Thursday, February 16, 2012

Virginia Legislature Favors Pretextual Police Stops Over Fourth Amendment Rights to Weed Out Illegal Immigrants

On Friday, February 10, 2012, Republicans in the Virginia General Assembly won another battle in the war against illegal immigration, pushing House Bill Number 1060 (Bill) through the House Committee for Courts of Justice.  

Next up, the Bill heads to the floor of the House of Delegates for approval.  House Bill Number 1060, introduced by Delegate Richard L. Anderson of Prince William County, reflects the Virginia legislature’s recent efforts to crack down on illegal-immigration.  Section 19.2-83.3 of the new version of the Bill reads:

Whenever any person is lawfully arrested and taken into custody by a law-enforcement officer, the officer shall inquire as to whether the arrestee is legally present in the United States.  If, following the inquiry, the law-enforcement officer has reason to believe that the arrestee may not be legally present in the United States, he shall communicate to the judicial officer the facts and circumstances underlying his belief.  The judicial officer shall take such facts and circumstances into consideration when discharging his duties pursuant to § 19.2-120.
While on its face, the Bill may not seem contrary to the present law, an accompanying Fiscal Impact Statement explains, “[t]his [B]ill expands such [citizenship] inquiries by requiring inquiries of everyone arrested, independent of whether they were taken into custody at a jail.”

Local leaders are outspoken in their opposition, and the adverse effects it is sure to have on their communities.  Jaime Areizaga-Soto of the Virginia Hispanic Bar Association believes this is a “blank check” for the institutionalizing of racial profiling of Latinos.  At the subcommittee hearing, he asserted, “[o]ur hard-earned taxes in Virginia should be used to protect our citizens, instead of terrorizing them.”  Alba Jaramillo, co-director of the Virginia Sexual and Domestic Violence Action Alliance, agreed, suggesting that the new policy is likely to create tension, fear, and distrust, of citizens towards law enforcement.

Champions of the Bill are quick to divert the conversation away from activists and towards community safety, claiming that only true criminals will be subject to a citizenship status check.  Delegate Anderson asserted that “[t]his [B]ill deals with what happens after a person has committed an illegal act.  It has nothing whatsoever to do with identifying or profiling people on the street.  It applies equally to everyone no matter how they look, no matter how they talk, no matter how they walk."  The fallacy in Anderson’s argument, however, is that the Bill will not only deal with people who have committed illegal acts.  Guilt does not attach with the handcuffs of an arresting officer.  Anderson is forgetting that the Constitution guarantees a trial by jury before an individual is deemed a criminal.

What Anderson and the Bill’s proponents are also failing to consider is the discriminatory effect the law will have on the application of the Fourth Amendment’s prohibition against unreasonable search and seizures.  This new law, in concert with the Supreme Court rulings that permit pre-textual motives for arrests so long as there are objectively justifiable reasons for the arrest (e.g. Colorado v. Bannister, Whren v. United States, and United States v. Robinson) in effect allow law enforcement officers to arrest individuals that the officer believed to be in the country illegally.  Drafting the Bill as the legislature has to include citizenship inquiries of arrestees who are not even taken to jail promotes the usage of profiling even more.  If law enforcement officers know that they are required to check the status of every arrestee, they will be more inclined to use citizenship inquiries as the pretext for making arrests.

This notion is supported by the Supreme Court’s decision in United States v. Robinson, where the Court found that a traffic violation arrest was not invalid despite the fact that the arrest was a mere pretext for a narcotics search.  This ruling essentially allows law enforcement to subjectively decide which laws apply to each citizen according to their perceived race.  Thus, if an officer sees a white person commit a minor crime, he may choose not to detain the person, but if an officer sees a person who “looks un-American,” he may use that as a pretext to unnecessarily detain and arrest the individual for a citizenship status check.  This type of racial profiling undoubtedly constitutes institutionalized discrimination. Even setting racial profiling arguments aside, making trivial arrests of minorities just to enable a citizenship status check is an enormous waste of police resources.

Perhaps most important is the notion that if an arrest is made, and asserted reason is a pretext for a racially-induced motive, with no strict scrutiny standard to apply to review the arresting officer’s conduct, a potentially innocent person who has not committed any crime at all, may be turned over to the Immigration and Naturalization Service.
If our choice is to uphold a system in which law enforcement is not held objectively responsible for their actions, bills like House Bill Number 1060 cannot be passed into law.  The existence of unaccountable law enforcement along with racially motivated statutes will only breed more instances of discrimination and racial profiling in our society and disproportionately sacrifice the constitutional rights of targeted minorities in our communities.

Ali Eacho,
Blogger, Criminal Law Brief

Image by Grendelkhan


  1. HB 1060 raises several criminal procedure concerns that will surely be sorted out if it is signed into law. For example, what happens if an individual is arrested, invokes his Miranda right to counsel, and is then questioned by the officer about his citizenship status? Assuming the waiver was unambiguous, and the arrestee does not waive his right to counsel, once this right is exercised, questioning regarding all potential crimes must cease. Living in this country illegally is, well, illegal, so it appears that the invocation of this right forbids this questioning, especially if the individual is in fact living in the United States illegally. The same analysis applies the invocation of the right to silence, however, officers are able to re-initiate conversations after a while. On the Virginia side of things, could the State successfully argue that this inquiry constitutes a question attendant to custody? Not likely. If passed, this bill will be heavily contested in the courtrooms. Maybe opponents of the bill will get the last laugh and find a way for a court to strike it down.

  2. nice opinion.. thanks for sharing....