Policy Text
Policy
421Mountain View Police Department
Mountain View PD Policy Manual
Copyright Lexipol, LLC 2019/12/16, All Rights Reserved.
Published with permission by Mountain View Police
DepartmentArrest or Detention of Foreign Nationals - 1Arrest or Detention of Foreign Nationals
421.1 PURPOSE AND SCOPE
Article 36 of the Vienna Convention on Consular Relations, sets forth certain rights of foreign
nationals from member countries when arrested, detained or imprisoned by law enforcement
officials in this country. This section provides direction to officers when considering a physical
arrest or detention of a foreign national. All foreign service personnel shall be treated with respect
and courtesy, regardless of the level of established immunity. As noted herein, the United States
is a party to several bilateral agreements that obligate authorities to notify the consulate upon the
person's detention, regardless of whether the detained person requests that his/her consulate be
notified. The list of specific countries that the United States is obligated to notify is listed on the
U.S. Department of State http://travel.state.gov/law/consular/consular_5125.html .
421.1.1 DEFINITIONS
Foreign National - Anyone who is not a citizen of the United States (U.S.). A person with dual-
citizenship, U.S. and foreign, is not a foreign national.
Immunity - Refers to various protections and privileges extended to the employees of foreign
governments who are present in the U.S. as official representatives of their home governments.
These privileges are embodied in international law and are intended to ensure the efficient and
effective performance of their official "missions" (i.e., embassies, consulates, etc.) in foreign
countries. Proper respect for the immunity to which an individual is entitled is necessary to ensure
that U.S. diplomatic relations are not jeopardized and to maintain reciprocal treatment of U.S.
personnel abroad. Although immunity may preclude U.S. courts from exercising jurisdiction, it
is not intended to excuse unlawful activity. It is the policy of the U.S. Department of State's
Office of Foreign Missions (OFM) that illegal acts by Foreign Service personnel should always
be pursued through proper channels. Additionally, the host country's right to protect its citizens
supersedes immunity privileges. Peace officers may intervene to the extent necessary to prevent
the endangerment of public safety or the commission of a serious crime, regardless of immunity
claims.
421.2 ARREST OR DETENTION OF FOREIGN NATIONALS
Officers should take appropriate enforcement action for all violations observed, regardless of
claims of diplomatic or consular immunity received from violators. A person shall not, however, be
subjected to in-custody arrest when diplomatic or consular immunity is claimed by the individual
or suspected by the officer, and the officer has verified or reasonably suspects that the claim of
immunity is valid.
421.3 LEVELS OF IMMUNITY
The specific degree of immunity afforded to foreign service personnel within the U.S. is directly
related to their function and position in this country.
Mountain View Police Department
Mountain View PD Policy Manual
Arrest or Detention of Foreign Nationals
Copyright Lexipol, LLC 2019/12/16, All Rights Reserved.
Published with permission by Mountain View Police
DepartmentArrest or Detention of Foreign Nationals - 2421.3.1 DIPLOMATIC AGENTS
Diplomatic agents (e.g., ambassadors and United Nations representatives) are afforded the
highest levels of immunity. They are exempt from arrest or detention and are immune from all
criminal (and most civil) prosecution by the host state. The family members of diplomatic agents
enjoy these same immunities. Currently there are no diplomatic agents permanently assigned to
California; but they do occasionally visit the state.
421.3.2 CONSULAR OFFICERS
Consular officers are the ranking members of consular posts who perform various formal functions
on behalf of their own governments. Typical titles include consul general, consul, and vice consul.
These officials are immune from arrest or detention, except pursuant to a felony warrant. They are
only immune from criminal and civil prosecution arising from official acts. Official acts immunity
must be raised as an affirmative defense in the court jurisdiction, and its validity is determined by
the court. Under this defense, the prohibited act itself must have been performed as an official
function. It is not sufficient that the consular agent was on-duty or in an official capacity at the time
of the violation. The family members of consular officers generally enjoy no immunity, however,
any family member who enjoys a higher level of immunity is issued an identification card by
Department of State (DOS) enumerating any privileges or immunities on the back of the card.
Examples are consular officers and family members from Russia or China.
There are approximately 600 consular officers in California, with most located in Los Angeles,
San Francisco and San Diego.
421.3.3 HONORARY CONSULS
Honorary consuls are part-time employees of the country they represent and are either permanent
residents of the U.S. or U.S. nationals (unlike career consular officers, who are foreign nationals
on temporary assignment to the U.S.). Honorary consuls may be arrested and detained; limited
immunity for official acts may be available as a subsequent defense. Family members have no
immunity. There are less than 100 honorary consuls in California.
421.4 IDENTIFICATION
All diplomatic and consular personnel who are entitled to immunity are registered with the
Department of State and are issued distinctive identification cards by the Department of State
Protocol Office. These cards are the best means of identifying Foreign Service personnel