A federal judge grilled an attorney for the state of Indiana on Monday about the state's new immigration law, questioning how police would enforce the law and saying one of its provisions conflicts with federal law.
U.S. District Judge Sarah Evans Barker heard 90 minutes of oral arguments on civil rights groups' request for a preliminary injunction blocking contested portions of the law. Barker said she would rule before the law passed by legislators in April takes effect July 1.
The American Civil Liberties Union of Indiana and the National Immigration Law Center sued the state over the law in May, contending it gives police sweeping arrest powers against immigrants who have not committed any crime.
The state attorney general's office argues such fears are exaggerated and based on misunderstanding of the law.
The civil rights groups aren't fighting all provisions of Indiana's wide-ranging law, but are contesting provisions allowing police to arrest immigrants under certain conditions, including if they face a removal order issued by an immigration court.
Their lawsuit argues some of those conditions are too broad, can apply widely to thousands of immigrants and violate the constitutional requirement of probable cause.
Ken Falk, an attorney for the ACLU of Indiana, told Barker the law also would allow police to arrest anyone who has been indicted or convicted of an aggravated felony — regardless of whether that person was cleared, released on bail or already served their sentence.
"It's not a crime to be indicted on a felony," he said. "No matter how you look at it, it allows people to be arrested for things that are not crimes."
The civil rights groups also contend the law's wording would allow the arrest of anyone who has had a notice of action filed by immigration authorities, a formal paperwork step that affects virtually anyone applying to be in the U.S. for any reason.
Barker peppered deputy attorney general Betsy Isenberg with questions about how police officers would enforce the law given those concerns and what she said is the reality that it can take up to two weeks to get answers from federal immigration officials on specific cases — time a person arrested under the law would spend in jail, waiting for immigration officials to bring law enforcement up to date on their case.
"Two weeks is a small price to pay, is that what you're saying?" Barker asked Isenberg, adding that "it's not exactly an easy thing to get a quick response" from immigration officials.
The judge said she's concerned about how the state's police officers — from sheriff's deputies to small town police — would enforce the new law. Barker also raised the possibility that an officer upset that a judge had released on bail a person facing a felony indictment could use the law to thumb his nose at the judiciary and re-arrest that person.
"The police officer could say, 'Watch this judge!'" she said.
Indiana's new law also includes a provision making it illegal for immigrants to use ID cards issued by foreign consulates as proof of identification. Falk told Barker he estimates the Mexican consulate in Indianapolis has issued about 70,000 such ID cards and they are "highly secure documents."
He said Indiana's law targeting those ID cards would interfere with foreign treaties allowing those documents.
Under questioning from Barker, Isenberg conceded the ID card provision conflicts with the Treasury Department's use of those ID cards for bank transactions. Barker then asked Isenberg why federal law wouldn't supersede Indiana's new law.
"We have a conflict. We have a direct conflict," she told Isenberg.
State immigration enforcement laws have not recently fared well in federal courts.
A federal judge blocked the most controversial parts of Arizona's law last year before it took effect. A federal appeals court upheld the decision, and Arizona Gov. Jan Brewer has said she plans to appeal to the U.S. Supreme Court.
Last month, a Utah law giving police the authority to arrest anyone who cannot prove their citizenship was put on hold by a federal judge 14 hours after it went into effect. The next hearing there is scheduled in July.
And in Georgia, a federal judge on Monday heard arguments on whether that state's law can take effect next month. Like in Indiana, that judge listened to the arguments and said he'd likely rule before the law is set to take effect July 1.