Could South Carolina police independently arrest people for federal immigration crimes in 2002?

Plain-English summary

A South Carolina legislator asked whether state and local officers could independently enforce federal immigration law. In March 2002, the AG concluded that South Carolina law then gave them no authority to arrest or detain people for violations of federal immigration criminal provisions. He said the General Assembly would have to enact such authority.

The opinion distinguished federal preemption from authority under state law. It read federal law as allowing some state participation in enforcing criminal immigration provisions if state law authorized it, but found no South Carolina enactment giving officers that power. The letter also distinguished civil immigration violations from criminal ones in its discussion of other authorities. This is a historical opinion about the law in 2002.

Currency note

This opinion was issued in 2002. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Historical summary

State and local officers

The AG said South Carolina officers’ usual arrest powers concerned the state’s criminal laws. He found no enabling provision for independent enforcement of federal immigration crimes.

Legislators

The opinion said the General Assembly would need to grant the relevant arrest or detention authority before state or local officers could exercise it under South Carolina law.

Common questions

Did the AG say federal law itself barred every state immigration arrest? A: No. He discussed federal authority that permitted some criminal-law enforcement where state law authorized it, then found no South Carolina authorization.

Could South Carolina police independently enforce federal immigration crimes under then-current state law? A: The AG said no; legislation was needed.

Background and statutory framework

The AG reviewed federal immigration provisions and other courts’ discussion of state participation. He then examined South Carolina statutes giving officers authority over the state’s criminal laws, including Section 17-13-30, § 23-1-60 and § 23-6-140, and found no parallel authority for federal immigration offenses.

Citations and references

• Section 17-13-30, § 23-1-60 and § 23-6-140: state-law arrest and enforcement powers cited by the AG.

Official title

Whether South Carolina’s state and local law enforcement officers possess authority independently to enforce federal law concerning illegal immigrants.

Requester

The Honorable Lanny E. Littlejohn, Member, House of Representatives

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/march-6-2002/
• Original PDF: https://www.scag.gov/wp-content/uploads/2013/04/02march6littlejohn.pdf

Original opinion text

The State of South Carolina

OFFICE OF THE ATTORNEY GENERAL
CHARLIE CONDON
ATTORNEY GENERAL

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March 6, 2002

The Honorable Lanny E. Littlejohn
Member, House of Representatives
402B Blatt Building
Columbia, South Carolina 29211
Dear Representative Littlejohn:
You have asked for an opinion as to whether South Carolina's state and local law enforcement officers possess authority independently to enforce federal law concerning illegal immigrants. It is our opinion that pursuant to current South Carolina law, state and local law enforcement officers do not possess authority to enforce federal immigration law. Any authority to empower state and local law enforcement officers to arrest and detain individuals for violation of the criminal provisions of federal immigration law would have to be provided by enactment of the General Assembly. Law I Analysis

A number of authorities support the conclusion that the Immigration and Naturalization Act, 8 U.S.C. ch. 12 (INA), does not preempt state and local law enforcement officers from enforcing the criminal provisions of federal immigration law so long as such enforcement is authorized by the law of that particular state. This question was exhaustively addressed in a recent opinion of the Attorney General ofNew York. See, 2000 WL 420372 (N.Y.A.G. March 21, 2000). There, the New York Attorney General noted that Section 1252c of the INA authorizes state and local law enforcement officers, to the extent permitted by state law, to arrest illegal aliens previously convicted of a felony and who have been deported and left the country after conviction. That provision further states that such arrests may be made only after the local official confirms the individual's status with INS (Immigration and Naturalization Service) and only for the time necessary to take the individual into custody. The New York Attorney General's opinion also referenced Section 1324(c) which authorizes "all other [law enforcement] officers whose duty it is to enforce criminal laws ''to arrest persons for violating subsection (a) of that section, which imposes criminal penalties for transporting and harboring illegal aliens.

REMBERT C. DENNIS BUILDING

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POST OFFICE Box 11549

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COLUMBIA,

s.c. 29211-1549

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TELEPHONE: 803-734-3970

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FACSIMILE: 803-253-6283

The Honorable Lanny E. Littlejohn
Page2
March 6, 2002
The New York Attorney General's opinion noted that while these are the only two provisions of federal immigration law which specifically authorize state and local criminal enforcement, courts have concluded that enforcement of other criminal provisions of the federal immigration laws is not preemptea-: HSee, Gonzalez v. City of Peori~ 722 F .2d 468, 472-475 (9th Cir. 1983), overruled in part on other grounds, Rodgers-Durgin v. De la Vin~ 199 F.3d 1037 (9th Cir. 1999) [nothing in federal law preempts state and local enforcement of federal immigration laws' criminal provisions); United States v. Vasquez-Alvarez, 176 F.3d 1294, 1297 (10th Cir. 1999), cert. den. 120 S.Ct. 264 (1999). The New York Attorney General therefore concluded that while civil violations of the federal immigration laws would not constitute a basis for an arrest, "the INA does not preempt the authority of state and local officials to make warrantless arrests for criminal violations of the INA, insofar as such activity is authorized by state and local laws." (emphasis added). Thus, the question becomes whether South Carolina law currently authorizes our state and local law enforcement officers to arrest for violations of federal law. Typically, South Carolina state and local officers are authorized to arrest for violations of the "criminal laws of this State." See,~ S.C. Code Ann. Section 17-13-30 (sheriffs and deputy sheriffs may arrest without warrant any and all persons who, within their view, violate any of the criminal laws of this State); § 23-1-60 (constables appointed to assist in the detection of crime and the enforcement of any criminal laws of this State); § 23-6-140 (officers and troopers shall have the same power and authority held by deputy sheriffs for the enforcement of the criminal laws of the State);§ 24-21-280 (a probation agent has the power and authority to enforce the criminal laws of the State.) Based upon these statutes, this Office has consistently concluded that state or local law enforcement officers do not possess the authority to enforce federal law. In an opinion dated September 13, 1971, we concluded that "a State or local officer is an agent of the State, county or municipality by which he is employed. He is not empowered to enforce federal law." And, in Op. No .. 2066 (June 10, 1966), we stated:
[i]t is therefore apparent, in the opinion of this office that a city police officer or deputy sheriff would not be authorized to arrest a person for failure to have a draft card in his personal possession, the offense being one solely against the laws of the United States. He of course could file a compliant with the proper federal authorities, who would then proceed at their discretion. The General Assembly has enacted legislation which authorizes the enforcement of state criminal laws by federal law enforcement officers. See, § 23-1-212. However, no such

The Honorable Lanny E. Littlejohn
Page 3
March 6, 2002
enabling authority allowing state and local officers to enforce federal criminal laws is apparent.
·Conclusion

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Accordingly, based upon the foregoing authorities, it is our opinion that legislation is necessary to provide South Carolina law enforcement officers with the authority to make arrests or detain individuals for violations of the criminal provisions of the federal immigration laws. Very truly yours,

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Assistant Deputy Attorney General

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