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Diplomatic Immunity

The concept of immunity began with ancient tribes. Ancient Greek and Roman governments understood that in order for important information to flow freely, messengers bearing that information would have to be protected. The messengers from rival tribes were allowed to travel with impunity; killing a messenger was considered a breach of honor.

The concept of immunity between nations’ representatives is still respected. The concept was codified as international law in the Vienna Convention on Diplomatic Relations in 1961. Diplomatic Immunity is the principle of international law which establishes that certain foreign government officials are not subject to the jurisdiction of local courts or other authorities.

There are over 100,000 representatives of foreign governments in the United States, most of whom live and work in the Washington, DC and New York City area. However a large number are assigned to major cities throughout the country. Almost all of the foreign representatives and their families are free to travel anywhere in the United States for business or pleasure so it is plausible that any law officer in the country may encounter a person claiming diplomatic immunity.

Many law officers do not fully understand diplomatic immunity so they may be inclined to be overly generous in its application. Officers are obligated under law to recognize and respect a person’s immunity status but are not expected to ignore or condone the commission of crimes.

The US Department of State administers diplomatic immunity issues. It recognizes two levels of immunity afforded to foreigns based on their job and status. Diplomatic agents (ambassadors), their diplomatic staff and family (spouses and children until the age of 21) are afforded full criminal immunity.

Full criminal immunity is more than immunity from prosecution. It means the person can not be detained, searched or arrested, and can not be required to give evidence as a witness. Service staff members have limited criminal immunity. The service staff, including chauffeurs and domestic help, can be detained, arrested and prosecuted for criminal acts. Service staff can be required to give evidence as a witness and their persons and property can be searched. Family of the service staff has no immunity.

If summoned to the scene of a criminal investigation involving a person who claims diplomatic immunity, an officer should first attempt to verify the status of the suspect with the US Department of State (or with the US Mission to the United Nations). Once the status has been verified the officer should note information necessary for the report and the person must be released.

A protected person cannot be handcuffed unless he is presenting an immediate threat to safety. The person may not be detained or arrested. If the status cannot be verified the officer will inform the person that he will be detained until the immunity status can be confirmed.

Once the report is completed it should be faxed or mailed as soon as possible to the US Department of State in Washington, DC or the US Mission to the UN in New York. Reports of serious incidents may be made by phone (24/7) to the Command Center of the Bureau of Diplomatic Security, Department of State at (202) 647-7277.

Motor vehicle stops and summons are not considered detentions or arrests. Officers may issue appropriate citations or warnings to drivers having diplomatic immunity for any moving violation. Diplomats are not required to sign the citation and can not be arrested for refusal to sign.

Officers may want to notify a supervisor of their interaction with a protected person but a supervisor is not required at the scene. A copy of any written enforcement along with a brief report should be forwarded to the US Department of State as soon as possible.

In a serious traffic case (in the instance of a DWI or accident with injury) immediate telephonic communication with the US Department of State, available at (202) 647-4000, is recommended. If a diplomat is thought to be intoxicated the officer may request but can not require the taking of field sobriety testing. Whether the test is taken or not, if the officer reasonably believes the individual is too impaired to drive, the officer should not permit individual to drive (even in the case of diplomatic agents). Although it is not legally required, the officer should contact a supervisor.

The officer should not permit the individual to drive but a physical arrest is not allowed. A test to measure blood-alcohol content may be offered but the diplomat is not legally obligated to submit. The officer can issue a summons for DWI and any other related traffic offenses. The vehicle is not subject to search. It cannot be impounded or “booted” though it may be towed the short distance necessary to allow the safe flow of traffic.

The United States has a large number of citizens serving diplomatic missions in foreign countries. Many of these countries have judicial systems that are not as protective of individuals and rights as our own. It is not an exaggeration to say that an officer handling a foreign diplomat may have a direct effect on treatment of American citizens abroad.

Most foreign diplomats are responsible citizens from their home countries who abide by the law. When they do break the law, US law officers must follow the proper protocol in handling the situation.

Detective Joseph Petrocelli has been in law enforcement for 18 years and currently serves as the training coordinator for the Passaic County, NJ Sheriff’s Department. He is the co-author of Anatomy of a Motor Vehicle Stop.

Published in Law and Order, May 2005

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