Diplomatic Immunity
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The special privileges and immunities afforded foreign diplomats and consular
representatives assigned to the United States reflect rules developed among the
nations of the world regarding the manner in which civilized international relations
must be conducted. In their dealings with foreign diplomatic and consular personnel,
members shall recognize and show due respect for these privileges and immunities.
At the same time, members should understand that diplomatic immunity is not a
license to break the law or to avoid personal liability. The person claiming diplomatic
immunity from arrest has the burden of proof to establish identity entitling immunity.
202.6 - 2 Definitions
Foreign National
A foreign national is not a United States citizen. The terms “foreign national” and “alien”
may be used interchangeably. Lawful permanent resident aliens, who have a resident
alien registration card, commonly known as a “green card”, must be considered “foreign
nationals” for purposes of notifications. For the purpose of this directive an “illegal alien” is
considered a foreign national. Persons who possess dual citizenship that includes
citizenship in the United States shall not be considered foreign nationals for purposes of
this directive.
Consular Officer
A consular officer is a citizen of a foreign country, who is employed by the foreign
government and authorized to provide assistance to that government’s citizens while they
are in a foreign country. Foreign diplomats shall be considered as consular officers for the
purposes of this directive. Law enforcement officials from foreign countries are generally
not considered as consular officers.
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Honorary Consular Officer
A citizen or lawful permanent resident of the United States who has been authorized
by a foreign government to perform official functions on its behalf in the United States.
Honorary consuls shall be granted the same privileges as a consular officer.
202.6 - 3 Legislative Immunity
202.6 - 3.1 United States Senators and Representatives
The Constitution of the United States provides that senators and representatives shall,
in all cases except treason, felony, and breach of the peace, be privileged from arrest
during their attendance at the session of their respective houses, and in going to and
returning from the same. Breach of the peace as used in the constitutional provision
includes all criminal offenses. Members shall notify Communications Operations if a
United States senator or representative is arrested or detained for any criminal
offense.
202.6 - 3.2 State Senators and Representatives
Under our state constitution all state senators and representatives are privileged from
civil arrest and civil process during sessions of the legislature and for five days before
the commencement and after the termination thereof. Members shall notify
Communications Operations if a state senator or representative is arrested or
detained for any criminal offense.
202.6 - 3.3 Members of the Armed Forces
All officers, warrant officers and enlisted personnel who may be in the actual service of
this state or the United States, in all cases, except for treason, felonies or breach of
the peace, shall be privileged from arrest and imprisonment during the time of such
actual service. Members shall notify Communications Operations if a member of the
armed forces is arrested or detained for any criminal offense.
202.6 - 4 Diplomatic Immunity
202.6 - 4.1 Foreign Diplomats, Ambassadors, Ministers and Legation Attaches
Foreign diplomats, ambassadors, ministers, legation attaches and their families and
official staff, who are not U.S. citizens or permanent residents of the United States are
protected by unlimited immunity from arrest, detention or prosecution with respect to
any civil or criminal offense. Members encountering such persons shall notify
Communications Operations.
202.6 - 4.2 Foreign Diplomats - Consular Officers
Career consular officers and honorary consular officers are official representatives of
foreign governments and are not liable for detention pending trial except in the case of
a grave crime (felony offense that would endanger the public safety) and pursuant to a
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decision by a competent judicial authority. Their immunity from criminal jurisdiction is
limited to acts performed in the exercise of consular functions and is subject to court
determination. Family members of consular officers do not enjoy any privileges and
immunities with respect to arrest, detention or prosecution. However, they should be
accorded appropriate courtesy and respect. Members shall notify Communications
Operations if any of the above persons are arrested or detained for any criminal
offense.
202.6 - 5 Detention of Foreign Diplomats
202.6 - 5.1 Minor Offenses
When a foreign diplomat is stopped for a moving traffic violation, the member should
exercise discretion based on the nature of the violation. Stopping a diplomatic or
consular officer and issuing a traffic citation does not constitute arrest or detention and
is permissible.
202.6 - 5.2 Operating While Intoxicated (OWI)
The following options are available to a member who stops a foreign diplomat for OWI:
1. The member, with the foreign diplomat's permission, may take the foreign
diplomat to the district/precinct station or other suitable location where the
foreign diplomat may recover sufficiently to be able to drive safely;
2. The member may afford the foreign diplomat an opportunity to telephone a
friend or relative and arrange for conveyance;
3. The member may call a taxi for the foreign diplomat; or
4. The member may take the foreign diplomat home if the residence is within the
city of Detroit.
Regardless of the action taken, the member must notify Communications Operations.
When merely stopped for OWI, under no circumstances shall a foreign diplomat, once
his/her identity is established, be handcuffed, subjected to any sobriety test, or
subjected to any unnecessary force.
202.6 - 6 Documentation of Incidents
It is essential that members give careful attention to documentation of incidents
involving individuals with diplomatic or consular immunities for the following reasons:
5. It can never be ascertained with certainty at the investigation stage that the
person involved will continue to enjoy immunity, when their government is
presented with the alleged criminal actions. The Department of State routinely
seeks waivers of immunity for criminal charges;
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6. Criminal immunity expires when the tour of duty of the individual expires, and
prosecution may be possible if the United States subsequently obtains
jurisdiction over the person;
7. Even if the individual may not be prosecuted for the alleged criminal activity, the
Department of State can require them to leave the country under a procedure
known as “persona non grata”;
8. In the case of traffic accidents, it is the policy of the Department of State to
suspend the operator’s license of all foreign mission personnel, if they
determine the driver to be responsible; or
9. Family members of diplomatic and consular officers are not entitled to immunity
but will be treated with appropriate courtesy and respect. Incidents involving
family members of consular officials will be reported to Communications
Operations.
202.6 - 6.1 Reporting Incidents Involving Persons with Diplomatic Privileges
If a member encounters a situation where an individual expresses diplomatic
privileges or immunity, the officer shall notify their immediate supervisor and
Communications Operations.
202.6 - 7 Defection and Requests forAsylum
Defections and requests for political asylum by foreign nationals are highly sensitive
and may affect the relations between a foreign government and the United States. If
an officer is approached by a foreign national who either requests asylum or
expresses a desire to defect to the United States, the officer shall request a supervisor
be dispatched to the scene and take the person into protective custody. It is important
that the officer protect the person from harassment or forceful repatriation. The officer
taking the person into protective custody shall notify Communications Operations, who
shall notify the proper authorities.
202.6 - 8 ForeignNationals
Due to international treaties, it is particularly important that department members
comply with the requirements of this directive. The requirements of international
treaties are equivalent to federal law under the U.S. Constitution.
Department personnel may only inquire about a detainee’s nationality, citizenship, or
country of origin subsequent to an arrest and only for prisoner processing purposes.
The requirements of this directive are only applicable if the detainee alerts or notifies
department personnel that they are a foreign national.
202.6 -8.1 Deaths of Foreign Nationals
If department members become aware of the death of a foreign national, they must
ensure that the nearest consulate of that national's country is notified of the death.
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This will permit the foreign government to make an official record of the death for its
own legal purposes. In addition, it may help ensure that the foreign national's family
and legal heirs, if any, in the foreign country are notified of the death. Notifications
shall also be made to Communications Operations.
202.6 -8.2 Arrests and Detentions of Foreign Nationals
When a known foreign national is taken into custody, the detaining officer must determine
as soon as possible, and without delay, whether consular notification is at the option of the
foreign national or whether it is mandatory under international agreement. In the absence
of other information, assume that the arrestee or detainee is a citizen of the country of
origin on passports or other travel documents. The foreign national shall be advised when
consular notification is made.
- When known foreign nationals are arrested or detained, they must be advised of
their consular rights as outlined in this directive. - For certain countries, the nearest consular officials must be notified of the arrest
or detention of a foreign national, regardless of the detainee’s wishes. - Consular officials are entitled to access to their nationals in detention, and are
entitled to provide consular assistance. - When a guardianship or trusteeship is being considered with respect to a foreign
national who is a minor or incompetent, consular officials must be notified.
Department members shall provide a foreign national with prompt, courteous
notification of the possibility of consular assistance, and prompt, courteous notification
to the foreign national's nearest consular officials so they can provide whatever
consular services they deem appropriate. Officers shall utilize the Consular Advice of
Rights Form located on the department intranet when advising a foreign national of
their consular rights.
202.6 -8.3 Department Notifications
When a known foreign national is arrested, Communications Operations shall be
notified. This requirement does not apply to “Terry stops” unless and until it evolves
into an arrest. A foreign national may use a passport or travel documents to prove
their citizenship.
202.6 -8.4 Consular Notification Process
Consular notifications are separate from any other warnings or notification
requirements such as Miranda Warnings or Implied Consent notifications. In all cases
of consular notification, the detainee shall be advised when such notification occurs.
A consular notification is only considered to have occurred when made by a
department member to the consular official. If a detainee is transferred to 36th District
Court for arraignment and required consular notifications have not been made, this
information shall be communicated to court personnel and documented in a
supplemental police report and include specific information on the number of attempts,
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dates, times, and numbers dialed or locations visited, persons talked to, and the
results of such attempts.
202.6 -8.5 Countries and Jurisdictions that Require Mandatory Notification
When a known foreign national from the following list of countries is arrested, consular
notification shall be made regardless of whether or not the detainee desires such
notification. If the detainee objects to such notification, officers should exercise great
discretion in revealing too much information. The reasons for the detention do not
have to be provided in the initial communication. This information shall not be provided
unless requested specifically by the consular officer, or if the detainee authorizes the
disclosure.
Privacy concerns or the possibility that a foreign national may have a legitimate fear of
persecution or other mistreatment by his/her government may exist in some
mandatory notification cases. The notification requirement shall still be honored.
Under no circumstances should any information indicating that a foreign national may
have applied for asylum in the United States or elsewhere be disclosed to that
person's government.
Different requirements may apply if there is a relevant bilateral agreement with a
specific country. (Some of the bilateral agreements require that the reasons for the
detention be provided upon request.) If a consular official insists that he/she is entitled
to information about an alien that the alien does not want disclosed, the U.S.
Department of State shall be contacted to provide guidance on this issue.
When consular notification is mandatory, the following statement shall be read to the
detainee or arrested person:
“Because of your nationality, we are required to notify your country's
consular representatives here in the United States that you have been
arrested or detained. After your consular officials are notified, they may
call or visit you. You are not required to accept their assistance, but they
may be able to help you obtain legal counsel and may contact your family
and visit you in detention, among other things. We will be notifying your
country's consular officials as soon as possible.”