BUQUER et al v. CITY OF INDIANAPOLIS et al

Filing 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).

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,

)
)
)
)
)
) NO. 1:11-cv-00708-SEB-MJD
)
)
)
)

Plaintiffs,
vs.
CITY OF INDIANAPOLIS, et al
Defendants.

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

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 nonmovant shows by affidavit or declaration 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

(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

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].
4

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.

5

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 administer and an attendant
ability to make informed determinations about how state requirements may pose
an “obstacle to the accomplishment 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

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

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

8

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.
9

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

10

¶ 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.

11

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.

12

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:
Mark J. Dinsmore
United States Magistrate Judge
Southern District of Indiana

Angela Denise Adams
LEWIS & KAPPES
[e-mail]
Donald G. Banta
OFFICE OF THE ATTORNEY GENERAL
[e-mail]

William W. Barrett
WILLIAMS HEWITT BARRETT & WILKOWSKI LLP
[e-mail]
Jose J. Behar
HUGHES SOCOL PIERS RESNICK & DYM, LTD.
[e-mail]
Shiu-Ming Cheer
NATIONAL IMMIGRATION LAW CENTER
[e-mail]
Adam Clay
INDIANA ATTORNEY GENERAL
[e-mail]
Katherine Desormeau
AMERICAN CIVIL LIBERTIES UNION FOUNDATION
[e-mail]
Patricia Orloff Erdmann
OFFICE OF THE ATTORNEY GENERAL
[e-mail]
Kenneth J. Falk
13

ACLU OF INDIANA
[e-mail]
Jefferson S. Garn
INDIANA ATTORNEY GENERAL
[e-mail]
Lee Gelernt
AMERICAN CIVIL LIBERTIES UNION FOUNDATION
[e-mail]
Lynnette Gray
JOHNSON GRAY& MACABEE
[e-mail]
Betsy M. Isenberg
INDIANA OFFICE OF THE ATTORNEY GENERAL
[e-mail]
Omar C. Jadwat
AMERICAN CIVIL LIBERTIES UNION FOUNDATION
[e-mail]
Linton Joaquin
National Immigration Law Center
[e-mail]
Kenneth Lawson Joel
INDIANA ATTORNEY GENERAL
[e-mail]
Jill Z. Julian
UNITED STATES ATTORNEY'S OFFICE
[e-mail]
Joshua Karsh
HUGHES SOCOL PIERS RESNICK & DYM, LTD.
[e-mail]
Matthew J. Piers
HUGHES SOCOL PIERS RESNICK & DYM, LTD
[e-mail]
Clifford Lee Reeves II
U.S. DEPARTMENT OF JUSTICE
[e-mail]
14

Justin F. Roebel
CITY OF INDIANAPOLIS, OFFICE OF CORPORATION COUNSEL
[e-mail]
Gavin Minor Rose
ACLU OF INDIANA
[e-mail]
Andre I. Segura
AMERICAN CIVIL LIBERTIES UNION FOUNDATION
[e-mail]
Karen Tumlin
NATIONAL IMMIGRATION LAW CENTER
[e-mail]
Cecillia D. Wang
AMERICAN CIVIL LIBERTIES UNION FOUNDATION
[e-mail]
Alexander Phillip Will
OFFICE OF CORPORATION COUNSEL
[e-mail]

15