Friday, November 23, 2001
Lockyer Says Police May Question People Stopped for Traffic Violations About Immigration Status
By a MetNews Staff Writer
Police may question a person who has been legally stopped, such as a traffic violator, about the person’s immigration status, Attorney General Bill Lockyer has opined.
“In California, a local peace officer may make an arrest when an individual has committed a felony, or where reasonable cause exists to suspect that a person has committed a felony, whether or not a felony has been committed,” Lockyer explained in an opinion made public late Tuesday.
“Therefore, a local officer may arrest for a felony violation of federal immigration law any time the officer has reasonable cause to believe such a violation has occurred,” the attorney continued. “…Inasmuch as a local law enforcement officer is authorized under state and federal law to make such an arrest, and to exchange information pertaining to immigration status with federal authorities…it follows that a local law enforcement officer may question an individual as to his or her immigration status.”
Lockyer made those observations in response to a request by Assemblyman Lou Correa, D-Santa Ana.
The attorney general cited I.N.S. v. Delgado (1984) 466 U.S. 210, which held that immigration agents didn’t violate the Fourth Amendment rights of factory workers who were questioned about their immigration status.
Mere questioning, the high court held, didn’t constitute a search or seizure because the workers were given “no reason to believe that they would be detained if they gave truthful answers to the questions put to them or if they simply refused to answer.” The justices rejected the workers’ claim that they were subjected to an atmosphere so intimidating that the questioning was tantamount to custodial interrogation.
Lockyer added a caveat to his opinion, emphasizing that officers may not selectively inquire as to a detainee’s immigration status merely because the individual speaks a language other than English.
“While suspicion is not a constitutional prerequisite for inquiry as to alienage, such an inquiry directed selectively to individuals who speak a language other than English would be tantamount to an aspect of the practice commonly referred to as racial profiling, where sound is substituted for appearance or other indicia of ethnicity,” Lockyer explained. “It has been noted that primary language skill flows generally from one’s national origin…In the context presented here, therefore, a non-English speaking classification is, for all practical purposes, a classification based on national origin. Such a selective enforcement would clearly violate the equal protection clause of the Fourteenth Amendment of the United States Constitution.”
In response to another question posited by Correa, Lockyer said that local law enforcement officers are permitted, but not required, to cooperate with the Immigration and Naturalization Service by supplying information about the immigration status of persons they have detained.
The attorney general noted that the mandatory reporting requirements of state law, enacted as part of Proposition 187 in 1994, were struck down by a federal district judge. The state dropped its appeal of that ruling as part of a settlement negotiated by Gov. Gray Davis in 1999 following his election to succeed Pete Wilson, a primary backer of the initiative.
The court ruling did not, however, affect relevant provisions of federal law, Lockyer noted. He cited the Personal Responsibility and Work Opportunity Reconciliation Act of 1996, better known as the welfare reform law, and the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, or IIRIRA.
Both acts prohibit a state from restricting the ability of local officials or agencies to exchange information regarding the immigration status of individuals, the attorney general pointed out.
The opinion, No. 01-213, was prepared for Lockyer by Deputy Attorney General Anthony S. Da Vigo.
Copyright 2001, Metropolitan News Company