6-12 Procedure for Consular Notification of Foreign Officials

Policy Type: Local

Responsible Office: Chief of Police, Virginia Commonwealth University Police Department

Initial Policy Approved: 11/13/2013

Current Revision Approved: 5/24/2018

General

The purpose of this directive is to provide guidance to law enforcement officers regarding the various categories of foreign diplomatic and consular personnel, and the privileges and immunities to which they are entitled. In addition, this directive provides instruction and guidance to police personnel regarding the arrest and detention of foreign nationals.

The special privileges and immunities afforded foreign diplomats and consular representatives assigned to the United States reflect rules developed among the nations of the world regarding the manner in which civilized international relations must be conducted. In their dealings with foreign diplomatic and consular personnel, law enforcement officers shall recognize and show due respect for these privileges and immunities. At the same time, police officers should understand that diplomatic immunity is not a license to break the law or to avoid personal liability. Notwithstanding any privileges or immunities to which they may be entitled, foreign diplomats who violate traffic laws shall be cited. Allegations of serious crimes shall be fully investigated and promptly reported to the State Department, and procedurally developed to the maximum permissible extent. In circumstances where public safety is in imminent danger or it is apparent that a serious crime may be committed, police officers may intervene to the extent necessary to halt such activity. The power of police officers to defend themselves or others from personal harm is in no way diminished by the rules of diplomatic immunity.

Accountability Statement

All employees are expected to fully comply with the guidelines and timelines set forth in this written directive. Failure to comply will result in appropriate corrective action. Responsibility rests with the division commander to ensure that any policy violations are investigated and appropriate training, counseling and/or disciplinary action is initiated.

Definitions

FOREIGN NATIONAL – Any person who is not a United States citizen. The terms “foreign national” and “alien” may be used interchangeably. Lawful permanent residents who have a permanent resident card (USCIS I –551), commonly known as a “green card”, must be considered as “foreign nationals” for purposes of consular notification.
CONSULAR OFFICER – A citizen of a foreign country, who is employed by the foreign government and authorized to provide assistance to that government’s citizens while they are in a foreign country.
ARREST – For the sake of this written directive, arrest means full custodial arrest and detention, in any form, excluding an arrestee released on a summons.
DIPLOMATIC IMMUNITY – While a person claiming diplomatic immunity may present any number of identification papers, the only one that is indicative of the level of privilege and immunity is a card issued by the U.S. State Department, Protocol Office. The holder’s level of immunity will be indicated on the card.

Procedures

Identification of Persons Entitled to Diplomatic Privileges and Immunities:
1. It is critical, from a law enforcement officer’s point of view, to identify quickly the category of any person asserting diplomatic privileges or immunity. The following is a list of the types of State Department Identity Cards:
  1. Diplomatic Card – has a blue border for diplomats and their families
  2. Official Card – has a green border for embassy administrative staff and their families
  3. Consular Card – has a red border for consular personnel
2. If the individual claiming immunity does not possess a diplomatic card and the incident involves a criminal offense, officers may detain the individual either at the scene or at a department facility long enough to verify official status. If questions arise about this procedure or if an arrest if necessary for a felony, the officer shall notify their immediate supervisor, who in turn shall notify the on-call lieutenant who will call the appropriate agency to verify the individual’s identify and level of immunity.
3. The cards are 3 ¾ inches by 2 ¼ inches and contain a photograph of the bearer. The bearer’s name appears on the front of the card, along with the bearer’s title, mission, city and state, date of birth, identification number, expiration date and the State Department’s seal. A brief statement of the bearer’s immunity is printed on the reverse side. Space is also provided for the bearer’s signature.
4. A telephone inquiry should promptly be made to the State Department or the United Nations in connection with any serious incident, if an individual claims immunity and cannot provide satisfactory identification, or if the officer has reason to doubt the validity of the card.
5. In questionable situations, the officer at the scene shall notify their immediate supervisor, who shall notify the on-call lieutenant.
6. The on-call lieutenant shall call the appropriate agency for the verification of identity and level of immunity. The on-call lieutenant shall provide the official with a minimum of all of the following information, if possible:
  1. Name
  2. DCS number, if available, located on the official card
  3. Charge
Specific Procedures with Respect to Particular Incidents:
1. If it is established that the individual is entitled to full immunity, the individual may not be arrested or detained. The individual shall not be handcuffed, except in the most extraordinary cases where the public safety is in imminent danger or a serious crime may otherwise be committed. Nevertheless, allegations of serious crimes shall be fully investigated and procedurally followed to the maximum permissible extent.
2. A police officer should never hesitate to intervene in a traffic violation, which the officer has observed, even if immunity ultimately bars any further action at the scene.
3. The officer should always stop persons committing moving violations, issue a citation, if appropriate, and report the incident in accordance with normal departmental procedures.
4. Stopping a diplomatic or consular official and issuing a traffic citation does not constitute arrest or detention, and is permissible, although the individual may not be required to sign the citation.
5. Upon exhibiting proof of diplomatic immunity, individuals shall be released after being stopped for a misdemeanor traffic violation.
6. Sobriety tests may be offered to persons with full immunity, but such persons may not be compelled to take the test.
7. The property of any individual enjoying full immunity including their vehicle may not be searched or seized. The vehicle may not be impounded but may be towed out of the way if obstructing traffic or endangering public safety. Vehicles bearing diplomatic registration plates may be towed only if necessary to prevent serious obstruction of traffic flow. When possible before towing, there shall be attempts made to contact the registered owner of the vehicle or a representative of the applicable embassy or consulate to seek voluntary removal of the vehicle. When towed, the vehicle will be moved to the closest available legal parking space.
8. If a police officer determines that an individual with full immunity is intoxicated or impaired, the officer should not permit the individual to drive.
9. The officer shall contact the United States State Department Office of Security at (202) 647-7277 to seek guidance on all of the following:
  1. Verifying the individual identity
  2. Seeking guidance/instructions as to how to handle the individual
  3. Seeking assistance in transporting the individual
10. The officer or the individual may summon a friend or relative to drive or the officer may call for a taxi.
11. If the vehicle of the individual with full immunity is suspected of being stolen or used in the commission of a crime, the occupants of the vehicle may be required to present vehicle documentation to permit police verification of the vehicle’s status. Should the vehicle prove to be stolen or used in the commission of a crime, the normal inviolability of the vehicle is temporarily suspended, and a normal search of the vehicle and its seizure are permissible, as appropriate.
Steps to follow when a Foreign National is Arrested or Detained:
1. When an officer either arrests or detains a foreign national, the officer shall immediately identify the suspect’s country. In the absence of other documented information, the officer shall assume that the country listed on the passport or other travel document is the official country of the foreign national. The foreign national shall be read the rights from the Rights Waiver Form. The ATT language interpreter may be used, if needed.
2. If the foreign national’s country is not listed on the Mandatory Notification List Card, the officer shall take the following steps:
  1. Offer to notify the foreign national’s consular officials of the arrest/detention. Use the Consular Notification and Access Reference Card, Statement One, or contact the on-call lieutenant, to make the notification.
  2. If the foreign national indicates that consular notification be given, the officer shall use the chain of command to notify the on-call lieutenant to make the notification.
3. If the foreign national’s country is on the list of mandatory notification countries, the officer shall take the following actions:
  1. Inform the suspect that consular notification is required. Contact the on-call lieutenant in their absence, through the chain of command, to notify the nearest consular official of the designated country of the suspect’s arrest/detention as soon as practical, preferably before the suspect is taken to lock-up.
  2. The notification must be made regardless of whether or not the foreign national wishes the officer to do so. Officers may use discretion in deciding how much information should be released to the consular officials. Under no circumstances should the fact that a foreign national is seeking asylum, be relayed to the consulate by any department member.
  3. The officer shall use the Consular Notification and Access Reference Card, Statement Two or the translations for selected languages, which are maintained in the Patrol Division.
  4. The Patrol Division shall maintain an instructional manual regarding “Consular Notification and Access Guidelines.” A telephone contact or fax for notifying consular officers shall be used for the notifications and are also included in the manual (https://travel.state.gov/content/dam/travel/CNAtrainingresources/CNA%20Manual%205th%20Edition_September%202018.pdf).
  5. State Department information may be accessed from: https://travel.state.gov/content/travel/en/legal/travel-legal-considerations/Info-for-Lawyers-Judges.html
  6. Required Information for Notification:
    1. All of the below information is the minimum requested for an individual before consular notification is made:
      1. Name
      2. Date of Birth
      3. Place of Birth
      4. Passport Number
      5. Date of Passport Issuance
      6. Place of Passport Issuance
      7. Name of Country
        
        NOTE: The Vienna Convention on Consular Relations (VCCR) requires that the foreign national’s consulate be notified “without delay”, of the right to access the foreign national and provide consular assistance. Therefore, a notification of the location of the detention and the circumstances surrounding the arrest shall occur, as soon as reasonably possible. In the case of a custodial arrest followed by a detention, the foreign national shall be advised of the possibility of a consular notification before they have been placed in the Detention Section.
  7. The Patrol Division will maintain a log of all consular notifications made by the department. When a notification is made, the log should indicate the following information:
    1. That the foreign national was informed of the consular notification
    2. The date and time
    3. Whether or not the suspect requested consular officials to be notified
    4. The name and code number of the arresting officer
    5. The name of the on-call lieutenant who made the notification, and
    6. If any documentation of the contact is available, i.e. faxed information, et cetera, it should be saved and attached to the logbook, if appropriate. Officers should also maintain their own documentation.
4. A consular official shall be notified whenever a guardianship or trusteeship is being considered with respect to a foreign national who is a minor or who is incompetent.
5. A consular official shall be notified whenever any department member becomes aware of the death of a foreign national. While the VCCR does not specifically mention serious injuries, U.S. State Department guidance encourages law enforcement officials to notify consular officers if a foreign national is in such a critical condition (e.g. coma, life-support, ICU, etc.) that notification would be in the national’s best interest.
Documentation of Incidents:
1. It is essential that police officers give careful attention to documentation of incidents involving individuals with diplomatic or consular privileges and immunities for the following reasons:
  1. It can never be ascertained with certainty at the investigation stage that the person involved will continue to enjoy immunity when their government is confronted with the alleged criminal actions. The State Department routinely seeks waivers of immunity for criminal charges.
  2. Criminal immunity expires when the tour of duty of the individual expires, and prosecution may be possible if the United States subsequently obtains jurisdiction over the person.
  3. Even if the individual may not be prosecuted for the alleged criminal activity, the State Department can require him/her to leave the country under a procedure known as “persona non grata”.
  4. In the case of traffic incidents, it is the policy of the State Department to suspend the operator’s license of all foreign mission personnel, if they determine the driver to be responsible.
Reporting Incidents Involving Persons with Diplomatic Privileges and Immunity:
1. If a police officer encounters a situation where an individual expresses diplomatic privileges or immunity, the officer shall notify their immediate supervisor, who in turn shall notify, through the chain of command, the on-call lieutenant.
2. Based on the nature of the incident, the on-call lieutenant will determine if an IBR should be taken or if any further action(s) should be taken and how much information should be released to the consular officials if it is necessary to detain the individual. The on-call lieutenant shall arrange for the necessary notification to the State Department.
3. An IBR is not automatically required, but should be filed by the officer if the incident meets the criteria for filing such reports. If an IBR is not warranted, the officer shall file an administrative report in RMS.

Forms

Rights Waiver Form
Incident Based Report
Consular Notification and Access Manual

Revision History

This policy supersedes the following archived policies:

11/13/2013 - 6-12 Procedures for Consular Notification of Foreign Nationals