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.


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