A Law School Lesson for Clueless Cooch


    Aaron Haas, an Oliver Hill Law Fellow at W & L School of Law, had a law lesson for Ken Cuccinelli in today’s Roanoke Times. According to Haas, Cuccinelli “is trying to mislead [police] officers into an unconstitutional interpretation of their authority,” regardling stopping people and questioning them about their immigration status.

    As Hass sees it, Cuccinelli’s has confused two completely different situations by asserting that police can briefly detain and question a person about immigration status if they have a reasonable suspicion that a crime has been committed.

    The right to stop, briefly detain and question people because of suspicion they have committed a crime, Haas says, is far too easy to confuse with being able to stop and question a person on suspicion that person is an illegal immigrant. Immigration status is a civil matter, not a crime. As I understand what Haas is asserting, police can inquire about immigration status if a person is in custody for possible criminal activity, but they may well misinterpret what Cuccinelli says they have the authority to do. They can’t question someone simply because he “looks” alien or because he has been stopped for a traffic violation.

    Cooch certainly didn;t make that clear in his “leap” into the Arizona legal quagmire. As is usual in his quixotic lust for headlines and controversy, he threw himself – and dragged the reputation of Virginia down yet again – willy-nilly into something he hadn’t thought through. If police officers are misled by his pronouncement to “violate their duty to uphold the Constitution,” Haas notes they may be subject to lawsuits that will inflict significant costs and embarrassment on them. But, that wasn’t Haas’ only concern. There is a second one that I feel is far more important: the trust of witnesses to crime.

    Haas is concerned about what Cuccinelli’s pronouncement will do to the relationship between the police and the immigrant community, legal or illegal. It is in the interest of all of us to have people – whether they are citizens, legal immigrants, or illegal immigrants – come forward with information about criminal activity.

    As Haas put it,

    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.

    Amen to that.

    • DanielK

      The instillation of fear into the immigrant community, particularly the illegal immigrant community comes from the “pro immigration” advocates more than anything else.  I don’t find it odd that most people believe cops are stupid but we aren’t. Anyone who thinks that we are going to compromise a case because an illegal alien reported a crime is just stupid.  The ultra extreme “pro immigrant” advocates tell immigrants both illegal and legal that if they report a crime to police they are going to be deported.  That is so far from the truth it makes me want to puke.  Law enforcement has plenty of programs to protect witnesses and crime victims without suffer the consequences of the law themselves.  Now, some cases are unavoidable, i.e. those with active arrest warrants but that is the case for anyone whether you are a citizen or not.  This whole fear mongering is really nothing more than pandering and a weak argument against stepped up enforcement.  Even localities like Herndon and Prince William did not go after illegal immigrant witnesses because it’s the common sense thing to do.  Unfortunately, local “pro-immigrant” advocacy groups are just as guilty, and sometimes more guilty about instilling that fear in the community.

      As for lawsuits, officers can articulate their reasoning for initiating a stop or anything else.  Remember, in Prouse v. Delaware the Court held that as long as there is a lawful reason to conduct a stop then their is nothing unconstitutional.  This means that as long as there is a law reason for a stop (traffic violation, etc) then the officer and department is protected from liability.  It’s a hard standard for a plantiff to overcome which is why such racial profiling law suits are very rare and are usually the result of heinous instances of the practice by law enforcement.

      Finally, inquiring about immigration status really does nothing for either side.  First, police come in contact with illegal aliens all the time.  They know who they are and that they are illegal and nothing ever comes of it.  Now, if I make a traffic stop and the driver has no operators license and he gives me his name and it comes back as him but he is illegal through his own admission but ICE won’t issue a detainer on him the officer can’t do anything further.  Remember, it is not up to the local agency to arrest them for being illegally present in the country, rather it is up to ICE to determine if they want to have a detainer placed on them.  Therefore, we are back to square one.  

      There is no real point in any chances to our enforcement methods in Virgina is my opinion.  We do enough already and have a better track record than states and localities that try and implement their own immigration laws. Virginia is the perfect example of how states can work in conjunction with ICE and successful identify and target illegal aliens.