A judge for the US District Court Southern District of Indiana [official website] on Friday issued a preliminary injunction [text, PDF] against two provisions of a controversial Indiana immigration law [SEA 590 text]. The American Civil Liberties Union (ACLU) [advocacy website] filed a class action lawsuit [JURIST report] in May challenging the two provisions, one which authorized state and local police officers to make warrantless arrests of persons who have an immigration court removal order against them or who they have probable cause to believe have been indicted or convicted of aggravated felonies. The second challenged provision created a new infraction for anybody other than police officers to knowingly or intentionally accept consular identification as a valid form of identification. Judge Sarah Baker rejected the police officers authority to arrest based on the concession by the defendants that nothing under Indiana law makes the receipt of a removal order, a notice of action or a person's having been indicted for or convicted of an aggravated felony a crime. Baker also expressed concern that the statute contains no reference to Fourth Amendment [Cornell LII backgrounder] protections nor does it include a requirement that power to arrest be granted only if the officer has a separate lawful reason for the arrest. Baker also faulted the statute for failing to provide due process:
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. There is in fact a complete void within the new statute regarding all other due process protections.The order rejected the state's authority to make warrantless arrests based on preemption, finding that the states have no authority to assist the federal government in enforcing immigration laws on their own accord without any agreement with the federal government.
Similar immigration laws have been enacted across the country. In April, the Georgia General Assembly approved a bill requiring police to check the immigration status [JURIST report] of anyone they have probable cause to believe has committed a criminal offense and requiring businesses to use E-Verify to check the immigration status of potential employees. Similar legislation has also been approved in Alabama, Virginia, South Carolina, Utah and Oklahoma [JURIST reports]. Arizona's law is also currently enjoined, and Arizona Governor Jan Brewer (R) has pledged to appeal to the US Supreme Court [JURIST reports]. In May, the US Supreme Court [official website] upheld an Arizona law [JURIST report] requiring employers to utilize the E-Verify system, finding that it was not preempted by federal law and thus not a violation of the Supremacy Clause [Cornell LII backgrounder]. This decision could have an impact on lawsuits challenging legislation in other states.