COA reinstates much of Gary’s welcoming ordinance

The city of Gary can roll out the welcome mat once again after the Court of Appeals of Indiana found that much of its welcoming ordinance did not violate state law.

In 2017, Gary passed its “Welcoming City” ordinance to “ensure that the immigration status of those who live, work, or pass through Gary will not affect how they are treated by Gary agencies and agents, including its police department and social services providers.”

Jeff Nicholson, Douglas Grimes, Greg Serbon and Cheree Calabro subsequently filed a complaint, alleging that four provisions of the ordinance violated Indiana Code §§ 5-2-18.2-3 and -4. The provisions were:

• Section 26-52, which prohibits Gary’s agencies or agents from requesting information, investigating or helping to investigation the citizenship or assisting in the investigation of the citizenship or immigration status of any person unless required by a court order.
• Section 26-55, which prohibits agents and agencies from stopping, arresting, detaining or continuing to detain a person after that person becomes eligible for release from custody or is free to leave an encounter with an agent or agency.
• Section 26.58, which requires the Gary Police Department to recognize that an arrest increases an individual’s risk of deportation even in cases where the person is found to be not guilty.
• Section 26.59, which holds that municipal agencies are not prohibited from sending to or receiving from any local, state or federal agency information regarding an individual’s citizenship or immigration status.

Following a hearing, Lake Superior Judge Stephen Scheele issued an order granting Nicholson’s summary judgment motion and denying Gary’s summary judgment motion. It prohibited Gary from enforcing the provisions in the four sections that violate I.C. 5-2-18.2- 3 and -4.

The city of Gary appealed and in City of Gary v. Jeff Nicholson, Douglas Grimes, Greg Serbon, and Cheree Calabro, and State of Indiana, 20A-MI-2317, the Court of Appeals of Indiana held that the part of Section 26-52 that prohibits any agent or agency from assisting in the investigation of citizenship or immigration status of a person violates I.C. 5-2-18.2-3.

The panel split on Section 26-55 subsections (a) through (c). These subsections prohibit a city agent or agency from holding a person after that individual becomes eligible for release based on an immigration detainer, an administrative warrant or any other basis that is solely based on the belief that the person is not present legally in the United States.

Gary argued, in part, that such detentions based solely on civil immigration violations violate the Fourth Amendment.

The majority of the appellate panel agreed.

“As the Supreme Court stated in Arizona, ‘[a]s a general rule, it is not a crime for a removable alien to remain present in the United States,’” Judge Edward Najam wrote for the majority, citing Arizona v. United States, 576 U.S. 387, 381 (2012). “… Accordingly, on the narrow question presented here, we hold that the detention of a person ‘not otherwise detained by a criminal justice agency’ based on an immigration detainer or an administrative warrant would violate the Fourth Amendment and, thus, subsections (a) through (c) of Section 26-55 do not violate Section 4.”

Judge Elaine Brown dissented from the majority’s finding that subsections (a) through (c) of Section 26-55 remain valid and enforceable.

Citing Tenorio-Serrano v. Driscoll, 324 F. Supp. 3d 1053 (D. Ariz. 2018), where the defendant sued local law enforcement challenging their policy of holding individuals in state custody for up to 48 additional hours as requested by Immigration and Customs Enforcement, she argued neither civil immigration detainers nor administrative warrants violate the Fourth Amendment.

In a footnote, the majority rebutted the dissent. It cited Abel v. United States, 362 U.S. 217 (1960), and pointed out the Supreme Court declined to address the constitutionality of detainers and administrative warrants under the Fourth Amendment. Also, the majority noted that Tenorio-Serrano relies on El Cenizo, 890 F.3d 1264 (5^th Cir. 2018), and the Indiana appellate court follows opinions from the 1^st, 3^rd and 9^th Circuit Courts as well as the U.S. District Court for the Southern District of Indiana.