Sunday, August 08, 2010
A.G. places police in jeopardy
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Aaron S. Haas
Haas is a Oliver Hill Law Fellow in the citizenship and immigration program at Washington and Lee University School of Law in Lexington.
On July 30, Attorney General Ken Cuccinelli issued an official advisory opinion regarding the authority of local law enforcement officers to inquire about immigration status. This opinion is based on such faulty logic, and is so contrary to constitutional law, it places local police departments and officers at danger if they follow his advice. In order to avoid facing the risk of possible lawsuits, it is important that law enforcement officers and agencies understand that this opinion is contrary to federal law.
The key finding is as follows: "Virginia law enforcement officers have the authority to make the same inquiries as those contemplated by the new Arizona law. So long as the officers have the requisite level of suspicion to believe that a violation of the law has occurred, the officers may detain and briefly question a person they suspect has committed a federal crime. Furthermore, the United States Supreme Court has found that so long as the questioning does not prolong a lawful detention, police may ask questions about immigration status."
This finding appears to say that Virginia law enforcement officers have the authority to briefly detain an individual they suspect is in violation of immigration laws and question him about his immigration status. Such a finding would be consistent with the Arizona law, which says that "where reasonable suspicion exists that the person is an alien who is unlawfully present in the United States, a reasonable attempt shall be made, when practicable, to determine the immigration status of the person."
However, a closer look at what the attorney general actually says reveals that he is trying to mislead officers into an unconstitutional interpretation of their authority. To understand why, look once more at the operative language.
First, he says that officers may briefly detain and question a person if they have a reasonable suspicion that a crime has been committed. This is called an "Adams" stop, but does not apply to immigration violations because they are civil offenses, not crimes. He then follows up that statement by saying that a person, once lawfully detained, may be asked of his immigration status so long as it does not prolong the detention. This claim is based on a case in which someone was questioned while independently detained pursuant to a valid search warrant, but it would not apply to someone stopped simply for suspicion of violating immigration law (because such a detention would not be lawful), nor would it ordinarily apply to questioning beyond what an officer needs to ascertain whether a crime has been committed (because it would prolong the detention). The attorney general's opinion then combines these two separate propositions to reach the wildly inaccurate conclusion that Virginia officers have existing authority to do what the Arizona law ordered its officers to do -- stop and question individuals suspected of being in the country unlawfully.
The attorney general's misleading opinion does a disservice to law enforcement officers who risk their lives every day to keep us safe. First, it needlessly subjects them to the risk that they will violate their duty to uphold the Constitution. Such action is not only offensive to the vast majority of honest law enforcement personnel who want to enforce the law, not break it, but it also subjects them to lawsuits that may impose significant costs in attorneys' fees and damages on them and their departments.
Second, it threatens to disrupt the hard-won trust that has developed between law enforcement and immigrant communities. Our legal system has deliberately developed incentives for noncitizens to come forward if they witness crimes. These protections are intended to make our communities safer for everybody and to put violent criminals behind bars. There are specific protections for victims or witnesses of serious felonies, for victims of human trafficking, for victims of domestic violence, and for those willing to testify in major federal trials against organized crime. These people are going to be less willing to come forward if they fear the local police.
This poorly reasoned opinion will do little to solve the problem of illegal immigration, but will almost certainly cause problems for law enforcement and for safety in our communities. When the law is twisted to serve a political agenda, we all pay the price.
