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ACLU Urges Virginia Police to Ignore Attorney General's Immigration Opinion

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In this Nov. 3, 2009, photo, Ken Cuccinelli waves at his victory party in Richmond after being elected state attorney general. (AP Photo)

The American Civil Liberties Union of Virginia is urging the state police to ignore Attorney General Kenneth Cuccinelli's ruling that police can ask people about their immigration status during routine stops.

The civil rights group argued that Cuccinelli's opinion lacks a legal foundation and presents constitutional and public policy problems.

Cuccinelli issued the advisory opinion Monday at the request of state Delegate Robert G. Marshall. Rebecca K. Glenberg, legal director of the ACLU of Virginia, followed up with a letter to Virginia's police chiefs Thursday saying the opinion is legally flawed and should be disregarded.

But so far, Virginia police are ignoring the ACLU, said Dana Schrad, executive director of the Virginia Association of Chiefs of Police.

"In terms of practice and policy, it varies across the state depending on the priorities of the locality," Schrad said. In some localities, police generally don't ask about immigration status because doing so could have "a chilling effect" on the immigrant community's cooperation with law enforcement, she said. In others, officers inquire.

"Virginia code is silent and does not prohibit law enforcement from asking about immigration status," Schrad said. "We have to give officers a certain amount of discretion in the field. We don't expect any of this will change procedures."

Schrad emphasized that the attorney general's opinion was not requested by law enforcement and said she received no questions from the association's members about the issue before or after the opinion's release.

"It has been clearly understood by law enforcement what their authority is," she said.

Marshall, the legislator who asked for the opinion, represents a county whose crackdowns on its large immigrant population drew national attention in 2007 and 2008. Last week, the chairman of Prince William County's board of supervisors established a political action committee to press for legislation in Virginia similar to the Arizona law.

Glenberg said in her letter to the police chiefs that Cuccinelli's opinion failed to acknowledge that a federal judge recently blocked the Arizona law's key provisions, including the requirement that officers inquire about immigration status when they have reason to believe a person they've stopped may be in the country illegally.

She also said that because most police officers have not been trained on immigration law enforcement, which is primarily a federal responsibility, allowing them to question people about their status "is an invitation for racial profiling and potential Equal Protection violations."

Cuccinelli said in the opinion that police can query people connection with criminal matters only, not civil infractions like zoning violations unless the jurisdiction has entered an agreement with U.S. Immigration and Customs Enforcement.

The attorney general's office did not immediately respond to a message seeking comment on the ACLU letter.

The Associated Press contributed to this report.