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Deane Gets It Almost Right
By Greg L | 19 October 2007 | Prince William County | 34 Comments
Prince William County Police Chief Charlie Deane appeared on WMAL this morning to discuss with Chris Core and his listeners how the Police Department will implement the rule of law resolution passed by the Board of Supervisors on July 10th. He did a good job of describing his intent for this initiative, and went through many of the points he has covered in other forums, including his recent appearance at a Help Save Manassas meeting. His consistent message in many ways is very reassuring.
There’s one point that Chief Deane continues to make, however, that seems to be very wrong. Deane insists that the Police Department has no authority to arrest individuals solely for violations of federal immigration law, and doesn’t ever disclose his basis for this belief. I believe this is incorrect, and thanks to Kris Kobach of the Immigration Reform Law Institute, I can walk readers through why this is the case.
Federal law has never specifically authorized state and local law enforcement officers to arrest individuals for violations of federal law, but this regularly happens. United States v. Di Re (332 U.S. 581, 591 (1948)) ruled that state law enforcement officers have the power to make warrantless arrests of persons who violate federal laws. That conclusion has been affirmed in Miller v. United States (357 U.S. 301, 303-05 (1958)), and United States v. Janik (723 F.2nd 537, 548 (7th Cir. 1983)).
The courts have also ruled on this in the specific context of federal immigration law. In Gonzales v. City Of Peoria (722 F.2nd 468, 474 (9th Cir. 1983)) the Ninth Circuit ruled that local police officers were not precluded from enforcing federal statutes in a case that centered on federal immigration law. The Tenth Circuit dealt with this question as well in United States v. Salinas-Calderon (728 F.2nd 1298, 1301 (10th Cir. 1984)), United States v. Vasquez-Alvarez (176 F.3rd 1294,1295 (10th Cir. 1999)), and United States v. Santana-Garcia (264 F.3rd 1188, 1194 (10th Cir. 2001)) and consistently ruled that state and local police have the authority to enforce federal immigration law.
From a constitutional perspective, the sovereign powers of state includes broad police powers that need not be enumerated under the Tenth Amendment. Federal preemption requires that federal law specifically state that a preemption exists or create a condition where there is a conflict between state and federal law, in which federal law would of course be supreme. That hasn’t happened. Instead, Congress specifically enrolled states and localities in the enforcement of federal immigration law with the Section 287(g) Program, created a number of federal programs specifically designed to accept illegal aliens that local or state law enforcement encounters or pay the costs of holding illegal aliens in non-federal facilities. One of these programs, the “Quick Response Teams” that Immigration and Customs Enforcement have established, is designed to do nothing but take illegal aliens detained by state and local law enforcement authorities. Now if federal law preempted state and local law enforcement efforts from arresting illegal aliens solely for immigration violations, why would they created a scheme to accept those arrested by states and localities?
Chief Deane could more accurately state that case law would seem to indicate that county police officers do have the power to arrest illegal aliens solely for violations of federal immigration law just as it has the power to arrest individuals without warrant for other violations of federal law. He could then say that he hasn’t been directed to do so by the Board of Supervisors, so it’s not his intent to have this done unless a police officer, using his discretion, believes that doing so is important for public safety in that specific instance.
Apparently Chief Deane has gotten some potentially faulty advice from County Attorney Ross Horton, which is causing him to parrot a legal position that he can’t support. Perhaps some discussion with Ross Horton can clear this up, or at least get the county to substantiate this legal position so that a meaningful debate about the powers available to our Police Department can happen. This question definitely needs to be resolved.
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As an example of this refer to the PWC police officer who pulled over a van filled with illegal immigrants. They were detained by the officer, and ICE picked them up. I am sure the occupants of the Van were no detained for any other reason then their suspected illegal status.
see MJM article
http://www.manassasjm.com/servlet/Satellite?pagename=MJM%2FMGArticle%2FWPN_BasicArticle&c=MGArticle&cid=1173353142182&path=!news
Or maybe to get them out of the human trafficking system……
Maybe he already knows this and doesn’t want to do it.
pwchomowner,
Get your facts straight this is a story about a State Tropper, not a PWC Cop. I think under the terms of the resolution Deane is right.
Everyone is worried about paying for Illegal’s health care and schools, but that has not been touched at all. Plus the resolutions was with 2.5% funding. Yes $350K is 2.5% of 14 Million. Stewart is a blow hard obstructionist. The measure will not resolve the issue. We need to sue the Federal Government to clean up the mess they have made.
Anon, you are right it was a state trooper, although the point remains the same, non federal agents do detain people for no other reason then they are suspected to be illegal immigrants.
“Apparently Chief Deane has gotten some potentially faulty advice from County Attorney Ross Horton, which is causing him to parrot a legal position that he can’t support. Perhaps some discussion with Ross Horton can clear this up, or at least get the county to substantiate this legal position so that a meaningful debate about the powers available to our Police Department can happen. This question definitely needs to be resolved.”
Or perhaps Chief Deane and Ross Horton and the PWC government are trying to keep from being sued.
Greg:
Title 8, USC Sec. Sec. 1357. Powers of immigration officers and employees:
(a) Powers without warrant
Any officer or employee of the Service authorized under regulations
prescribed by the Attorney General shall have power without warrant–
(1) to interrogate any alien or person believed to be an alien
as to his right to be or to remain in the United States;
The “Service” referred to is INS, now ICE. Since the law gives the power to detain and question only to ICE officers and employees, a strict construction of that law would be that power was not given to members of any other police force. Unless there’s a case directly on point in this jurisdiction (4th Circuit) holding that the law does not preclude local police officers from questioning and arresting for unauthorized presence, I would have to say that Mr. Deane’s position is certainly legally supportable and risk averse.
Just because that section extends powers to the “Service” does it necessarily revoke those powers from state and local governments? If congress wanted to do that, they would have said so.
Wold this apply to Ricardo Nava Juarez?
PWC can’t afford the program let alone a lawsuit…..:)
Greg:
“If congress wanted to do that, they would have said so.” It depends upon what theory of statutory interpretation you use. I personally am a strict constructionist, and believe that if Congress empowers an entity to do something, that’s the only entity holding that power. Otherwise, it could have said “any duly appointed police officer of any municipality, state, or the federal government shall have the power …” . But that’s just me (and my fellow members of the Federalist Society). Until a case on point in this jurisdiction holds otherwise, or the law is changed, I think the Chief is following a prudent course. It would be convenient in this situation to argue otherwise, but such an argument would be counter to my philosophy.
The issue, I believe, is not whether PWC police has authority to arrest people. They can obviously detain people with probable cause for any state, local or federal crime. However, they cannot stop or detain someone solely on suspicion that this person is an illegal alien. That would be illegal, since citizens do not have to carry id, and can not be stopped simply to ask for it, the supreme court upheld that a long time ago when a wealthy black jogger was stopped by police in his neighborhood for not presenting an id.
PWCHomeowner: Upon what authority can PWC police “obviously detain people with probable cause for any … federal crime?”
Not all federal law. They can’t arrest for tax evasion.
What Deane needs to do is contact Sheriff Joe and ask him what his procedures are. Would Deane be up to this? Or….does he really NOT want to do anything?
Patriot, are you kidding? Deane is not going to ask Sheriff Joe
anything….
Advocator,
as a strict constructionist would you not agree that the State has this right under the 10th amendment? The law you stated shows the powers granted the service (federal). The States still have some authority (I hope).
PWC officers do not have the authority to stop or detain anyone Just because they suspect they are an illegal immigrant.
Regarding this statement from above:
Greg L. Stated:
“Just because that section extends powers to the “Service” does it necessarily revoke those powers from state and local governments? If congress wanted to do that, they would have said so.”
In the opinions below Greg L, at least a few Attorney’s have stated that the Constitution did revoke those powers from locals.
Our State Attorney General said that clause does not apply to state or local police. That opinion (along with the County Attorney’s Office) is the basis of the PWCPD action. It also is the basis of Herndon’s and soon to be Loudoun’s action.
Advocator on 19 Oct 2007 at 1:03 pm:
PWCHomeowner: Upon what authority can PWC police “obviously detain people with probable cause for any … federal crime?”
Advacator, what gives a local police department the authority to capture and arrest a bank robber (a federal crime?)
You gotta love this guy (Sheriff Joe.) Don’t see too many lawsuits filed against him.
http://www.bizjournals.com/phoenix/stories/2007/10/15/daily19.html
Anonymous 2:08, thanks.
Anonymous (or should I say “Ananymous”): “Advacator, what gives a local police department the authority to capture and arrest a bank robber (a federal crime?)”
Many crimes are both state and federal crimes, or the act itself constitutes several crimes, one of which may be a state crime. The act of robbing a bank violates many state statutes, as well as a federal one. Thus, a state or local police could stop and arrest a bank robber.
Try typing your comments on a Word file first, then hit the F7 (for the etymologically challenged) button. Then block and copy to the website.
What Virginia statutes does bank robbery violate? I looked, and didn’t find any.
Just plain common law robbery.
“What Virginia statutes does bank robbery violate? I looked, and didn’t find any.”
Come on Greg.
§ 18.2-93. Entering bank, armed, with intent to commit larceny.
If any person, armed with a deadly weapon, shall enter any banking house, in the daytime or in the nighttime, with intent to commit larceny of money, bonds, notes, or other evidence of debt therein, he shall be guilty of a Class 2 felony.
18.2-58. You don’t rob a bank, you rob a person (teller) at a bank - Federal law comes into play because they insure the money that was taken [ by force ] from its custodian, a person i.e., teller.
Advocator, thanks for the cite. I hadn’t seen a reference to this ever being prosecuted, and the charges on this crime always seem to be federal ones.
So entering a bank with intent to commit larceny is against Virginia law, but actually committing bank robbery isn’t and is covered under federal statutes, instead. Is this accurate?
Greg: I think you’re parsing a bit too much. Yes, bank robbery is against state law. How could you actually commit bank robbery without entering and intending to commit larceny? [Might be better if you don’t answer that on line, we could discuss some interesting possibilities tomorrow]. Furthermore, as another poster pointed out, Virginia’s robbery statute would also cover a bank robbery.
The charges are usually federal, because the feds are the victims in a bank robbery. Nothing prevents the state from prosecuting under this statute, though.
Before we get hung up on bank robberies, though, let’s get back to the original point. Charlie Deane’s boys and girls cannot stop, detain, and interrogate merely for the charge of unauthorized presence in the country. That’s a federal offense and the above cited law under Title 8 gives authority to enforce it only to members of the “Service.” If Congress wanted to give authority to any other police force, it would have called out that force in the law.
I concede that there are other legal theories that would conclude the opposite. My point is that, until one of those theories is adopted by the Eastern District of VA or the entire 4th Circuit, the County is prudent not to pursue that practice as a matter of policy.
I’m off the ‘Net. Hasta manana, mi amigo. Miller tiempo.
Advocator,
Read further,
Title 8 of the US Code, Section 1325, 1324a, &1324c, which states,”all officers whose duty it is to enforce criminal laws shall have authority to make arrests for violation of any provision of this section.” - and -
*****
Section 1644 states, ” No local ordinance, rule, or measure shall stop law enforcement officers from enforcement of this section.” - (Affirmed SDCNY, US vs. Rudy Giuliani, 1996).
******
Chief Dean is wrong. He should do his duty properly or resign.
This is also true of every member of law enforcement.
Why is this even being discussed? This is so fundamental a point, that one would think, particularly after all the sturm und drang of the past few months, that everyone would understand it perfectly. Chief Dean is absolutely correct. It isn’t a close call, it isn’t a nuanced or complicated issue. Being out of status or being an uninspected entrant is not a crime. We deal with it civilly at the federal level using federal officers designated under federal law to take care of these things. Federal authority is paramount and preemptive in this area. Of course, local governments have police powers to enforce local ordinances against many of the behaviors complained of here: public drunkenness, littering, overcrowding in homes, driving while intoxicated, sexual assault, etc. Those types of violations are as readily enforced against illegal aliens by your local police force as against citizens. If Roberto is weaving down the road, he can be stopped just the same as Bob. Roberto can’t be stopped, however, because a local officer saw him picking up a carry out order of black beans and rice and suspects that such food is consumed by persons likely to be illegal immigrants (although that would get me stopped now and again, also). The overriding point, however, is that you don’t need new authority (not that there’s any way of getting it short of amending the constitution in ways that would wreck the Republic) to control these behaviors. That’s the bedrock reason that so much of this drama is pure, hysterical silliness. Local governments can’t excuse themselves from the federal structure and grant themselves authority that only resides at the federal level.
Conservative Constitutionalists get this stuff. High school students get it. Federal courts get it. Chief Dean gets it. It’s basic and central to the federal structure created by the Constitution.
“Those types of violations are as readily enforced against illegal aliens by your local police force as against citizens.”
THAT, NoVA, has been the problem…they haven’t been equally enforced. It’s almost like the police were specifically told “hands off,” prior to the Resolution. When this became apparent, we were told that PWC had a Sanctuary Policy…and that is what led to the current efforts to insist upon the enforcement of the law equally among non-citizens as well as citizens. The Resolution wasn’t redundant…it was necessary.
AW: I doubt that if they saw two drunks driving under the influence, they were citing the citizen and letting the non-citizen walk. I also doubt that there was a “sanctuary” policy. I certainly never saw that posted on the PWC website. If you needed something to remind the police to enforce the laws equally, that’s all you had to do. The resolution could have been a dozen words long. Everyone in the county would have supported it and it wouldn’t threaten to break the bank. But I never heard it said (even here) that the problem was that the police were giving passes to illegals for infractions that were landing citizens in the calaboose.
But my point in response to the post was that Greg shouldn’t be furrowing his brow too much trying to create a legal justification for the police to arrest someone on a status violation. Chief Deane was right about that.
Status violation by itself is not, nor was it, the purpose of the Resolultion. If you look back in the archives here, you’ll see some of the information from whense that “sanctuary county” impression arises.
AWC: You said that “we were told” that there was a Sanctuary Policy. My query is: was there a Sanctuary Policy? If not, who told us that there was one? I don’t think there was any such thing in PW or in any of the other major jurisdictions around here. I don’t read this blog minutely, but I don’t recall any post or comment that specified that the County had adopted a “sanctuary policy.” Usually when I encounter that term, it’s not because the elected officials have opted for an official “Sanctuary Policy,” but it is a kind of incendiary polemic (on the same low level as the “amnesty” foolishness) hurled to indicate resistance to taking over federal duties at the local level.
Frankly, I think the purpose of the resolution (leaving aside the electoral purpose of the contested supervisors) was to appear to be doing something without doing anything. This is particularly important given the constitutional limitations on local governments doing anything in this subject matter. Nonetheless, there are a number of radical liberals who comment here who would love to see the local police be able to pull over my hypothetical guy leaving the Salvadorean take-out place, demand proof of lawful immigration status, and detain him for deportation if he can’t cough it up.