Appeals Court Rules Favorably on State Trooper Questioning of Illegal Aliens

By Jessica M. Vaughan on February 13, 2010

On February 4, a federal appeals court ruled that a Rhode Island state trooper had acted reasonably when questioning foreign nationals he encountered on a traffic stop, and in contacting Immigration and Customs Enforcement (ICE) upon discovering that they were illegal aliens en route to work. The court rejected arguments from the ACLU, which claimed that asking aliens about their immigration status is unlawful discrimination, and that the call to ICE had unreasonably prolonged the traffic stop. As the Providence Journal editorialized, this decision is "a victory for common sense and the rule of law."

Here's what happened: On July 11, 2006, state trooper Thomas Chabot pulled over a 15-passenger van on I-95 south of Providence for failure to signal when changing lanes, an offense that appears frequently in his ticket book, according to a member of his legal team. The driver of the van produced a valid license, registration, and insurance, and said he was taking the passengers to work polishing jewelry in Westerly, RI. Officer Chabot asked the 14 passengers for identification. He later testified that this is standard procedure and that 99 percent of the passengers he encounters can supply it. In this case, one person offered a gym membership card, one offered a non-driver ID, and two presented cards issued by the Guatemalan consulate. None had legitimate identification documents, and they admitted to being illegal aliens.

Chabot conducted a standard background check on the driver, which came back clean. He also contacted ICE's Law Enforcement Support Center. They told Chabot to wait for a call back from the local ICE field office. Three minutes later, the Providence ICE office called back and asked Chabot to escort the van to their office so they could take custody. All 14 passengers were arrested for immigration violations.

This is how the system is supposed to work. ICE gives the most attention to criminal aliens, and it depends on local law enforcement officers to tell them where they are and what they are doing. Most local officers understand that immigration laws are worth enforcing and believe that foreign nationals who have broken laws should face the consequences.

But to the Rhode Island chapter of the ACLU, this was a blatant case of racial profiling and unlawful discrimination. It filed a lawsuit on behalf of the driver and 10 of the passengers (the other four apparently just went home to Guatemala). The ACLU maintained that the call to ICE unlawfully prolonged the traffic stop and was based merely on appearance and the fact that the passengers did not speak English. They thought that Chabot should be held personally liable for this "racist" act.

U.S. District Judge Mary Lisi and the panel of three U.S. Court of Appeals judges disagreed. They cited the 2005 Supreme Court decision in Muehler v. Mena, "that a police officer does not need independent reasonable suspicion to question an individual about her immigration status" in the context of a legitimate law enforcement action. Before he called ICE, Chabot already knew that the passengers were going to work, had no appropriate identification (and notably mentioned that the consular ID card would reasonably provoke suspicion), and spoke little English, and so it was therefore reasonable for him to look into potential criminal activity on the part of both driver and passengers. The judges felt that these facts gave the officer not only "reasonable suspicion" to ask questions about immigration status, but also "probable cause" to escort the group to ICE, and that he therefore should be immune from liability for his actions.

According to Michael Hethmon, general counsel of the Immigration Reform Law Institute, this case is significant because the courts emphasized the role of the alien registration laws in establishing reasonable suspicion to continue questioning and probable cause to detain. (Under U.S. law aliens, unlike U.S. citizens, are required to carry evidence of their lawful status at all times and to present it when asked by an official.) Says Hethmon: "Alien registration laws are a rule-of-law antidote to racial profiling. Law enforcement officers can rely on documents (or the absence of documents) and not 'articulable facts' such as language, appearance or experience when deciding how to proceed in questioning an alien."

In his concurring opinion, the chief judge on the appeals panel repeated this and other concepts emphasized in an amicus brief written by Hethmon and IRLI staff lawyer Garrett Roe on behalf of the National Fraternal Order of Police.

This lawsuit is just one play in a nationwide offensive by anti-enforcement advocacy groups, and now Eric Holder's Department of Justice, against officers who dare to notify ICE when they run across foreign nationals who have broken laws – mainly state and local laws, not just immigration laws. At a conference at Harvard Law School last week, Monica Ramirez, a young ex-ACLU immigrants rights lawyer who now works in the Department of Justice Civil Rights Division, announced that they are hiring 62 new attorneys this year and perhaps 100 more next year. Their mission, as she described it, is to go after the epidemic of racial profiling, anti-immigrant discrimination, and hate crimes she claims is sweeping the nation.

The outcome of this case is reassuring, but local law enforcement agencies need to be prepared for predatory legal action such as this one. They should be mindful of the appropriate sequence of questioning when aliens are involved, as well as how to use the resources provided by ICE. If they do get sued, IRLI has the expertise and enthusiasm to assist (if not the legions of staff lawyers). These and other topics will be addressed in the new CIS/LEAPS-TV web program series on immigration law enforcement and local policing.