State attorneys say the ACLU is exaggerating the powers Indiana's new immigration law gives to local police in an effort to persuade a federal judge to throw out parts of the law.
In a brief filed this week in U.S. District Court in Indianapolis, the state attorney general's office argued the ACLU and other plaintiffs have mischaracterized the law and that its provisions "do not mandate that local law enforcement arrest persons in a willy-nilly fashion based on the mere suspicion that the person may not legally be in the United States."
The General Assembly last year passed the law giving local police authority to enforce immigration laws in certain circumstances. But three immigrants, represented by the American Civil Liberties Union of Indiana and the National Immigration Law Center, filed a federal lawsuit contending the law would give police unconstitutional arrest powers against immigrants who haven't committed crimes.
Judge Sarah Evans Barker granted an injunction last July blocking parts of the law from taking effect, and the plaintiffs are asking her to make the injunction permanent.
The ACLU has said the law's wording would allow the arrest of anyone who has had a notice of action filed by federal immigration authorities, a formal paperwork step that affects virtually anyone applying to be in the U.S. But the state claims that police could only arrest immigrants when they have documents showing the federal government has ordered them to be removed or detained, and the law allows officers to use discretion.
"The only way in which a law enforcement officer or the (Department of Correction) would receive removal orders or detainers is through the federal government, thus implying cooperation," the state argues. Critics claimed the state was overreaching its authority by interfering in an area of federal power.
But ACLU legal director Ken Falk said the law doesn't really require cooperation with federal authorities because police could access immigration documents in other ways — through various databases, for example, or simply by seeing a detainer order sitting on the front seat of an immigrant's car.
"The argument we've made all along is this law is on the books, some of this information is easily accessible, all of it is accessible somehow, and it puts people at risk of being arrested for things that are not crimes," Falk said Wednesday.
The other portion of the law that was blocked was a measure making it illegal for immigrants to use ID cards issued by foreign consulates as proof of identification. The ACLU has said the state law would interfere with foreign treaties allowing the cards.
But the state says the consular IDs could still be used at foreign consulates, and immigrants could use state driver's licenses or other forms of identification outside.
"Individual states on a daily basis require merchants to request proof of identification to purchase such items as alcohol, tobacco, firearms, and certain forms of medication for similar rational interests," the state says in its 35-page brief. "The Plaintiffs have failed to show any undue burden to legally identify themselves, and the Act does not preclude the use of a passport, issued by the government of a foreign state for identification purposes."
Falk said the state would be within its rights to ban people from using consular IDs to obtain a driver's license, but it had no business barring people from using them if they were asked to produce identification in other circumstances.
The state, however, argued in its brief that the other side's arguments are based on "strained hypotheticals to justify their claim that there is a lack of rational basis for the legislation."