Fair and Impartial Policing

Vermont Department of Motor Vehicles Enforcement and Safety Division

I. Purpose

The purpose of this policy is to require that all department members conduct policing in a fair and impartial manner, to clarify the circumstances in which officers can consider personal characteristics, or immigration status, when making law enforcement decisions, and to reinforce processes and procedures that enable us to provide services and enforce laws in an equitable and impartial way.

II. Policy

Employees of this department are prohibited from engaging in biased policing.  This means no member of this department shall take actions based on any personal characteristics, or immigration status, except as described below, in the services our employees provide to the community in connection with our law enforcement activities. 

Because partnership with Vermont residents is the most effective way to ensure public safety, maintaining the public’s trust is a primary concern. To secure this trust personal characteristics, or immigration status should have no adverse bearing on an individual’s treatment in department custody. Enforcement of civil immigration law is a federal responsibility and this department should not engage in such enforcement except as otherwise outlined in this policy. Vermont residents are more likely to engage with law enforcement and other officials by reporting emergencies, crimes, and acting as witnesses; to participate in economic activity, and to be engaged in civic life if they can be assured that they will not be singled out for scrutiny on the basis of personal characteristics or immigration status. 

To achieve these objectives this department will implement a combination of best practices including but not limited to; hiring, in-service training, policy development, supervision, reporting, and investigative processes, appropriate discipline, and community outreach/partnerships.

III. Definitions

1. “Biased policing”: is conduct by law enforcement officers motivated by an individual’s actual or perceived or self-identified personal characteristics.
2. “Personal characteristics”: May include but is not limited to actual or perceived identity, race, ethnicity, national origin, color, gender, sexual orientation, gender identity, marital status, mental or physical disability, age, religion, and socio-economic status.
3. “Immigration status”:  Generally, refers to the legal rights, if any, of a non-citizen to enter or remain in this country. Examples include, without limitation, “lawful permanent resident,” “temporary worker,” “refugee,” and “undocumented.” 
4. “Reasonable suspicion”: Suspicion, for which an officer can articulate factual reasons, does not need to rise to the level of probable cause.
5. “Probable cause”: Facts or circumstances that would lead a reasonable person to believe that a crime has been committed, or is being committed, or is about to occur.
6. “Member” or “employee”: any employee employed by [agency/department], regardless of their assigned tasks or duties.
7. “Federal immigration authorities”: federal agencies, departments, or employees or contractors thereof, tasked with enforcement of immigration law and border entry, including without limitation, the Department of Homeland Security (DHS), Immigration Control and Enforcement (ICE), and U.S. Customs and Border Patrol (CBP).

IV. Policing Impartially

1. As required by law, all enforcement actions by law enforcement officers, such as investigation, detentions, traffic stops, arrests, searches, and seizures, etc. must be based on reasonable suspicion, probable cause or other or relevant exigent circumstances, supported by articulable facts, circumstances, and conclusions that support the given action. 
2. Inspectors of this department may take into account reported race, ethnicity, or other personal characteristics of persons based on credible, reliable, locally relevant, temporally specific information that links a person of specific description to particular criminal incidents and is combined with other identifying information.
3. Under federal and state law, law enforcement agencies are required to provide qualified interpretation services, either in person or telephonically, to any person in need of it. Members of this department shall not contact federal immigration authorities for interpretation services unless a clear emergency requires it, and qualified interpretation services are not available through any other means. Unless one of the exceptions included in Section X applies, the department member shall not ask about the immigration status of the person for whom interpretation is sought.
4. DMV complies with Title VI of the Civil Rights Act of 1964 and related nondiscrimination authorities as identified in the FMCSA Title VI Program Assurance. These authorities prohibit discrimination on the grounds of the following protected groups: race, color, national origin, sex, age, disability, low income, and limited English proficiency. All standard operating procedures regarding traffic enforcement activities are conducted in a nondiscriminatory manner, including the selection of CMVs for inspection.

V. Community Relations

To cultivate and foster transparency and trust with all communities’ members of this department shall do the following when conducting pedestrian and vehicle stops or otherwise interacting with members of the public unless circumstances indicate it would be unsafe to do so:

1. Be courteous and professional
2. Introduce him/herself to person stating the officer’s name and name of this department. Inspector shall state the reason for the stop as soon as practicable unless providing this information will compromise officer or public safety, or a criminal investigation.
3. Ensure that a detention is no longer than necessary to take appropriate action for the known or suspected offense. The officer shall convey the purpose of the reasonable delays.
4. Inspectors shall provide their name verbally when requested.  Inspectors may also provide the information in writing or on a business card.
5. In addition to the above, officers should answer relevant questions the person may have if doing so will not compromise safety and/or the investigation.

VI. Responding to Bias-Based Reports or Reports Regarding Bias from the Community

1. If any department member receives a call for service that appears to be based solely on an individual’s perceived personal characteristics or immigration status, the member will attempt to ascertain if there are other circumstances or facts that would constitute reasonable suspicion or probable cause.  If the complainant can offer no further information, the complainant will be advised that the shift supervisor will be in contact at the first opportunity.
2. The shift supervisor should attempt to familiarize the caller with the department Fair and Impartial Policing policy.  If the caller is concerned about the person’s perceived immigration status, the caller should be referred to federal authorities.   
3. At the conclusion of the call, the shift supervisor will document the contact using the department’s incident report system.
4. If a department member receives a report of a potentially biased or hate-motivated incident, the department shall either dispatch an officer to evaluate the complaint or refer the caller to the officer in charge.

VII. Training

1. This department will ensure that, at a minimum, all members and employees are compliant with Vermont Criminal Justice Council and legislative requirements regarding fair and impartial policing training.
2. Additional trainings may include but not be limited to instruction on anti-bias, power and privilege, non-English speaking communities, undocumented communities, and victim/witness services.
3. DMV provides Title VI Program-related training to personnel conducting traffic enforcement, compliance reviews, and safety audit activities including the adherence to FMCSA Enforcement Memorandum regarding ELP versus LEP (MC-ECE-2016-006).

VIII. Accountability and Compliance

1. The process for making a complaint shall be readily available to the public. Reasonable efforts should be made to accommodate language barriers.
2. All department members are required to promptly report allegations, complaints or knowledge of biased policing or suspected violations of this policy to their supervisor and the department’s internal investigation function. Where appropriate, employees are required to intervene at the time the biased policing incident occurs.
3. State law requires all Vermont law enforcement agencies to conduct valid investigations of alleged biased law enforcement, even if the named member or employee resigns. Effective July 1, 2018, this department is required to report to the Criminal Justice Council instances in which officers have willfully engaged in biased law enforcement or substantially deviated from policies prohibiting such enforcement.  The regulating authority may, in turn, impose sanctions up to revocation of officers’ certification.  
4. Violations of the policy shall result in appropriate disciplinary action as set forth in the department’s rules and regulations. Supervisors shall ensure that all employees in their command are familiar and in compliance with the content of this policy. Supervisors will be alert for and respond to indications of potential biased policing.
5. Supervisors shall ensure that all members of this department are familiar with the content of this policy and are operating in compliance with it.  Supervisors should randomly review records such as reports and MVR (see MVR policy) and monitor the conduct of the members under their supervision for the purpose of ensuring compliance with this policy and to identify training issues.
6. Upon the request from a member of the public, members will explain how a person should make a complaint regarding an officer’s conduct in accordance with the Internal Affairs policy and procedures.
7. This department will investigate alleged violations of this policy in accordance with established agency Internal Affairs / Citizen Complaint policy. 
8. Documentation- The department shall record:
   
   1. The number of traffic stops;
   2. The characteristics of race or ethnicity of the person stopped.  The identification of such characteristics shall be based on the observation and perception of the law enforcement officer responsible for reporting the motor vehicle stop and the information shall not be required to be provided by the person stopped.
   3. If the stop is for a law violation, the nature of the alleged law violation that resulted in the motor vehicle stop;
   4. Whether a warning or citation was issued, an arrest made, or a search conducted as a result of the motor vehicle stop. Search does not include a search incident to arrest or an inventory search; and
   5. Any additional information that the State of Vermont or this agency deems appropriate.

IX. Public Notice of Title VI Program Rights

DMV has adopted a Public Notice of Title VI Program Rights that informs the public regarding how to obtain more information or how to file a complaint.  This public notice is posted for public access here.  More information can also be found here.  Complaints filed by members of the Public (including drivers) are disposed of in accordance with Section X. Title VI Program Complaint Procedures and Forms (Pages #24-28) of DMV’s FMCSA Title VI Program Compliance Plan.

X. Establishing Identity:

1. Members of the department may make attempts to identify any person they detain, arrest, or who come into the custody of the department.
2. Acceptable forms of identification, which must include a photograph of the individual, include, but are not limited to, driver’s licenses from any U.S. state or foreign country, government-issued IDs by a U.S. jurisdiction, foreign passports, and consular ID cards.  All identification is subject to reasonable scrutiny and follow-up for authentication consistent with the provisions of this policy.
3. An individual shall not be stopped or detained solely for the purpose of establishing his or her identity. However, if the individual has already been stopped for a lawful purpose, he or she may be subject to objectively reasonable additional detention in order to establish identity (e.g., inquiry into identity during the course of a lawful traffic stop).
4. In exercising their discretion to use federal resources to establish an individual’s identity, department members should remain mindful that (1) their enforcement duties do not include civil immigration enforcement and (2) the department stands by its mission to serve all Vermonters, including immigrant communities, and to ensure trust and cooperation of all victims/witnesses. Contact with federal authorities made to determine an individual’s identity is restricted to the purpose of determining his or her identity, though this provision does not prohibit any communication governed by 8 U.S.C. §§ 1373 and 1744. See Section XIII below.

XI. Due Process, Immigration and Citizenship Matters - Federal Civil Immigration Law: Stops, Detention, Arrests and Administrative Warrants/ Detainers

1. Department members do not have authority to enforce federal civil immigration law. The Constitution’s Fourth Amendment and the Vermont Constitution’s Article 11 right against unreasonable search and seizure apply equally to all individuals residing in Vermont.
2. Department members will not inquire of a person about that person’s immigration status unless it is necessary to the ongoing investigation of a criminal offense. Agency members shall not use individual personal characteristics to ask about or investigate immigration status. This directive does not apply to communications governed by 8 U.S.C §§ 1373 and 1644. See Section XIII below.
3. Department members shall not facilitate the detention of undocumented individuals or individuals suspected of being undocumented by federal immigration authorities for suspected civil immigration violations. This directive does not apply to communications governed by 8 U.S.C §§ 1373 and 1644. See Section XI below.
4. Department members shall not initiate or prolong stops for the purpose of enforcing civil immigration matters, such as suspicion of undocumented status, nor shall they prolong stops for the purpose of allowing federal immigration authorities to conduct such investigation.
5. Department members shall not arrest or detain any individual based on an immigration "administrative warrant” or “immigration detainer.” These documents have not been issued or reviewed by a neutral magistrate and do not have the authority of a judicial warrant. In addition, these documents do not meet the probable cause requirements of the Fourth Amendment and Article 11 of the Vermont Constitution.
6. Department members shall not hold for, or transfer people to, federal immigration agents unless the federal agents provide a judicial warrant for arrest. An immigration detainer is not a warrant and is not reviewed by a judge, and therefore is not a lawful basis to arrest or detain anyone. Valid criminal warrants of arrest, regardless of crime, shall not be confused with immigration detainers. This provision does not affect the proper handling of arrests and detentions associated with judicially-issued criminal arrest warrants.
7. In assessing whether to seek continued custody under Vermont Rule of Criminal Procedure 3, department members shall not presume that undocumented individuals necessarily present a risk of flight.  Instead, such judgments shall be made on the facts presented in each case, rather than made simply on the basis of immigration status. In addition, personal characteristics shall not be used as a reason to arrest someone instead of citing them, and personal characteristics shall not impact the decision on whether to seek continued custody pursuant to Vermont Rule of Criminal Procedure 3.
8. Personal characteristics and/or immigration status, including the existence of a civil immigration detainer, shall not affect the detainee’s ability to participate in pre-charge or police-initiated pre-court processes such as referral to diversion or a Community Justice Center.

XII. Federal Criminal Law

Border Crossings: Department members have authority to enforce federal criminal law. Unauthorized border crossings by persons who are not U.S. citizens or nationals can be a federal crime. (Generally speaking, unauthorized entry is a misdemeanor and unauthorized re-entry following prior deportation or immigration removal is a felony.). All laws and constitutional rights applicable to criminal investigations apply to the enforcement of federal criminal law. However, mere unauthorized presence in the country (e.g., overstaying a visa) is not a federal crime, but a civil infraction.

1. As stated in Section XIII A, department members shall not inquire of a person about that person’s immigration status unless it is necessary to the ongoing investigation of a criminal offense. Agency members shall not use individual personal characteristics to ask about or investigate immigration status. (For example, you cannot ask someone about immigration status merely on the basis race, color, or perceived national origin.) This directive does not apply to communications governed by 8 U.S.C §§ 1373 and 1644. See Section XIII below. If a department member is contacted by federal authorities, please refer to Section XIII, Collaboration with Federal Immigration Officers.

XIII. Victim and Witness Interaction

The cooperation of immigrant communities is essential to prevent and solve crimes and maintain the safety and security of all residents. The following provisions are intended to support crime victims/witnesses and enhance trust between the police and community.

1. Department members shall not ask about or investigate immigration status of crime victims/witnesses, except as allowed in subsections (b) and (c) below.  Federal law does not require law enforcement officers to ask about the immigration status of crime victims/witnesses.
2. To effectively serve immigrant communities and to ensure trust and cooperation of all victims/witnesses, members of this department will not ask about, or investigate, immigration status of crime victims/witnesses unless information regarding immigration status is an essential element of the crime (such as human trafficking).
3. If a victim/witness is also a suspect, department members should follow the provisions in Section IX related to stops, detention and arrest and Section X(a) related to ongoing criminal investigations.
4. Department members will ensure that individual immigrants and immigrant communities understand that full victim services are available to documented and undocumented victims/witnesses.  Department members should communicate that they are there to provide assistance and to ensure safety, and not to deport victims/witnesses. In considering whether to contact federal authorities pursuant to 8 U.S.C. § 1373, department members should remain mindful that (1) their enforcement duties do not include civil immigration enforcement and (2) the department stands by its mission to serve all Vermonters, including immigrant communities, and to ensure the trust and cooperation of all victims/witnesses.
5. Department members may, in appropriate situations, advise an individual that if they are undocumented that they may be eligible for a temporary visa. 

XIV. Collaboration with Federal Immigration Officers

Department members have no obligation to communicate with federal immigration authorities regarding the immigration or citizenship status of any individual. Two federal statutes, 8 U.S.C §§ 1373 and 1644, provide that local and state agencies and officials may not prevent or restrict their employees from communicating with other government officials (for example, ICE or CBP) regarding an individual’s “citizenship or immigration status”.  Department members shall apply this policy in a manner consistent with the lawful operation of these two statutes.

1. Information about an individual that is outside the scope of Sections 1373 and 1644 (i.e., information other than “citizenship or immigration status”) should not be shared with federal immigration authorities unless there is justification on the grounds of:
   
   1. public safety, 
   2. officer safety, or
   3. law enforcement needs that are not related to the enforcement of federal civil immigration law.
2. Sweeps intended solely to locate and detain undocumented immigrants without reasonable suspicion or probable cause of a crime shall not be conducted unless acting in partnership with a federal agency as part of a formal agreement entered into by the governor.  
3. Individual members of this department are not permitted to accept requests by ICE or other agencies to support or assist in operations that are primarily for civil immigration enforcement. This directive does not apply to communications governed by 8 U.S.C §§ 1373 and 1644.
4. Unless ICE or Customs and Border Patrol (CBP) agents have a judicially issued criminal warrant, or department members have a legitimate law enforcement purpose exclusive of the enforcement of civil immigration laws, department members shall not propose granting ICE or CBP agents access to individuals in this department’s custody.

XV.    SAVINGS CLAUSE

1. Pursuant to 8 U.S.C §§ 1373 and 1644, this department may not prohibit, or in any way restrict, any government agent or official from sending to, or receiving from, federal immigration authorities’ information regarding the citizenship or immigration status, lawful or unlawful, of any individual.  This department also may not prohibit, or in any way restrict, the sending, receiving, maintaining, or exchanging information regarding the immigration status of any individuals.  Nothing in this policy is intended to violate 8 U.S.C §§ 1373 and 1644.

Commercial Vehicle Safety Alliance guidelines for selecting a commercial vehicle for a North American Standard Inspection. 

These guidelines shall be substantially in accordance with the criteria set forth in the Commercial Vehicle Safety Alliance Operational Policy 13.  This selection process shall not include any process or practice that is prohibited in the Department’s Federal Motor Carrier Safety Administration Title VI Program Compliance Plan and any additions or amendment thereto.

A.      Department Responsibilities:

It shall be the responsibility of this Department to provide training on this Standard Operating Procedure to all individuals who complete North American Standard Inspections, New Entrant Safety Audits, or Carrier Investigations. 

B.      Inspector Responsibilities:

1)   Any vehicle selected for inspection should be selected with the intention of promoting highway safety and protecting the integrity of the roadside safety data collection process.  Any vehicle selected for inspection should be parked in an area adequate to protect the safety of the driver and Inspector in accordance with 49 C.F.R. § 350.211.

2)   Any driver or vehicle subject to a North American Standard Inspection should have an accompanying Driver/Vehicle Examination Report documenting any violation(s) discovered, if any, including further violation description as necessary.

3)   Inspectors should provide a copy of the inspection report to the driver, unless there is a legitimate reason why it cannot be such as printer failure, etc.

4)   Inspectors should document the MCSAP inspection in the Valcour Records Management System.

5)   While on mobile patrol, Inspector should focus on CMV drivers that commit a traffic violation or commercial vehicles that have a vehicle defect, vehicles that appear to be over statutory size or weight limits, or another legitimate documented reason.

C.      Special Considerations:

1)   MCSAP Inspectors shall not disturb or interrupt any commercial vehicle driver in an off-duty or sleeper berth status when legally parked for the purpose of conducting a random inspection.  This does not include drivers that are logged off-duty or sleeper berth but are actually in an on-duty or driving status such as false log scenarios. 

2)   At fixed site locations, any method of vehicle selection could be used, such as, but not limited to; carrier safety rating, electronic screening information, observable defect, permit verification, or random selection.

3)   No carrier or driver should be unnecessarily targeted unless a verifiable pattern is present, or the vehicle falls into the random vehicle selection process. 

4)   Level V Inspections are discouraged unless conducted on passenger carrier vehicles or in conjunction with a safety audit or carrier investigation.