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Departments : Point of Law

Arresting Foreign Nationals

Special guidelines often apply when taking foreigners into custody.

April 01, 2005  |  by Devallis Rutledge - Also by this author

Vienna Convention on
Diplomatic Relations

Another treaty to which the United States is a signatory (since 1972) provides for diplomatic immunity. The diplomatic convention is intended to secure uniform, reciprocal protection of national sovereignty through specified immunities for diplomatic agents from criminal and civil process.

There are different levels of immunities. Some agents and their family members are absolutely immune to detention, arrest, prosecution, or search (person, vehicle, and residence). Others are immune to minor offenses and some have immunity only for their official acts.

To assist in identifying diplomats and determining who has what kind of immunity, the State Department issues identification cards to all diplomatic personnel with a brief statement of their particular immunities printed on the back. If you should confront a person who asserts a diplomatic immunity, you should request diplomatic identification and check the reverse of the card. In case of questions you may telephone the State Department at 202-647-7277 before deciding whether an individual is subject to arrest or search.

Registration, Plates, and Licenses

Diplomats are not required to have a state-issued driver’s license, vehicle registration, or license plates. Instead, the State Department issues these items and designates the particular level of diplomatic use of vehicles with license plate prefixes or suffixes (“D” for diplomats, “C” for consuls, “S” for administrative staff, and “A” for international organizations such as high-level United Nations officials). But the license plate should not be relied upon as proof of the status of the driver or passengers in lieu of their official identification cards.

Exceptions

Nothing in the Vienna Convention prevents police officers from taking necessary measures to protect public safety. Although it would be rare for an immune official to create an incident that might get him or her expelled or prosecuted, officers should remember that diplomatic immunity is not a barrier to protection of public safety. In exigent circumstances, take all reasonable and necessary steps to secure your safety and the safety of others, and consider issues of immunity only after the situation is under control. An impaired driver, for example, need not be permitted to drive away from a stop, but should be driven by unimpaired staff or sent home by taxi.

Also, since sovereign immunity belongs to the nation, rather than the individual diplomat, it can be waived by the sending nation, thereby making the individual subject to prosecution. Therefore, in any case where a person subject to diplomatic immunity is suspected of a serious or violent crime, appropriate reports should be made and available evidence preserved. It is the stated policy of the State Department to request a waiver of immunity in every case where the prosecutor advises that charges would be pursued except for diplomatic immunity.

Traffic citations may be issued to members of the diplomatic and consular corps. The State Department should be notified of any such citations. And because that department issues the driver’s license it can suspend the license upon the accumulation of too many moving violation “points” or for driving under the influence.

It’s the Law

A general guideline for meeting obligations and respecting immunities under these two Vienna Conventions is to treat foreign nationals and diplomats as you would want Americans to be treated abroad under similar circumstances. Remember that compliance with treaties is not an option—it’s the law.

Devallis Rutledge, a former police officer and veteran prosecutor, is Special Counsel to the Los Angeles County District Attorney.

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