S.D.Ind.: IN statute that allows arrest of a suspected alien solely because of a prior crime that might lead to removal violates Fourth Amendment

Indiana’s new immigration statute that gives discretion to law enforcement to arrest a person because of a prior conviction without any removal proceeding even pending against them violates the Fourth Amendment and due process. Buquer v. City of Indianapolis, 2013 U.S. Dist. LEXIS 45084 (S.D. Ind. March 28, 2013):

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 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, 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.