ACLU to Virginia police: Ignore Cuccinelli's opinion

RICHMOND

Officials with the American Civil Liberties Union of Virginia are telling sheriffs and police chiefs across the state to disregard what they consider a "legally faulty" opinion from Attorney General Ken Cuccinelli that advises police they can check the immigration status of people they've stopped for other causes.

Cuccinelli's opinion, state ACLU legal director Rebecca K. Glenberg wrote in a letter Thursday, is "ambiguous, rests on an unclear legal foundation, and presents multiple constitutional and public policy problems."

In addition, she wrote, it "does not provide a sound basis for action by law enforcement agencies."

The attorney general produced the opinion at the request of state Del. Bob Marshall, a Republican from Prince William County, where illegal immigration has been a contentious issue for several years.

In it, Cuccinelli contends that law enforcement officers have powers similar to those granted to Arizona authorities in a new law requiring them to check whether a person is legally in the country when they've been detained, if officers have a reasonable suspicion the person is in the country illegally.

"Virginia law enforcement officers have the authority to make the same inquiries as those contemplated by the new Arizona law," the attorney general's opinion states. "So long as the officers have the requisite level of suspicion to believe that a violation of the law has occurred, the officers may detain and briefly question a person they suspect has committed a federal crime."

A spokesman for Cuccinelli declined to comment on the ACLU letter.

The reasoning in Cuccinelli's opinion bears similarities to advice then-Attorney General Bob McDonnell gave in 2007 to members of the legislature who asked whether Virginia police can detain and arrest people for violations of federal immigration law.

Now governor, McDonnell spoke in support of Cuccinelli's opinion this week and suggested that his administration is working to secure federal approval for the Virginia State Police to perform immigration law functions.

Several local police departments and sheriff's offices in Virginia already have that ability, and Marshall has asked McDonnell in writing to "direct all appropriate law enforcement officers" in the state to "implement the policies" expressed by Cuccinelli.

Some police officials said they plan to continue to addressing illegal immigration as they did before Cuccinelli's opinion - check status when someone is taken into custody as required by state law and use discretion about other inquiries.

"We have no mandate and we have no prohibition, so that does give us some leeway," said Dana Schrad, executive director of the Virginia Association of Chiefs of Police.

Schrad said no police chiefs have called her about making policy changes since Cuccinelli's legal guidance was made public.

Virginia Beach rules advise officers not to ask crime victims and witnesses about their status except in limited circumstances involving serious crimes.

Virginia immigration statutes have been strengthened about as much as they can be without a change in federal law and in the convoluted relationship between states and U.S. Immigration and Customs Enforcement, said Beach Sheriff Ken Stolle, a former state senator.

"It's really a ridiculous issue," he said about pressing local authorities to check immigration status. "Why would a police officer be asking that? And what does he do if they refuse to answer?"

Julian Walker, (804) 697-1564, julian.walker@pilotonline.com