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US IMMIGRATION UPDATES
IMMIGRATION LAW / NOV 2006 |
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New Laws Granting Local Law Enforcement Authority to Enforce Immigration Laws May Spur Lawsuits |
By Attorneys Bruce A. Coane and James P. McCollom, Jr.
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A hotly debated issue around the country is whether local law enforcement agencies should have authority to enforce U.S. immigration laws. Such authority would give local law enforcement the right to question people regarding their immigration status. |
| Bruce A. Coane |
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Many commentators have voiced concerned that such laws will in fact
promote crime because non-citizens will be afraid to report
criminals. A secondary issue that has not been widely discussed is
the probable consequence of such a law that people who have a
“foreign appearance” might be falsely arrested.
Imagine, for example, that an individual who has an Asian appearance
is stopped by the police in a locality where there is such a law. It
is possible that in that locality, the law enforcement officer might
ask such an individual about his or her citizenship status solely
because that individual has an Asian appearance.
It is also possible that an individual with an Asian appearance
might then be arrested if the officer believes that the individual
is violating U.S. immigration laws. The officer might fail to
conduct a proper investigation.
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The local law enforcement officer might make a mistake and arrest
the individual with the Asian appearance not realizing that the
individual is actually a U.S. citizen or a lawful permanent
resident. It is even possible that the officer might arrest a
foreign citizen who has lawful status in the United States.
Obviously, one problem with such a law is that it might encourage
the law enforcement officer to make a decision based on race. That
is, any individual with an Asian appearance might automatically
become a suspect.
The other problem may be that the local law enforcement officer does
not have expertise regarding U.S. immigration laws although he or
she might have been trained to attempt to accomplish the task.
If the local law enforcement officer arrests a person with an Asian
appearance for a violation of U.S. immigration laws and it turns out
that the person arrested was a U.S. citizen, then it is possible
that a Court might conclude that such an arrest constituted
negligence or false imprisonment.
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A U.S. citizen, in that instance, might then file a lawsuit against
the law enforcement authority for negligence or false imprisonment.
In all lawsuits against a government entity, the plaintiff must
first demonstrate that the government has enacted a law allowing a
plaintiff to sue the government. That is, normally an individual may
not sue the government because the government is immune from suit.
If the law enforcement agency is negligent or commits the
intentional tort of false imprisonment, then a plaintiff may be able
to file a lawsuit under local state law, or possibly, the Federal
Tort Claims Act.
It is thus possible that one effect of new laws granting such broad
power to local law enforcement officers might be that individuals
who are “foreign-looking” might be unjustly arrested. As a result,
these individuals may now be able to successfully sue the
government.
Bruce A. Coane is Board Certified in Immigration and Nationality
Law by the Texas Board of Legal Specialization. The law firm of
Coane & Associates has offices at 407 Lincoln Road, Suite 306, Miami
Beach, Florida 33139, Tel. (786) 457-VISA (8472). The law firm
website is www.coane.com. The law firm email is
immigrantlaw@aol.com. James P. McCollom, Jr. is an associate
attorney at the firm
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