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Obama vs Cuccinelli: Immigration

RICHMOND (August 3, 2010) – The Office of the Attorney General’s statement on the Marshall opinion:

The official opinion that Virginia law enforcement officers may inquire into the immigration status of persons stopped or arrested simply declares what is existing law.  In the context of a legal law enforcement stop or arrest, there is no legal distinction between immigration crimes and any other crime.  What a law enforcement officer can and cannot ask in a citizen encounter is the same whether the underlying concern is an immigration violation or a bank robbery.

Settled legal principles

The law does not distinguish between criminal violations of immigration law versus violations of any other criminal law.  Crime is crime.  As a matter of Fourth Amendment law, it is settled that:

– A police officer can approach anyone and ask him or her questions.  The officer cannot detain that person unless the officer has “reasonable articulable suspicion” or probable cause that a crime has been committed.  The person approached can choose to answer or not answer the questions.

– When a police officer has “reasonable articulable suspicion,” the officer can briefly detain a suspect and investigate whether a crime has occurred.  If the officer has probable cause to believe a crime has occurred, the officer can make an arrest.

These scenarios are true whether the crime is bank robbery, murder, trespass, or criminal violations of immigration laws.  The legal framework does not change just because the crime happens to be an immigration-related crime.

Although immigration is politically controversial, the legal principles discussed in the opinion are a matter of settled law and do not break any new legal ground.

What Delegate Robert Marshall asked the Attorney General’s Office

The question from Delegate Marshall was (1) whether Virginia officers have the legal authority to perform a “background check into the legal presence status of persons in a vehicle that is stopped by police or in similar circumstances as persons are being questioned in Arizona under their new Immigration Law;” and (2) if Virginia law enforcement officers do have this authority under current Virginia statutes, would those statutes also apply to zoning officers in counties and cities, and state park administrators.

Our response

(a)    As we noted in 2007, police can arrest people for criminal violations but, because the law is not clear, it is not advisable to arrest for civil infractions.

(b)   We noted that police can make inquiries:  When police have reasonable articulable suspicion to believe a crime has been committed, or that probable cause is present, police can inquire about that criminal violation – whether the crime is a violation of immigration laws or some other crime.

(c)    We said that when police have done a lawful traffic stop, police can ask about immigration status so long as that does not prolong the length of the stop.  The U.S. Supreme Court expressly has said that this is permissible.

(d)   We also noted that when persons are in more prolonged state custody (a traffic stop would not qualify), the Vienna Convention on Consular relations requires an inquiry into citizenship.

(e)   Finally, we noted that conservation officers do have the authority to investigate crimes (including – where appropriate – immigration violations), but zoning officers do not.

Does this usurp federal authority?

This does not usurp federal authority, because Congress created by design a cooperative federal-state immigration enforcement process.  Some aspects of immigration law are reserved to federal authorities, while some are joint federal-state efforts.  With respect to crimes, Virginia routinely cooperates with the federal government on matters of immigration enforcement.

The Supreme Court of California noted (correctly) in 2009 that:

“While it is well settled that only the federal government may regulate the border and establish rules governing who may enter and who may stay, equally clear is that Congress has in its immigration enactments embraced a model of collaborative federalism under which states and localities may assist in the enforcement of federal immigration policy.” In re Jose C., 198 P.3d 1087, 1091 (Cal. 2009).

About Tom White

Tom is a US Navy Veteran, owns an Insurance Agency and is currently an IT Manager for a Virginia Distributor. He has been published in American Thinker, currently writes for the Richmond Examiner as well as Virginia Right! Blog. Tom lives in Hanover County, Va and is involved in politics at every level and is a Recovering Republican who has finally had enough of the War on Conservatives in progress with the Leadership of the GOP on a National Level.

4 Responses to “Obama vs Cuccinelli: Immigration”

  1. Nathan Cox says:

    I’d love to know KC’s thoughts on this video… specifically, what Judge Napolitano has to say..
    This may shock a lot of people… but listen to what he says.

  2. I think the Judge is way off base here. Unlike Pa, Arizona is not trying to take the task away from the Federal Government, they are turning these people over the the Feds for them to take action. Pa wanted to round up Commies and lock them up.

    I wonder why the state of Arizona does not file a suit against the Feds to force them to do their jobs. A writ of mandamus or something. And request that the court give Arizona authority to act on behalf of the Feds until such time the Feds decide to enforce the law. The problem is bad in Az, but the problem spills over to all states.

    The basic problem is the government is not doing their job. And the Judge is correct, it goes back many administrations. But the lawlessness in Mexico has made the problem far worse than it ever was.

    Did you know that Arizona’s Drivers Licenses must be renewed at age 65? Once you get one, you are good to go. ID for life. I mean, one place they could have the State take a look at citizenship status is at the DMV. If they can’t prove they are a citizen, issue them a Non Resident license until they can prove it.

    In Virginia you must prove residency. A lease or deed, a utility bill (other than cell phone), and a bunch of other proof. This is related to the 9/11 hijackers having Virginia D/L’s. If you have to prove you are a legal resident of the state, why not prove you are a legal resident of the US?

  3. Repeal_The_Va_Radar_Detector_Ban says:

    As you may know, Virginia is the only state that bans the use and sale of detectors. There is no evidence that the detector ban increases highway safety. Our nation’s fatality rates have fallen consistently for almost two decades. Virginia’s fatality rate has also fallen, but not any more dramatically than it has nationwide. Research has even shown that radar detector owners have a lower accident rate than motorists who do not own a detector.

    Maintaining the ban is not in the best interest of Virginians or visitors to the state. I know and know of people that will not drive in Virginia due to this ban. Unjust enforcement practices are not unheard of, and radar detectors can keep safe motorists from being exploited by abusive speed traps. Likewise, the ban has a negative impact on Virginia’s business community. Electronic distributors lose business to neighboring states and Virginia misses out on valuable sales tax revenue.

    Radar detector bans do not work. Research and experience show that radar detector bans do not result in lower accident rates, improved speed-limit compliance or reduce auto insurance expenditures.
    • The Virginia radar detector ban is difficult and expensive to enforce. The Virginia ban diverts precious law enforcement resources from more important duties.
    • Radar detectors are legal in the rest of the nation, in all 49 other states. In fact, the first state to test a radar detector ban, Connecticut, repealed the law – it ruled the law was ineffective and unfair. It is time for our Virginia to join the rest of the nation.
    • It has never been shown that radar detectors cause accidents or even encourage motorists to drive faster than they would otherwise. The Yankelovich – Clancy – Shulman Radar Detector Study conducted in 1987, showed that radar detector users drove an average of 34% further between accidents (233,933 miles versus 174,554 miles) than non radar detector users. The study also showed that they have much higher seat belt use compliance. If drivers with radar detectors have fewer accidents, it follows that they have reduced insurance costs – it is counterproductive to ban radar detectors.
    • In a similar study performed in Great Britain by MORI in 2001 the summary reports that “Users (of radar detectors) appear to travel 50% further between accidents than non-users. In this survey the users interviewed traveling on average 217,353 miles between accidents compared to 143,401 miles between accidents of those non-users randomly drawn from the general public.” The MORI study also reported “Three quarters agree, perhaps unsurprisingly, that since purchasing a radar detector they have become more conscious about keeping to the speed limit…” and “Three in five detector users claim to have become a safer driver since purchasing a detector.”
    • Modern radar detectors play a significant role in preventing accidents and laying the technology foundation for the Safety Warning System® (SWS). Radar detectors with SWS alert motorists to oncoming emergency vehicles, potential road hazards, and unusual traffic conditions. There are more than 10 million radar detectors with SWS in use nationwide. The federal government has earmarked $2.1 million for further study of the SWS over a three-year period of time. The U.S. Department of Transportation is administering grants to state and local governments to purchase the SWS system and study its effectiveness (for example, in the form of SWS transmitters for school buses and emergency vehicles). The drivers of Virginia deserve the right to the important safety benefits that SWS delivers.
    *** A small surcharge($5-$10) or tax(2%-3%) could be added to the price of the device to make-up for any possible loss of revenue from reduced number of speeding tickets and the loss of tickets written for radar detectors.***

    Please sign this petition and help repeal this ban and give drivers in Virginia the freedom to know if they are under surveillance and to use their property legally:


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Tom White Says:

Nothing is more conservative than a republican wanting to get their majority back. And nothing is more liberal than a republican WITH a majority.

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