Map

The above picture consists of the states involved in the 1963 Vienna Convention on Consular Relations; the green states represent parties to the Convention; the yellow states are signatories; the red states are non-signatories

By: Andrea J. LaMontagne
Valparaiso University School of Law
J.D. Candidate, 2016

Pursuant to Article 36 of the 1963 Vienna Convention on Consular Relations (VCCR), authorities that arrest or detain an individual within another state are required to inform the individual of his or her rights to have their consulate notified of the incident. In March of 2009, Illinois State Police Officer Todd Zeigler arrested a Nigerian citizen, Uche Mordi after a K-9 unit discovered drugs within his vehicle. Zeigler did not inform Mordi of his right to have his consulate notified upon his arrest- perhaps because Zeigler was unaware of Mordi’s citizenship status.

In the case at hand, Mordi brought an action under 42 U.S.C. § 1983 against three state police officers who did not comply with their obligations under the VCCR. The officers who were involved were Officer Todd Zeigler, who arrested Mordi, and Officers Greg Chance and Gregg Healey, who interrogated him. The issue in the case was whether the officers’ conduct was so clearly a violation of established law as to overcome their defense of qualified immunity.

Mordi informed Ziegler during the arrest that he had been born in Nigeria. However, Zeigler did not suspect that Mordi was a Nigerian citizen. As the Seventh Circuit Court of Appeals discussed in its decision, Mordi could have easily been born in Nigeria and could have become a citizen since that time.

In reaching their decision, the Seventh Circuit Court of Appeals discussed the recent United States decision Plumhoff v Rickard (an analysis of the case is available here), where it was held that the “crucial question” in deciding whether an officer of the law is within the scope of qualified immunity is determining by “whether the official acted reasonably in the particular circumstances that he or she faced.”

Holding in favor of the officers, the Seventh Circuit Court of Appeals held that, because reasonable officers in the same situation might have reacted in a similar manner and might not have realized the need for informing the individual of their rights to consular notification, the officers involved in the incident could not be held responsible for failing to inform Mordi of his rights.

More significantly, there is no clearly established law as to when VCCR notification must occur. The U.S. Supreme Court in Medellín suggested that such notification must occur within three working days. Since these officers only had contact with Mordi for a matter of hours, they were not sufficiently on notice of an individual responsibility to notify him of his VCCR rights during their relatively short interaction with him.

Although at first glance this decision might seem to have negative consequences, the value of the decision becomes apparent when one considers the importance of allowing officers to possess qualified immunity. Qualified immunity allows law enforcement professionals to make decisions with the best judgment they can in a moment when they often do not possess all of the facts. This case decided only the question of the officers’ liability for violating Mordi’s civil rights. He may have an opportunity to raise the VCCR issue on collateral appeal if he has not waived it.