AG’s Office Files Notice Of Appeal In Immigration Case

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Olivia Covington for www.theindianalawyer.com

The Indiana Attorney General’s Office has filed a notice of appeal with the 7th Circuit Court of Appeals after a district court judge struck down its motion to intervene in a federal immigration case that places additional requirements on local law enforcement detaining individuals for the federal government.

Indiana Attorney General Curtis Hill moved last month to intervene in the case of Antonio Lopez-Aguilar v. Marion County Sheriff’s Department, et al., 1:16-cv-02457, after Southern District Court Judge Sarah Evans Barker entered a consent decree between Antonio Lopez-Aguilar, an illegal immigrant, and Marion County law enforcement. The consent decree prohibits the Marion County Sheriff’s Office from detaining illegal immigrants on behalf of U.S. Immigration and Customs Enforcement unless ICE can produce a signed warrant or other probable cause.

The state moved to intervene for the limited purpose of appealing the consent decree, arguing that under Indiana Code section 5-2-18.2, state and local law enforcement officials have a “duty to cooperate” with federal immigration efforts.

“The consent decree was approved in large part due to the Court’s analysis determining that it did not violate any Indiana statutes,” Hill’s office wrote in its December motion. “Because the State contends that the consent decree does in fact violate the Indiana statutes at issue, the harm to the State’s proper enforcement of its statues is both caused by the consent decree and remedied by its vacatur on appeal.”

Barker, however, denied the motion to intervene in a Jan. 5 opinion, finding the state lacked standing to intervene. She specifically held I.C.5-2-18.2-4 does not require local law enforcement’s cooperation with federal immigration detainers or removal orders under the text of that statute, or under the Immigration and Nationality Act or Fourth Amendment.

The judge also likened the instant case to 1000 Friends of Wisconsin, Inc. v. U.S. Department of Transportation, 860 F.3d 480 (7th Cir. 2017) and Kendall-Jackson Winery, Ltd. v. Branson, 212 F.3d 995 (7th. Cir. 2000). Those cases stand for the proposition that “a defendant does not have standing to appeal an order binding a different, nonappealing defendant which injures the appealing defendant only indirectly, and which, if set aside, will benefit the appealing defendant only collaterally or contingently,” she said. Here, the appealing defendant would be the state, while the nonappealing defendant would be the Marion County Sheriff’s Office.

“The state does not, and cannot, point to any authority for this proposition that is has a legally protected interest, sufficient to confer standing, in defending its statutes from any judicial interpretation its lawyers deem undesirable or do not otherwise share,” Barker wrote in her Jan. 5 order.

Barker also determined the state’s motion to intervene, filed Dec. 4, was untimely considering the consent decree was submitted by both parties for approval on July 10. Finally, she determined the state failed to prove its entitlement to intervention of right, or to permissive intervention.

Hill’s office filed its notice of appeal on Monday morning. The Attorney General also reaffirmed his position that local law enforcement should be required to cooperate with federal immigration efforts.

“Establishing a policy that requires law enforcement personnel to not cooperate with each other not only violates Indiana law but jeopardizes public safety,” Hill said in a statement.

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