Save Special Order 40

Save Special Order 40

We can't afford to end the policy that prevents police stops to ask immigration status.

By Charles L. Lindner
CHARLES L. LINDNER is a past president of the Los Angeles Criminal Bar Assn.
May 6, 2007

IN 1979, then-Police Chief Daryl Gates issued Special Order 40, prohibiting officers of the Los Angeles Police Department from stopping people solely for the purpose of discovering their immigration status.

Twenty-eight years later, the order still makes political sense. In a city with a large immigrant population, many of whom are here illegally, residents are more willing to talk to the police, testify in court as victims of crime or witnesses to it and participate in programs like Community Watch if they know they will not be asked about their nationality status.

What's more, if an officer has probable cause to believe that a person has committed a crime and arrests him, then it is absolutely appropriate under LAPD rules to ask the suspect's immigration status. In fact, not only is it allowed, it is required. The cop must then notify his commander if the arrestee is an illegal immigrant. Information about a suspect's nationality status appears on most booking sheets for arrest reports in the county. This too is a good rule.

In essence, all Special Order 40 does is ensure that LAPD officers stick to the business of investigating crime and making arrests — and that they don't take on the job of harassing people on the street over their immigration status.

Nevertheless, the order has become a lightning rod for anti-illegal-immigrant forces, which claim that it is a barrier to enforcing immigration law. It is the target of two lawsuits, one by Judicial Watch, a conservative nonprofit group based in Washington, and the other endorsed by the Federal Immigration Reform and Enforcement Coalition, an assortment of individuals and groups who want stricter enforcement of immigration laws.

In its suit, Judicial Watch contends that Special Order 40 violates state and federal law because it limits cooperation between the LAPD and federal authorities in enforcing immigration law. The other suit relies on an obscure state provision that requires local police to report to the feds the names of illegal immigrants arrested on drug charges.

If either suit prevails and Special Order 40 is overturned, it would open the way for abuse. Anti-gang officers, for instance, would be able to use immigration status to have "known" gang members deported even if they haven't been convicted of any crime. You don't have to be an ACLU member to recognize the opportunities for discrimination and harassment based on skin color, beginning with the fact that cops, not the courts, get to determine who is a "known" gang member.

For an individual placed on the "gang list" of 11,000 names, there has been no legal procedure to have his name removed or to challenge the truth of the listing. Under pressure from Police Commission President John Mack, the city attorney has created — though not yet implemented — an administrative blueprint by which the names of alleged gang members can be removed from the list. But there is no judicial review.

What the two lawsuits really seek is to turn the LAPD into an arm of Immigration and Customs Enforcement to help stem the flow of illegal immigrants into the country. This creates several significant problems. First, local cops have no law enforcement powers concerning immigration because they are not federal officers. As a result, few know anything about what constitutes a violation of federal immigration law. There is no federal equivalent of the "Police Officer's Penal Code," a simplified guidebook that most officers carry while on duty.

Costa Mesa tried cross-training the city's officers to enforce immigration laws by having them work in the field with Immigration and Customs Enforcement agents. But after enormous community criticism and legal questions concerning the use of Costa Mesa officers to enforce federal laws, the city adopted the same model followed by the L.A. and Orange County sheriffs — determine a suspect's nationality only after he's been arrested and booked, have federal agents present at the jails to ask about immigration status, try the accused and then transfer him to the feds for deportation or federal criminal proceedings for illegal entry.

Overturning Special Order 40 would also put an added burden on the U.S. attorney's office for the Central District of California, which includes Los Angeles County. About 260 lawyers are assigned to the office, the second largest in the country.

The office is already overwhelmed with highly complex civil, tax and criminal cases requiring enormous preparation time before trial. It could not prosecute even 1% of the felony illegal immigration cases that would come before it if Special Order 40 were overturned without buckling the federal criminal justice system because of a lack of prosecutors, defenders, probation officers and court time.

And Washington can't be counted on to help. The Justice Department's U.S. attorney website shows more than 100 openings in criminal divisions across the country, an extraordinary number because it suggests that many seasoned attorneys are leaving. Illegal immigrants commit countless crimes in Los Angeles, and many of them are convicted in state or federal courts and deported, only to reenter the country and commit more crimes. Undoubtedly, more prosecutions for illegal entry into the U.S. would preempt some of these crimes.

Los Angeles County Dist. Atty. Steve Cooley is reportedly considering loaning some of his deputy district attorneys to the U.S. attorney's office, meaning that they would temporarily be sworn in as both state and federal prosecutors. They would target criminal immigration cases in the hope of convicting felons who have been deported and illegally reentered the United States.

Special Order 40 remains a sensible policy because it encourages cooperation between the LAPD and the city's large immigrant population. Overturning the special order would not slow the tide of illegal immigration but would create a temptation for police excess. Given the Los Angeles Police Department's historic tensions with minority communities, that's a consequence worth averting.

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