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Federal Court Spanks Indiana Law Allowing Immigrants To Be Arrested Even If They Committed No Crime

By Ian Millhiser  

"Federal Court Spanks Indiana Law Allowing Immigrants To Be Arrested Even If They Committed No Crime"

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A federal court in Indiana struck down a state law on Friday that would have enabled police to arrest many immigrants even if they had no evidence whatsoever that those immigrants had committed a crime.

Under the Indiana law, police are authorized to arrest immigrants who are the subject of various federal immigration-related actions. Some of these actions indicate the immigrant is to be deported, others have little or nothing to do with whether the immigrant is allowed to remain in the country lawfully. Indeed, as the court points out, one of the documents authorizing police to arrest immigrants in Indiana is a document that is used “to notify an individual that he or she has been granted lawful status.” So effect of the Indiana law is that an immigrant could learn that they may lawfully remain in the United States, only to have this lawful status used against them when Indiana police decide to arrest them.

The court found several problems with the Indiana law, but it reserved its harshest words for the law’s disregard for immigrants’ right to be free from unlawful searches and seizures under the Fourth Amendment:

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. . . .

[W]e find that Section 20 is susceptible to only one interpretation, to wit, that it authorizes the warrantless arrest of persons for matters and conduct that are not crimes. Because such power contravenes the Fourth Amendment, Section 20 is unconstitutional.

Unfortunately, other federal courts have twisted the law into knots in order to limit the Fourth Amendment rights of immigrants. One federal appeals court, the severely conservative Fifth Circuit, even went so far as to suggest that undocumented immigrants do not have any Fourth Amendment rights at all.

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