BUQUER et al v. CITY OF INDIANAPOLIS et al

Filing 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 PER MANENTLY 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)

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.

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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.
3

Federal Immigration Regulation

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
10

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
12

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:

13

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
14

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
15

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
17

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.
18

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
19

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.”
20

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.
21

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
22

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

23

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

24

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,
25

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,
26

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).
27

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
28

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
29

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.
30

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

31

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.

03/28/2013

Date: ___________________________
_______________________________
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
[e-mail]
Kenneth J. Falk
ACLU OF INDIANA
[e-mail]
Andre I. Segura
AMERICAN CIVIL LIBERTIES UNION FOUNDATION
[e-mail]
Cecillia D. Wang
AMERICAN CIVIL LIBERTIES UNION FOUNDATION
[e-mail]
Katherine Desormeau
AMERICAN CIVIL LIBERTIES UNION FOUNDATION
[e-mail]
Lee Gelernt
AMERICAN CIVIL LIBERTIES UNION FOUNDATION
[e-mail]
Omar C. Jadwat
AMERICAN CIVIL LIBERTIES UNION FOUNDATION
[e-mail]
Eric C. Bohnet
ATTORNEY AT LAW
[e-mail]
Jillian Leigh Spotts
CITY OF INDIANAPOLIS, CORPORATION COUNSEL
[e-mail]
Matthew J. Piers
HUGHES SOCOL PIERS RESNICK & DYM, LTD
[e-mail]

41

Jose J. Behar
HUGHES SOCOL PIERS RESNICK & DYM, LTD.
[e-mail]
Joshua Karsh
HUGHES SOCOL PIERS RESNICK & DYM, LTD.
[e-mail]
Garrett R. Roe
IMMIGRATION REFORM LAW INSTITUTE
[e-mail]
Adam Clay
INDIANA ATTORNEY GENERAL
[e-mail]
Jefferson S. Garn
INDIANA ATTORNEY GENERAL
[e-mail]
Kenneth Lawson Joel
INDIANA ATTORNEY GENERAL
[e-mail]
Betsy M. Isenberg
INDIANA OFFICE OF THE ATTORNEY GENERAL
[e-mail]
Micheal M. Hethmon
Immigration Reform Law Institute
25 Massachusetts Avenue NW, #335
Washington, DC 20001
Lynnette Gray
JOHNSON GRAY& MACABEE
[e-mail]
Angela Denise Adams
LEWIS & KAPPES
[e-mail]

42

Karen Tumlin
NATIONAL IMMIGRATION LAW CENTER
[e-mail]
Karen Tumlin
NATIONAL IMMIGRATION LAW CENTER
[e-mail]
Shiu-Ming Cheer
NATIONAL IMMIGRATION LAW CENTER
[e-mail]
Linton Joaquin
National Immigration Law Center
[e-mail]
Linton Joaquin
National Immigration Law Center
[e-mail]
Alexander Phillip Will
OFFICE OF CORPORATION COUNSEL
[e-mail]
Patricia Orloff Erdmann
OFFICE OF THE ATTORNEY GENERAL
[e-mail]
Clifford Lee Reeves, II
U.S. DEPARTMENT OF JUSTICE
[e-mail]
Jill Z. Julian
UNITED STATES ATTORNEY’S OFFICE
[e-mail]
William W. Barrett
WILLIAMS HEWITT BARRETT & WILKOWSKI LLP
[e-mail]

43