CopLaw Update

February 7, 2008

 

Training Is The 13th Juror™

 

License, Registration, Insurance Card and "Immigration Status"

Connecticut's law Enforcement Officers with sworn Peace Officer Status have inherent arrest authority for "federal" offenses and have always possessed this authority under C.G.S.53a-24.

 

Danbury, Connecticut is entering into a 287(g) MOU. The federal authority is identified below:

 

110 STAT. 3009–563 PUBLIC LAW 104–208—SEPT. 30, 1996

http://www.treasury.gov/offices/enforcement/ofac/legal/statutes/pl104_208.pdf

SEC. 133. ACCEPTANCE OF STATE SERVICES TO CARRY OUT IMMIGRATION ENFORCEMENT.

Section 287 (8 U.S.C. 1357) is amended by adding at the end the following:

‘‘(g)(1) Notwithstanding section 1342 of title 31, United States Code, the Attorney General may enter into a written agreement with a State, or any political subdivision of a State, pursuant to which an officer or employee of the State or subdivision, who is determined by the Attorney General to be qualified to perform a function of an immigration officer in relation to the investigation, apprehension, or detention of aliens in the United States (including the transportation of such aliens across State lines to detention centers), may carry out such function at the expense of the State or political subdivision and to the extent consistent with State and local law.

‘‘(2) An agreement under this subsection shall require that an officer or employee of a State or political subdivision of a State performing a function under the agreement shall have knowledge of, and adhere to, Federal law relating to the function, and shall contain a written certification that the officers or employees performing the function under the agreement have received adequate training regarding the enforcement of relevant Federal immigration laws.

‘‘(3) In performing a function under this subsection, an officer or employee of a State or political subdivision of a State shall be subject to the direction and supervision of the Attorney General.

‘‘(4) In performing a function under this subsection, an officer or employee of a State or political subdivision of a State may use Federal property or facilities, as provided in a written agreement between the Attorney General and the State or subdivision.

‘‘(5) With respect to each officer or employee of a State or political subdivision who is authorized to perform a function under this subsection, the specific powers and duties that may be, or are required to be, exercised or performed by the individual, the duration of the authority of the individual, and the position of the agency of the Attorney General who is required to supervise and direct the individual, shall be set forth in a written agreement between the Attorney General and the State or political subdivision.

‘‘(6) The Attorney General may not accept a service under this subsection if the service will be used to displace any Federal employee.

‘‘(7) Except as provided in paragraph (8), an officer or employee of a State or political subdivision of a State performing functions under this subsection shall not be treated as a Federal employee for any purpose other than for purposes of chapter 81 of title 5, United States Code, (relating to compensation for injury) and sections 2671 through 2680 of title 28, United States Code (relating to tort claims).

‘‘(8) An officer or employee of a State or political subdivision of a State acting under color of authority under this subsection, or any agreement entered into under this subsection, shall be considered to be acting under color of Federal authority for purposes of determining the liability, and immunity from suit, of the officer or employee in a civil action brought under Federal or State law.

‘‘(9) Nothing in this subsection shall be construed to require any State or political subdivision of a State to enter into an agreement with the Attorney General under this subsection.

‘‘(10) Nothing in this subsection shall be construed to require an agreement under this subsection in order for any officer or employee of a State or political subdivision of a State—

‘‘(A) to communicate with the Attorney General regarding the immigration status of any individual, including reporting knowledge that a particular alien is not lawfully present in the United States; or

‘‘(B) otherwise to cooperate with the Attorney General in the identification, apprehension, detention, or removal of aliens not lawfully present in the United States.’’.

Connecticut General Statute Sec. 53a-24. Offense defined. Application of sentencing provisions to motor vehicle and drug selling violators. (a) The term "offense" means any crime or violation which constitutes a breach of any law of this state or any other state, federal law or local law or ordinance of a political subdivision of this state, for which a sentence to a term of imprisonment or to a fine, or both, may be imposed, except one that defines a motor vehicle violation or is deemed to be an infraction. The term "crime" comprises felonies and misdemeanors. Every offense which is not a "crime" is a "violation". Conviction of a violation shall not give rise to any disability or legal disadvantage based on conviction of a criminal offense....
 

The inherent authority of local police to make immigration arrests was recognized by the Justice Department’s Office of Legal Counsel (OLC) and was announced by Attorney General  Ashcroft on June 6, 2002. …OLC’s unequivocal conclusion was that arresting aliens who have violated either criminal provisions of the Immigration and Nationality Act (INA) or civil provisions of the INA that render an alien deportable “is within the inherent authority of the states.”  Such inherent arrest authority has never been preempted by Congress. This inherent authority is simply the power to arrest an illegal alien who is removable, detain the alien temporarily, and then transfer the alien to the custody of the Bureau of Immigration and Customs  Enforcement (ICE).

In contrast, Section 287(g) delegates authority that is considerably broader than the power to merely arrest an alien and transfer him to ICE custody. Section 287(g) encompasses the spectrum of basic enforcement powers. Such 287(g) authority includes not only the power to arrest and transfer, but also the power to investigate immigration violations, the power to collect evidence and assemble an immigration case for prosecution or removal, the power to take custody of aliens on behalf of the federal government, and other general powers involved the routine enforcement of immigration laws. This broader enforcement authority can only be delegated to state and local law enforcement agencies through a formal Memorandum of Understanding (MOU), which effectively deputizes members of state or local law enforcement agencies to perform the “function[s] of an immigration officer.” 8 U.S.C. § 1357(g).

 Appropriately, Congress expressly recognized in 1996 that the creation of Section 287(g) would not displace the inherent arrest authority that local police might choose to exercise from time to time and without express delegation from the federal government:

In a March 22, 2005 ruling, in Muehler v Mena, in unanimous decision from a Court known for its 5-4 splits, the United States Supreme Court essentially said that asking about immigration status during a lawful police contact (or, by implication, any lawful contact) was as fundamental a question as asking for name, address and date of birth. Indeed, the Court made clear that no predicate "independent reasonable cause' need exist to inquire into immigration status. It is the Law of the Land.

“In Muehler v. Mena the Court reinforced the clear intent of Congress in this matter,”  “Inquiring about an individual’s immigration status can and should be a routine part of ascertaining information, no different than asking questions about one’s name, or date and place of birth. Local police come into contact with people who are violating federal immigration laws on a daily basis. Freeing local police to inquire about an individual’s immigration status and allowing them to act is essential to curbing mass illegal immigration and protecting our homeland security.”
 
Calling a decision by the 9th Circuit Court of Appeals “faulty,” the Supreme Court held that “mere police questioning [regarding one’s immigration status] does not constitute a seizure.” The Court continued its landmark ruling on this issue by stating that “the officers did not need reasonable suspicion to ask Mena for her name, date of birth, or immigration status.”...
 
If there were even a hint that merely asking about immigration status is discriminatory (as claimed by proponents of the proposed Ordinance), then you might expect to have had at least one dissenter in that decision: Justice Ruth Bader Ginsberg. Justice Ginsberg was general counsel of the ACLU from 1973 to 1980 and sat on its National Board of Directors from 1974 to 1980. Justice Ginsberg's joining the entire court in this decision speaks volumes about its judicial wisdom and legal common sense.
 
 Congress expressly intended for local law enforcement to act in cases in which officers have reason to believe that an individual is in the country illegally, even though immigration law enforcement is not their primary responsibility. In 1996, Congress passed and President Clinton signed legislation that protects individual officers who act to enforce federal immigration laws, even if their departments have non-cooperation policies.

Local police can enforce laws on immigration...A recently unearthed U.S. Justice Department memo says state and local cops can make arrests after traffic stops if they find civil immigration violations, such as someone overstaying a visa....No specific federal authority is needed for local officers to make such arrests, according to the 2002 memo, which came to light in a recent court case....The 2002 memo was issued by then-Attorney Gen. John Ashcroft and his staff. It overturned a 1996 letter from Justice Department lawyers that said state and local police could enforce only criminal immigration violations, such as sneaking across a border....Attorney General is stating that state and local authorities do have the authority "to make warrantless arrests for federal crimes," meaning that they can arrest people for criminal violations of immigration law even if no warrant has been issued.

Editor's Comment: The reader is encouraged to provide this information to their agency's Legal Advisor for clarification and understanding as it relates to their respective Constitutional and Statutory law as filtered through their respective agency Use of Force Policy ( CGS 53a-22 ) and Arrest Authority under CGS 54-1f

No one can kill me without my consent… John 10:11,18

It is more blessed to give than to receive. …Act 20:35

Reginald F. Allard, Jr.

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