Although the July 1 deadline that Indiana Attorney General Todd Rokita set has passed, only one of four municipalities threatened with legal action if they did not rescind what he called their “illegal sanctuary city” policies appears to have made changes to comply.

The West Lafayette Police Department, the cities of Gary and East Chicago, and the Monroe County Sheriff’s Office were each sent a letter from the attorney general in May, demanding they repeal policies or ordinances that Rokita said would violate a new state law that took effect at the start of the month. Senate Enrolled Act 181, passed during the 2024 legislative session, amended state law to require local governments and postsecondary educational institutions to cooperate with federal immigration officials.

Rokita told the four municipalities if they did not rescind their law enforcement policies or welcoming ordinances by July 1, he would be “statutorily required” to file lawsuits to compel them to comply.

West Lafayette appears to be the only municipality to have taken steps to avoid a lawsuit. At its June 18 meeting, the West Lafayette Board of Works approved an alteration to the immigration policy in the city’s police department manual. Mayor Erin Easter said in an email that the policy was “augmented” rather than rescinded.

In Gary, officials seem to be standing behind their city’s welcoming ordinance, which has withstood a legal challenge shortly after it was passed in 2017.

“The city of Gary is unwavering in its commitment to providing helpful and efficient services to all residents, without any form of discrimination,” Carla Morgan, corporation counsel, said in an email. “We will continue to ensure equal access and opportunity for everyone, in according with federal law.

“In regards to the welcoming ordinance,” she said, “minor adjustments have been made to the language to align with the opinions of the Indiana Appellate Court and Supreme Court rulings.”

The city of East Chicago, and the Monroe County Sheriff’s Office did not respond to multiple inquiries requesting updates on the status of their polices, and their websites do not indicate any reversals or revisions to their policies. Also, the attorney general’s office did not respond to questions about whether it would be suing any of the municipalities.

However, Bloomington immigration attorney Christie Popp said if the municipalities change their policies to avoid a lawsuit from the attorney general, they could face legal actions from outside groups. The risk originates with the immigration detainers issued by U.S. Immigration and Customs Enforcement, she said, which ask localities to hold an individual for another 48 hours even when that person has been ordered released by a trial court.

Currently the four municipalities’ policies include provisions that give local officials the option of not detaining an individual for ICE. The policies are not usurping federal law, Popp said, because the detainers are voluntary, meaning state and local governments do not have to retain people for ICE in their jails. Holding someone for no other reason than the ICE detainer could violate that individual’s right against unreasonable searches and seizures, exposing the community to a lawsuit, she said.

“They’re saying, ‘We just would like you to keep someone in jail who’s otherwise free to go. Keep them in jail with no criminal charges, no warrant, nothing, just until we get around to picking them up,’” Popp said. “Courts have looked at this, including the (9th U.S. Circuit Court of Appeals), and have said that is a violation of the Fourth Amendment.”

‘Immigration violations are not crimes’

Policy 413.7.1 of the West Lafayette Police Department specifically set policy for responding to ICE immigration detainers. Previously, the policy prohibited local law enforcement from holding anyone solely on the basis of a federal immigration detainer. To be detained, the police required the individual be charged with a federal crime or the detainer document to be included with a warrant, affidavit of probable cause or removal order.

The new policy mandates that when officers receive an immigration detainer notice of action, they will transport the individual to the Tippecanoe County Jail for detention. After Police Chief Troy Harris presented the revised language on detainers, the board of works approved the change on a voice vote with no discussion.

In Monroe County, the sheriff’s office has a similar policy to give local law enforcement some discretion. The local jail can hold an individual for ICE but does not have to abide by the detainer request.

Popp, of Popp and Bullman, said the detainers from ICE look like a federal arrest warrant that would come from a federal marshal. Local law enforcement officials can become confused, she said, and think they have to hold the individual even though the detainer is actually only asking that the person be retained in custody. Moreover, in her experience, Popp said she has seen people being kept in jail for three to four weeks on an ICE detainer.

“Todd Rokita has such a little grasp of immigration law,” Popp said of the attorney general’s demand the policies be rescinded. “Congress cannot mandate that a local official do anything for Congress at its own cost. The language of (federal law is) all structured in a voluntary way that ICE is … requesting a detainer. It is not mandatory under federal policy.”

A majority of the people picked up on ICE detainers either have no criminal record or only have a conviction for a very low-level offense, Popp said. Frantic family members of detained individuals have called her, she said, worried about their loved ones. After she calls the local jail and explains the detainer is only for 48 hours, Popp said officials usually release the individual.

“Immigration violations are not crimes,” Popp said. “These are civil offenses. So the individuals who are being reported to ICE in whatever capacity, they’re not criminals. They haven’t committed a crime.”

The potential cost of an ICE detainer

In its fiscal year 2023 report, ICE said it submits immigration detainers against “certain noncitizens” who have been arrested by local law enforcement for criminal activity. The agency said the detainers not only increase the safety of law enforcement officials, ICE personnel, removable noncitizens and the public by “allowing arrests to take place in secure and controlled custodial settings” but also enable ICE to conserve its resources by taking custody of individuals just released from jail rather than having to send its officers into the community to locate and arrest the individuals.

ICE issued 125,358 detainers in fiscal year 2023 for noncitizens with criminal histories, according to the 2023 fiscal report. This was a marked increase from the less than 100,000 detainers issued in fiscal years 2021 and 2022 but still fewer than the 177,147 and 165,487 issued in fiscal years 2018 and 2019 respectively.

The American Civil Liberties Union echoed Popp, saying the ICE detainers are not mandatory directives. Also, the detention of anyone held on an immigration detainer without a judicial warrant or probable cause violates the Fourth Amendment, the ACLU said.

The consequences for local communities across the country who have held people on the basis of an ICE detainer have been expensive. A 2020 list compiled by the ACLU that documented the money paid by municipalities to settle ICE detainer cases showed amounts ranging from $70,000 plus $15,000 for attorney fees paid to close a case in Washington to $255,000 paid to settle a class-action lawsuit against the city of Los Angeles County.

Response to increasing fears

Gary and East Chicago have welcoming ordinances that address many issues regarding immigrants.

The East Chicago ordinance includes a provision prohibiting an individual who is eligible for release from being detained by an immigration detainer or administrative warrant. Other provisions prohibit the investigation of a person’s immigration status unless ordered by a court and bar the withholding of any municipal benefits, services or opportunities related to immigrant status unless required by state or federal law or court order.

Passed in 2017, Gary’s welcoming ordinance was immediately challenged in court as violating the 2011 state law against sanctuary cities. The case traveled all the way to the Indiana Supreme Court where, in 2022, the justices ruled the plaintiffs did not have standing to bring the lawsuit.

Sen. Rodney Pol, D-Gary, is the city attorney for Gary and explained the motivation for the ordinance during the floor debate over SEA 181. He told the legislature that the welcoming ordinance was passed in response to the 2016 election stoking fears that the Gary Police Department was going to become an arm of ICE.

The ordinance was not meant to be a “poke in the eye of the Indiana legislature,” Pol said. Instead, the goal was to let Gary residents know they could call the police or fire department when they needed help, regardless of their immigration status.

After the attorney general sent the letter to Gary, Rep. Ragen Hatcher, D-Gary, defended the ordinance. She said she had voted for the ordinance when she was on the Gary Common Council and she sees the attorney general’s action as the state’s continued interference with the operations of minority majority communities.

“As an attorney, I find the threat of legal action unnecessary,” Hatcher said in her statement. “This ordinance was already litigated and spent five years in the court of law. One of Indiana’s highest courts restored portions of the ordinance and believed it was compliant with state law. This isn’t a legal move; it is part of a national culture war surrounding immigration that has no place in the Hoosier state.”