY PROSECUTOR, MARION COUNTY PROSECUTOR. (Isenberg, Betsy) (Entered: 12/15/2011)
134 RESPONSE in Opposition re 132 MOTION Pursuant to Rule 56(d) of Federal Rules of Civil Procedure, filed by Plaintiffs LOUISA ADAIR, INGRID BUQUER, BERLIN URTIZ. (Rose, Gavin) (Entered: 12/16/2011)
135 NOTICE of Appearance by Jefferson S. Garn on behalf of Defendants JOHNSON COUNTY PROSECUTOR, MARION COUNTY PROSECUTOR. (Garn, Jefferson) (Entered: 12/19/2011)
136 MOTION for Extension of Time to to file response to 122 MOTION for Summary Judgment, filed by Defendants JOHNSON COUNTY PROSECUTOR, MARION COUNTY PROSECUTOR. (Attachments: # 1 Text of Proposed Order)(Isenberg, Betsy) (Entered: 12/20/2011)
137 Cross MOTION for Summary Judgment, filed by Defendant CITY OF INDIANAPOLIS. (Roebel, Justin) (Entered: 12/21/2011)
138 RESPONSE in Opposition re 122 MOTION for Summary Judgment and Brief in Support re 137 Cross−Motion for Summary Judgment, filed by Defendant CITY OF INDIANAPOLIS. (Roebel, Justin) (Entered: 12/21/2011)
139 MOTION to Stay of Proceedings, filed by Defendants JOHNSON COUNTY PROSECUTOR, MARION COUNTY PROSECUTOR. (Isenberg, Betsy) (Entered: 12/21/2011)

Case: 1:11-cv-708 As of: 03/30/2013 03:52 PM EDT 17 of 22

12/28/2011 12/28/2011 12/29/2011
01/03/2012 01/03/2012 01/04/2012 01/04/2012 01/05/2012
01/06/2012 01/09/2012 01/12/2012

140 RESPONSE in Opposition re 139 MOTION to Stay of Proceedings, filed by Plaintiffs LOUISA ADAIR, INGRID BUQUER, BERLIN URTIZ. (Falk, Kenneth) (Entered: 12/28/2011)
141 REPLY in Support of Motion re 132 MOTION Pursuant to Rule 56(d) of Federal Rules of Civil Procedure, filed by Defendants JOHNSON COUNTY PROSECUTOR, MARION COUNTY PROSECUTOR. (Isenberg, Betsy) (Entered: 12/28/2011)
142 ORDER on Briefing Schedule and Hearing: This cause comes before the court on Defendant, Johnson County Prosecutor, Marion County Prosecutor's Motion Pursuant to Rule 56(d)of the Federal Rules of Civil Procedure [Dkt. 132], Defendant, Johnson County Prosecutor, Marion County Prosecutor's Motion for Extension of Time to File a Response to Motion for Summary Judgement [Dkt. 136] and Defendant, Johnson County Prosecutor, Marion County Prosecutor's Motion to Stay Proceedings [Dkt. 139]. Any briefs in response to Defendant's Motions are due by Tuesday, January 3, 2012. Any briefs in reply are due by Friday, January 13, 2012. Hearing on Motions set for 1/23/2012 09:00 AM in room #243, United States Courthouse, 46 E. Ohio Street, Indianapolis, Indiana before Magistrate Judge Mark J. Dinsmore. Signed by Magistrate Judge Mark J. Dinsmore on 12/29/2011.(SWM) (Entered: 12/29/2011)
143 NOTICE of Substitution of Appearance by Lynnette Gray replacing Robert H. Schafstall on behalf of CITY OF FRANKLIN (Gray, Lynnette) (Entered: 01/03/2012)
144 MOTION to Join in Defendants' Motion for Extension of Time to File a Response to Motion for Summary Judgment, filed by Defendant CITY OF FRANKLIN. (Attachments: # 1 Text of Proposed Order Granting Motion to Join in Defendants' Motion for Extension of Time to File a Response to Motion for Summary Judgment, # 2 Text of Proposed Order Extending time to File a Response to Motion for Summary Judgment)(Gray, Lynnette) (Entered: 01/03/2012)
145 RESPONSE in Opposition re 137 Cross MOTION for Summary Judgment and Reply in Support of Motion for Summary Judgment, filed by Plaintiffs LOUISA ADAIR, INGRID BUQUER, BERLIN URTIZ. (Rose, Gavin) (Entered: 01/04/2012)
146 ORDER − Approves re 143 Notice of Substitution of Appearance filed by CITY OF FRANKLIN, Attorney Lynette Gray for CITY OF FRANKLIN added. Attorney Robert Howard Schafstall terminated. (marginal notation). Signed by Judge Sarah Evans Barker on 1/4/2012.(CKM) (Entered: 01/05/2012)
147 ORDER on Briefing Schedule and Hearing: This cause comes before the court on Defendant, City of Franklin's Motion to Join Defendants' Motion for Extension of Time to File a Response to Motion for Summary Judgement [Dkt.144]. Any briefs in response to Defendant's Motion are due by Monday, January 9, 2012. Any briefs in reply are due by Friday, January 13, 2012. This matter is set for a hearing on Defendant, City of Franklin's Motion Monday, January 23, 2012 at 9:00 a.m. in Room 243, United States Courthouse, 46 East Ohio Street, Indianapolis,Indiana, before Magistrate Judge Mark J. Dinsmore. Signed by Magistrate Judge Mark J. Dinsmore on 1/5/2012.(SWM) (Entered: 01/06/2012)
148 RESPONSE to Motion re 144 MOTION to Join in Defendants' Motion for Extension of Time to File a Response to Motion for Summary Judgment, filed by Plaintiffs LOUISA ADAIR, INGRID BUQUER, BERLIN URTIZ. (Rose, Gavin) (Entered: 01/06/2012)
149 ORDER denying 102 Motion to Amend/Correct; denying 104 Motion for Joinder. DENYING State Defendants' Motion to Join a Necessary Party. In accordance with this denial, we also DENY State Defendants Motion for Leave to Amend Answer. IT IS SO ORDERED. Signed by Judge Sarah Evans Barker on 1/9/2012. *** SEE ORDER *** cm (CKM) Modified on 1/10/2012 (CKM). (Entered: 01/10/2012)
150 SCHEDULING ORDER: The Court, sua sponte, VACATES the telephonic status conference currently scheduled for January 18, 2011 [dkt. 107]. The hearing currently scheduled for January 23, 2012 at 9:00 a.m. [dkts. 142 and 147] remain on calendar as scheduled. All other requirements of the Court's Orders, [dkt. 107,

Case: 1:11-cv-708 As of: 03/30/2013 03:52 PM EDT 18 of 22

01/12/2012 01/23/2012 01/23/2012 01/23/2012
01/26/2012 01/30/2012 01/30/2012 02/06/2012
02/09/2012 02/14/2012

142 and 147]remain in full force and effect. Signed by Magistrate Judge Mark J. Dinsmore on 1/12/2012.(SWM) (Entered: 01/12/2012)
151 REPLY in Support of Motion re 139 MOTION to Stay of Proceedings , filed by Defendants JOHNSON COUNTY PROSECUTOR, MARION COUNTY PROSECUTOR. (Barnhart, Scott) (Entered: 01/12/2012)
152 REPLY in Support of Motion re 137 Cross MOTION for Summary Judgment , filed by Defendant CITY OF INDIANAPOLIS. (Roebel, Justin) (Entered: 01/23/2012)
153 Designation of Evidence re 137 Cross MOTION for Summary Judgment , filed by Defendant CITY OF INDIANAPOLIS. (Attachments: # 1 Exhibit A. Indianapolis Metropolitan Police Department General Order 1.11, # 2 Exhibit B. Indianapolis Metropolitan Police Department General Order 7.5)(Roebel, Justin) (Entered: 01/23/2012)
154 Minute Entry for proceedings held before Magistrate Judge Mark J. Dinsmore: Motion Hearing held on 1/23/2012. This matter came before the Court on multiple motions, which will be addressed in turn. Defendants' motion to stay 139 is DENIED. The Court will take the motions 132 and 144 under advisement pending the receipt of further information regarding Defendants' pending discovery. The Court will also take under advisement Defendants Marion County Prosecutor and Johnson County Prosecutor motion for extension of time to file response to motion for summary judgment 136 , which motion was also joined by the City of Franklin 144 . Status Conference set for 2/1/2012 10:00 AM in Telephonic before Magistrate Judge Mark J. Dinsmore. The purpose of this conference is to address the status of the pending discovery and of the parties' efforts to expedite its completion. Counsel shall attend the hearing by calling the designated phone number, to be provided by the court via email (see the Entry for additional details). Signed by Magistrate Judge Mark J. Dinsmore.(SWM) (Entered: 01/23/2012)
156 NOTICE of Appearance by Alexander Phillip Will on behalf of Defendant CITY OF INDIANAPOLIS. (Will, Alexander) (Entered: 01/26/2012)
157 SCHEDULING ORDER: This matter is currently set for a telephonic hearing on Wednesday, February 1, 2012 at 10:00 a.m. The court now changes the time to 8:00 a.m. All other requirements of the Court's Order dated 1/23/2012 (Dkt. 154) are still in order and effect. Signed by Magistrate Judge Mark J. Dinsmore on 1/30/2012.(SWM) (Entered: 01/30/2012)
159 Surreply re 137 Cross MOTION for Summary Judgment , filed by Plaintiffs LOUISA ADAIR, INGRID BUQUER, BERLIN URTIZ. (Rose, Gavin) (Entered: 01/30/2012)
160 Minute Entry for proceedings held before Magistrate Judge Mark J. Dinsmore: Telephone Discovery Hearing held on 2/1/2012. The parties discussed the status of discovery. This matter is scheduled for a telephonic hearing on Thursday, February 9, 2012 at 1:30 p.m. to address the current status of discovery. Counsel shall attend the status conference by calling the designated phone number, to be provided by the court via email. In addition, this matter is scheduled for a in−person hearing on Friday, February 17, 2012 at 1:00 p.m. in room 243, United States Courthouse, 46 East Ohio Street, Indianapolis, Indiana, before Magistrate Judge Mark J. Dinsmore. The purpose of this hearing will be addressed at the February 9, 2012 telephonic hearing. Signed by Magistrate Judge Mark J. Dinsmore.(SWM) (Entered: 02/06/2012)
162 NOTICE of Appearance by Donald G. Banta on behalf of Defendants JOHNSON COUNTY PROSECUTOR, MARION COUNTY PROSECUTOR. (Banta, Donald) (Entered: 02/09/2012)
163 Minute Entry for proceedings held before Magistrate Judge Mark J. Dinsmore: Parties appeared by telephone for a Hearing. The Court discussed its expectations for the February 17, 2012 hearing. Signed by Magistrate Judge Mark J. Dinsmore.(SWM) (Entered: 02/14/2012)

Case: 1:11-cv-708 As of: 03/30/2013 03:52 PM EDT 19 of 22

02/16/2012 02/17/2012 02/22/2012
02/29/2012 03/09/2012
03/09/2012 03/15/2012 03/19/2012 04/09/2012
04/20/2012 04/20/2012 04/20/2012 06/05/2012 06/06/2012

164 NOTICE of Appearance by Kenneth Lawson Joel on behalf of Defendants JOHNSON COUNTY PROSECUTOR, MARION COUNTY PROSECUTOR. (Joel, Kenneth) (Entered: 02/16/2012)
165 MOTION to Withdraw Attorney Appearance Scott L. Barnhart, filed by Defendants JOHNSON COUNTY PROSECUTOR, MARION COUNTY PROSECUTOR. (Attachments: # 1 Text of Proposed Order)(Barnhart, Scott) (Entered: 02/17/2012)
166 Minute Entry for proceedings held before Magistrate Judge Mark J. Dinsmore: Motion Hearing held on 2/17/2012. The parties addressed issues relating to their Rule 56(d) motion. The Court retains the motion under advisement. Signed by Magistrate Judge Mark J. Dinsmore.(SWM) (Additional attachment(s) added on 3/9/2012: # 1 Exhibit A−F (Added Per Order dated 3/9/2012)) (SWM). (Entered: 02/22/2012)
167 ORDER granting 165 Motion to Withdraw Attorney Appearance of Scott Leroy Barnhart. Signed by Judge Sarah Evans Barker on 2/29/2012. (JD) (Entered: 02/29/2012)
168 ORDER: The Court hereby GRANTS the City of Franklin's Motion to Join State Defendants' Motion for Extension of Time to File Responses 144 . The Court also hereby GRANTS Defendants' Motion for Extension of time so that Defendants will have thirty days from the date of this Order to respond to the Summary Judgment Motion 136 . For the reasons discussed below, the Court DENIES Defendants' Rule 56(d) Motion 132 . SEE ORDER FOR DETAILS. Signed by Magistrate Judge Mark J. Dinsmore on 3/9/2012. (SWM) Modified on 3/9/2012 (SWM). (Entered: 03/09/2012)
169 ORDER: The Court hereby directs the Clerk of the Court to attach to the Minute Entry for the Hearing held on February 12, 2012 [dkt. 166] Exhibits A−F. Signed by Magistrate Judge Mark J. Dinsmore on 3/9/2012.(SWM) (Entered: 03/09/2012)
170 Joint MOTION to Approve Agreed Entry, filed by Plaintiffs LOUISA ADAIR, INGRID BUQUER, BERLIN URTIZ, Defendant CITY OF FRANKLIN. (Attachments: # 1 Text of Proposed Order)(Falk, Kenneth) (Entered: 03/15/2012)
171 ORDER APPROVING Pltfs' and City of Franklin's 170 Agreed Entry. Signed by Magistrate Judge Mark J. Dinsmore on 3/19/2012. (SWM) (Entered: 03/19/2012)
172 RESPONSE in Opposition re 122 MOTION for Summary Judgment , filed by Defendants JOHNSON COUNTY PROSECUTOR, MARION COUNTY PROSECUTOR. (Attachments: # 1 Exhibit A − Excerpts of Deposition of Buquer, # 2 Exhibit B − Excerpts of Deposition of Urtiz, # 3 Exhibit C − Excerpts of Deposition of Adair, # 4 Exhibit D − Excerpts of Deposition of Aguilera, # 5 Exhibit E − Declaration of Brian Gensel, # 6 Exhibit F − Declaration of Ronald Leffler, # 7 Exhibit G − ICE FOIA Information, # 8 Exhibit H − Immigration Detainer − Notice of Action, # 9 Exhibit I − Declaration of John Schroeder)(Isenberg, Betsy) (Entered: 04/09/2012)
173 REPLY in Support of Motion re 122 MOTION for Summary Judgment , filed by Plaintiffs LOUISA ADAIR, INGRID BUQUER, BERLIN URTIZ. (Falk, Kenneth) (Entered: 04/20/2012)
174 NOTICE of Filing of Documents under Seal by All Plaintiffs (Falk, Kenneth) (Entered: 04/20/2012)
175 SEALED , re 174 NOTICE of Filing, filed by Plaintiffs LOUISA ADAIR, INGRID BUQUER, BERLIN URTIZ. (Falk, Kenneth) (Entered: 04/20/2012)
176 MOTION to Withdraw Attorney Appearance of Justin F. Roebel, filed by Defendant CITY OF INDIANAPOLIS. (Attachments: # 1 Text of Proposed Order)(Roebel, Justin) (Entered: 06/05/2012)
177 ORDER − granting 176 Motion to Withdraw Attorney Appearance. Attorney Justin F. Roebel withdrawn. Signed by Judge Sarah Evans Barker on 6/6/2012. (CKM) (Entered: 06/06/2012)

Case: 1:11-cv-708 As of: 03/30/2013 03:52 PM EDT 20 of 22

06/18/2012
06/22/2012
07/05/2012 07/06/2012 07/11/2012 07/13/2012
07/17/2012
07/17/2012 07/31/2012 07/31/2012 09/04/2012 09/04/2012 09/04/2012 09/04/2012

178 Joint MOTION to Vacate Trial and Pre−Trial Settings and Case Management Deadlines, filed by Plaintiffs LOUISA ADAIR, INGRID BUQUER, BERLIN URTIZ, Defendants CITY OF INDIANAPOLIS, JOHNSON COUNTY PROSECUTOR, MARION COUNTY PROSECUTOR. (Attachments: # 1 Text of Proposed Order)(Falk, Kenneth) (Entered: 06/18/2012)
179 ORDER − granting 178 Motion to Vacate : The November 14, 2012, trial and November 7, 2012, final−pretrial conference settings in this cause and all pending case management deadlines are VACATED, to be reset, if necessary, following this Court's ruling on the pending summary judgment requests. Signed by Judge Sarah Evans Barker on 6/22/2012.(CKM) (Entered: 06/22/2012)
180 NOTICE of Appearance by Jillian Leigh Genaw on behalf of Defendant CITY OF INDIANAPOLIS. (Genaw, Jillian) (Entered: 07/05/2012)
181 NOTICE of Change of Attorney Information. Consistent with Local Rule 5−3, Jillian Leigh Genaw hereby notifies the Clerk of the court of changed contact information. (Genaw, Jillian) (Entered: 07/06/2012)
182 MOTION for Leave to File Notice of Supplemental Authority, filed by Plaintiffs LOUISA ADAIR, INGRID BUQUER, BERLIN URTIZ. (Attachments: # 1 Exhibit Notice of Supplemental Authority, # 2 Text of Proposed Order)(Rose, Gavin) (Entered: 07/11/2012)
183 SCHEDULING ORDER: Telephone Conference set for 7/17/2012 10:10 AM in Telephonic before Magistrate Judge Mark J. Dinsmore. The purpose of theconference is to discuss Plaintiffs' Motion for Leave to File Supplement Authority [Dkt. 182]. Signed by Magistrate Judge Mark J. Dinsmore on 7/13/2012.(NLR) (Entered: 07/13/2012)
185 MINUTE ENTRY for proceedings held before Magistrate Judge Mark J. Dinsmore: Telephone Status Conference held on 7/16/2012. The parties discussed Plaintiffs' Motion for Leave to File Supplemental Authority. Plaintiffs' Motion for Leave to File Supplemental Authority is GRANTED and Plaintiff's Notice of Supplemental Authority, [Dkt. 182−1], is deemed filed as of the date of this Order. Defendants have fourteen days from the date of this Order to file any response to Plaintiff's Notice of Supplemental Authority addressing the Arizona decision. The telephonic status conference scheduled for July 17, 2012, [Dkt. 183], is hereby VACATED Signed by Magistrate Judge Mark J. Dinsmore.(SWM) (Entered: 07/17/2012)
186 NOTICE of Supplemental Authority filed by Plaintiffs LOUISA ADAIR, INGRID BUQUER and BERLIN URTIZ. (SWM) (Entered: 07/17/2012)
187 RESPONSE : DEFENDANT CITY OF INDIANAPOLIS RESPONSE TO PLAINTIFFS NOTICE OF SUPPLEMENTAL AUTHORITY, filed by Defendant CITY OF INDIANAPOLIS. (Spotts, Jillian) (Entered: 07/31/2012)
188 RESPONSE to Plaintiffs' Notice of Supplemental Authority, re 186 Notice (Other), filed by Defendants JOHNSON COUNTY PROSECUTOR, MARION COUNTY PROSECUTOR. (Isenberg, Betsy) (Entered: 07/31/2012)
189 MOTION for Attorney(s) Garrett R. Roe &Michael M. Hethmon to Appear pro hac vice, filed by Interested Parties MIKE DELPH, PHIL BOOTS, BRENT STEELE. (Attachments: # 1 Text of Proposed Order, # 2 Receipt)(CKM) (Entered: 09/06/2012)
190 MOTION for Leave to Intervene as Defendants and to File Responsive Pleading, filed by Interested Parties PHIL BOOTS, MIKE DELPH, BRENT STEELE. (Attachments: # 1 Text of Proposed Order)c/s(CKM) (Entered: 09/06/2012)
191 BRIEF/MEMORANDUM in Opposition to 122 Plaintiffs' Motion for Summary Judgment filed by Interested Parties PHIL BOOTS, MIKE DELPH, BRENT STEELE. c/s (CKM) Modified on 9/7/2012 (PGS). (Entered: 09/06/2012)
192 ANSWER to 1 Plaintiff's Class Action Complaint for Declaratory and Injunctive, filed by Interested Parties PHIL BOOTS, MIKE DELPH, BRENT STEELE. c/s (CKM) Modified on 9/7/2012 (PGS). (Entered: 09/06/2012)

Case: 1:11-cv-708 As of: 03/30/2013 03:52 PM EDT 21 of 22

09/10/2012
09/10/2012 09/11/2012
09/11/2012 09/12/2012 09/12/2012 09/12/2012 09/12/2012 09/14/2012 09/19/2012
09/20/2012

193 MOTION to Strike Brief of Intervenor Indiana State Senators Mike Delph, Phil Boots, and Brent Steele in Response to Plaintiffs' Motion for Summary Judgment (ECF No. 191) and Intervenors Rule 24 Responsive Pleading to Plaintiffs' Class Action Complaint for Declaratory and Injunctive Relief (ECF No. 192), or, alternatively, MOTION for Extension of Time to 30 days after granting of motion to intervene , filed by Plaintiffs LOUISA ADAIR, INGRID BUQUER, BERLIN URTIZ. (Attachments: # 1 Text of Proposed Order No. 1, # 2 Text of Proposed Order No. 2)(Falk, Kenneth) (Entered: 09/10/2012)
194 ORDER − granting 189 Motion to Appear pro hac vice. Attorney Garrett R. Roe,Micheal M. Hethmon for PHIL BOOTS,Garrett R. Roe,Micheal M. Hethmon for MIKE DELPH,Garrett R. Roe,Micheal M. Hethmon for BRENT STEELE added. Signed by Judge Sarah Evans Barker on 9/10/2012. (CKM) (Entered: 09/10/2012)
195 ENTRY ON PREMATURE FILINGS AND ORDER FOR LOCAL COUNSEL. Because the putative intervenors have not been granted leave to intervene, their brief opposing Plaintiffs' summary judgment motion 191 and their answer to Plaintiffs' Complaint 192 should not have been filed. The Court will not strike those filings, but STAYS any and all deadlines relative to those filings. Attorneys Roe and Hethmon are ordered to retain local counsel, who shall enter his or her appearance forthwith. Signed by Judge Sarah Evans Barker on 9/11/2012.(PGS) (Entered: 09/11/2012)
196 ORDER granting Plaintiffs' 193 Motion for Extension of Time to File responses to the Proposed Intervenors Response to Motion for Summary Judgment and the proposed Intervenors Responsive Pleading to the Complaint for 30 days from the granting of the Motion to Intervene, if it is granted. Signed by Judge Sarah Evans Barker on 9/11/2012. cm (MAC) Modified on 9/11/2012 (MAC). (Entered: 09/11/2012)
197 MOTION for Reconsideration re 194 Order on Motion to Appear pro hac vice , filed by Defendants JOHNSON COUNTY PROSECUTOR, MARION COUNTY PROSECUTOR. (Attachments: # 1 Text of Proposed Order Granting Motion to Reconsider)(Clay, Adam) (Entered: 09/12/2012)
198 MOTION to Strike 190 MOTION to Intervene, 191 Brief/Memorandum in Support of Motion, 192 Response , filed by Defendants JOHNSON COUNTY PROSECUTOR, MARION COUNTY PROSECUTOR. (Attachments: # 1 Text of Proposed Order Granting Motion to Strike)(Clay, Adam) (Entered: 09/12/2012)
199 BRIEF/MEMORANDUM in Support re 198 MOTION to Strike 190 MOTION to Intervene, 191 Brief/Memorandum in Support of Motion, 192 Response , filed by Defendants JOHNSON COUNTY PROSECUTOR, MARION COUNTY PROSECUTOR. (Clay, Adam) (Entered: 09/12/2012)
200 RESPONSE in Opposition re 190 MOTION to Intervene , filed by Plaintiffs LOUISA ADAIR, INGRID BUQUER, BERLIN URTIZ. (Falk, Kenneth) (Entered: 09/12/2012)
201 RESPONSE in Opposition re 190 MOTION to Intervene , filed by Defendants JOHNSON COUNTY PROSECUTOR, MARION COUNTY PROSECUTOR. (Clay, Adam) (Entered: 09/14/2012)
202 MOTION for Extension of Time to October 3, 2012 to file reply to 190 MOTION to Intervene in opposition to Plaintiffs' and Defendants' Responses in Opposition, MOTION for Extension of Time to October 3, 2012 to file response to 198 MOTION to Strike 190 MOTION to Intervene, 191 Brief/Memorandum in Support of Motion, 192 Response , 197 MOTION for Reconsideration re 194 Order on Motion to Appear pro hac vice , filed by Interested Parties PHIL BOOTS, MIKE DELPH, BRENT STEELE. (Attachments: # 1 Text of Proposed Order Order Granting Motion for Extension)(Roe, Garrett) (Entered: 09/19/2012)
203 ORDER granting Proposed Intervenor's 202 MOTION for an extension of time to respond to ECF Documents 197−199 and to reply to ECF Documents 200−201. The Court, being fully apprised and for good cause shown, finds that the motion for an extension of time should be GRANTED and Proposed Intervenors responses and replies shall be filed on or before October 3, 2012. Signed by Judge Sarah

Case: 1:11-cv-708 As of: 03/30/2013 03:52 PM EDT 22 of 22

10/03/2012 10/03/2012 10/03/2012 10/11/2012
10/12/2012 03/07/2013 03/12/2013 03/28/2013 03/28/2013
03/29/2013

Evans Barker on 9/20/2012. (MAC) (Entered: 09/21/2012)
204 NOTICE of Appearance by Eric C. Bohnet on behalf of Interested Parties PHIL BOOTS, MIKE DELPH, BRENT STEELE. (Bohnet, Eric) (Entered: 10/03/2012)
205 REPLY in Support of Motion re 190 MOTION to Intervene and Response to Motion to Strike 198 , filed by Interested Parties PHIL BOOTS, MIKE DELPH, BRENT STEELE. (Attachments: # 1 Exhibit Letter to Counsel)(Bohnet, Eric) Modified on 10/12/2012 (SWM). (Entered: 10/03/2012)
206 MOTION for Leave to File Combined Brief in Reply to Oppositions to Intervention and in Response to Motion to Strike, filed by Interested Parties PHIL BOOTS, MIKE DELPH, BRENT STEELE. (Attachments: # 1 Text of Proposed Order Granting Leave to File Combined Brief in Reply to Oppositions to Intervention and in Response to Motion to Strike)(Bohnet, Eric) (Entered: 10/03/2012)
207 ORDER granting Intervenors' 206 Motion for Leave to File combined reply brief. The Clerk is directed to amend the docket text in Dkt. 205 as follows: Reply in Support of Motion to Intervene [Dkt. 190] and Response to Motion to Strike [Dkt. 198] filed by Interested Parties PHIL BOOTS, MIKEDELPH, BRENT STEELE. Signed by Magistrate Judge Mark J. Dinsmore on 10/11/2012. (SWM) (Entered: 10/12/2012)
208 REPLY in Support of Motion re 198 MOTION to Strike 190 MOTION to Intervene, 191 Brief/Memorandum in Support of Motion, 192 Response , filed by Defendants JOHNSON COUNTY PROSECUTOR, MARION COUNTY PROSECUTOR. (Clay, Adam) (Entered: 10/12/2012)
209 MOTION to Withdraw Attorney Appearance of Adam Clay and Donald G. Banta, filed by Defendants JOHNSON COUNTY PROSECUTOR, MARION COUNTY PROSECUTOR. (Attachments: # 1 Text of Proposed Order)(Isenberg, Betsy) (Entered: 03/07/2013)
210 ORDER − granting 209 Motion to Withdraw Attorney Appearance. Attorney Donald G. Banta and Adam Clay withdrawn. Signed by Judge Sarah Evans Barker on 3/12/2013. (CKM) (Entered: 03/12/2013)
211 ORDER denying legislators' 190 Motion to Intervene. In light of this ruling, the State Defendants' 197 Motion for Reconsideration ; and 198 Motion to Strike are denied as moot. The case will proceed accordingly. (See Order). Signed by Judge Sarah Evans Barker on 3/28/2013. (MAC) (Entered: 03/29/2013)
212 ORDER on Pening Summary Judgment Motions. After careful review of the parties' submissions, documentary evidence, and applicable legal authorities, we GRANT Plaintiffs' Motion for Summary Judgment as to the State Defendants and hereby PERMANENTLY ENJOIN enforcement of Sections 18 and 20 of SEA 590. Plaintiffs' claim against the City of Indianapolis is DISMISSED WITHOUT PREJUDICE. A final judgment shall enter accordingly (See Order). Signed by Judge Sarah Evans Barker on 3/28/2013. (MAC) (Entered: 03/29/2013)
213 CLOSED JUDGMENT − In accordance with the Court's Order on Pending Summary Judgment Motions (Docket No. 212), it is now ADJUDGED that the Marion County Prosecutor and the Johnson County Prosecutor (referred to in the Court's Order as the "State Defendants") are PERMANENTLY ENJOINED from enforcing the following sections of Senate Enrolled Act 590: (1) Section 18, currently codified as Indiana Code § 34−28−8.2; and (2) Section 20, which amends Indiana Code § 35−33−1−1(1) by adding new sections (a)(11) through (a)(13). The Office of the Indiana Attorney General shall inform forthwith all of the affected Indiana state governmental entities of this injunction. Plaintiffs' claims against the City of Indianapolis, the City of Franklin, and the Johnson County Sheriff are DISMISSED WITHOUT PREJUDICE as unripe. Signed by Judge Sarah Evans Barker on 3/29/2013.(MAC) (Entered: 03/29/2013)

Case #: 1:11−cv−00708−SEB−MJD


On May 25, 2011, three foreign residents of Indiana filed a class action lawsuit in the U.S. District Court for the Southern District of Indiana, Indianapolis Division, against the cities of Indianapolis and Franklin and the counties of Marion and Johnson. The plaintiffs, represented by the ACLU of Indiana, the national ACLU's Immigrants' Rights Project, the National Immigration Law Center, and private counsel, filed their suit under 42 U.S.C. § 1983, the Immigration and Nationality Act (INA), 8 U.S.C. §§ 1101 et seq., and the Declaratory Judgment Act, 28 U.S.C. § 2201, claiming that Indiana's Senate Enrolled Act 590 (SEA 590) violated the federal Constitution. Specifically, the plaintiffs claimed that Section 19, which allowed local law enforcement officers to make warrantless arrests of people who were subject to a removal order issued by an immigration court or a detainer or notice of action issued by the Department of Homeland Security, or who had been indicted or convicted of an aggravated felony, was preempted by federal law and constituted an unreasonable seizure under the Fourth Amendment and a violation of due process under the Fourteenth. They also claimed that Section 18, which made the use of consular identification cards for identification within the state a civil infraction punishable by fine, was preempted by federal law and in violation of the Fourteenth Amendment's guarantee of due process. The plaintiffs sought a declaration that SEA 590 violated the Constitution and a peremptory injunction barring its enforcement before it came into effect on July 1, 2011.

On June 13, 2011, Mexico moved for leave to file an amicus on behalf of plaintiffs, and Brazil, Guatemala, El Salvador and Columbia moved to join it. The District Court (Judge Sarah Evans Barker) granted these motions on June 21.

In the meantime, the Court (Judge Barker), on joint motion from plaintiffs and county defendants, had issued an order to protect the privacy and confidentiality of any of the individual plaintiffs' immigration status that might be implicated in discovery.

Following a hearing on June 20, 2011, on June 24 the Court (Judge Barker) granted plaintiffs' motion for a preliminary injunction, barring enforcement of Sections 18 and 19 of SEA 590 pending further order of the Court. Buquer v. City of Indianapolis, 797 F. Supp. 2d 905 (S.D. Ind. 2011).

On July 14, 2011, the Court (Judge Barker) granted a stipulation by plaintiffs and county defendants that two classes should be certified: a class of people in Marion and Johnson Counties who were or would be subject to warrantless arrest pursuant to Section 19 of SEA 590 (Class A), and a class of people who possessed, or would possess, a valid consular identification card and were using it, or would use it, for non-fraudulent identification purposes (Class B). The court certified both classes and appointed counsel for them.

On October 11, 2011, the county defendants filed a motion to join the United States as a necessary party. The Court (Judge Barker) denied this motion on January 9, 2012. Buquer v. City of Indianapolis, No. 1:11-cv-00708, 2012 WL 76141, 2012 U.S. Dist. LEXIS 3047 (S.D. Ind. Jan. 9, 2012). The Court (Magistrate Judge Mark J. Dinsmore) also denied a motion by defendants to stay the case pending the Supreme Court's decision in Arizona v. United States, No. 11-182 (<a href="http://www.clearinghouse.net/detail.php?id=12112">IM-AZ-0015</a>), remarking that it was unlikely to be entirely dispositive of some of the unique issues presented by this case.

Meanwhile, plaintiffs had filed a motion for summary judgment on November 20, 2011, and the City of Indianapolis had filed a cross-motion for summary judgment on December 21.  

On March 28, 2013, the District Court (Judge Barker) granted plaintiffs' motion for summary judgment.  According to the order, defendants are permanently enjoined from enforcing Section 18 and Section 20 of SEA 590, as they are both violated the Supremacy Clause and the Due Process Clause.  Because plaintiffs' suit was dependent upon enforcement of these sections, the matter was dismissed without prejudice.