Federal Appeals Court Rules for Indiana AG against “Sue-and-Settle” Sanctuary Policy

By David Jaroslav | May 15, 2019

Indiana Attorney General Curtis Hill has won a resounding victory for his office’s ability to enforce the Hoosier State’s law against dangerous sanctuary policies.  On May 9, the United States Court of Appeals for the Seventh Circuit reversed a lower court’s decision and struck down a “sue-and-settle” consent decree that had allowed Marion County—the state’s most populous county, of which Indianapolis is the county seat—to ignore state law and become a sanctuary county for criminal aliens.

In this case, illegal alien Antonio Lopez-Aguilar was arrested in Marion County in September 2014 for driving without a license and ultimately handed over by the county to Immigration and Customs Enforcement (ICE) for possible deportation.  Once represented by the American Civil Liberties Union (ACLU), he sued the Marion County Sheriff’s Office (MCSO), asking for damages and also for an injunction to order them not to cooperate with ICE , despite Indiana’s 2011 anti-sanctuary law, Senate Bill (SB) 590, which says local governments and their agencies can’t adopt any policy that “prohibits or in any way restricts … cooperating with federal officials.”

The ACLU and MCSO submitted a proposed settlement agreement to U.S. District Court Judge Sarah Evans Barker, who approved it as a “stipulated judgment” (commonly known as a consent decree) on November 7, 2017.  Most significantly, the decree prohibited MCSO from honoring immigration detainers. 

Less than a month later, on December 4, 2017, the Indiana AG’s office moved to intervene, asking to be permitted to enter the case as another party in order to appeal the consent decree.  Judge Barker denied the motion, saying the state had not established a real injury giving it standing to sue or appeal, and that even if it had, its request to intervene had come too late in the litigation.

The AG appealed Judge Barker’s order denying the state a chance to intervene, and a unanimous three-judge panel of the Seventh Circuit has now reversed that order.  The appellate court first said that the injury to the state from the consent decree clearly established standing, holding that “the state has a fundamental interest in the maintenance of its legislatively mandated policy to cooperate fully with the federal government in the enforcement of immigration laws … It is certainly within the state’s exclusive purview to establish its expectations of the law enforcement officers operating under its statutes.”  That injury was also not something beyond the ability or authority of the courts to fix, that is, it was “redressable.” 

Further, the court said, the state’s request to intervene had not been untimely, given that “[t]imeliness is not limited to chronological considerations but is to be determined from all the circumstances” and less than a month’s delay was trivial compared to the possible prejudice to the state of having enforcement of its laws permanently “frustrated.”

But the Seventh Circuit also went even further, and rebuked not only Judge Barker but also the ACLU and MCSO, as well as implicitly anyone else trying to create sanctuary policies through a “sue-and-settle” maneuver.  Adopting the AG’s argument, the court stated that “[t]he district court lacked Article III jurisdiction to declare unlawful and permanently enjoin Marion County’s detention of removable aliens …  the parties cannot ‘stipulate to the enlargement of federal jurisdiction’ by means of a consent decree.”

AG Hill described the Seventh Circuit’s ruling as “a win for common sense, state sovereignty and public safety … When federal authorities ask an Indiana police agency to detain a person in the agency’s custody, Indiana law requires the agency to cooperate.  To establish any contrary policy at the local level not only violates Indiana law but jeopardizes the safety and security of Hoosiers.”

Gavin Rose, counsel for the ACLU, expressed disappointment and said they were “in the process of evaluating our options with our client[.]”  They have 14 days from the issuance of the panel opinion (on May 9) to appeal to the full eleven-judge Seventh Circuit, and 90 days to petition the U.S. Supreme Court for review.  

Unless and until the panel is reversed, MCSO has indicated it will resume honoring detainers.