The myths surrounding it may hinder real action on criminal deportations.
April 9, 2008
The emotional heat of the immigration debate finally grew so intense that it opened up several alternate dimensions, where fact evaporates and folklore guides what passes for policy discussion. In one parallel Los Angeles, police officers see violent gang members whom they know to be illegal immigrants but can do nothing to stop them because of a politically correct edict known as Special Order 40. It has become common knowledge in this world that the order doomed young Jamiel Shaw II, the high school student gunned down by an illegal immigrant gang member who roamed the streets with impunity after being released from jail because local law protected him from deportation.
Back in the real world, where fact still holds sway, Special Order 40 had no role in Shaw's killing. Illegal immigrant and 18th Street Gang member Pedro Espinoza was arrested in November by Culver City police -- not the LAPD -- and jailed on a weapons charge. Espinoza should have been held by U.S. Immigration and Customs Enforcement pending deportation. Instead, he was released, and an innocent and promising high school student was shot to death. The tragedy exposes deplorable failures in the jailhouse processing of illegal immigrant criminals, but it has nothing to do with the LAPD, much less with Special Order 40.
The order was adopted in the late 1970s by then-Chief Daryl F. Gates, hardly a soft-on-crime liberal, who knew that the LAPD would be more effective if undocumented witnesses and victims felt free to speak with officers without fearing deportation. The order prevents officers from questioning people solely to determine their immigration status or arresting them solely for violations of immigration law. It does nothing to stop officers from arresting a violent suspect or calling in federal agents to investigate a person they believe illegally reentered the U.S. after deportation. It was good policy then and remains so today.
But officers often aren't aware that they're allowed to call in ICE when they see a criminal they know was deported. The LAPD began clarifying guidelines for officers to comply with the order, but it dropped the effort because it was so politically volatile. This fact opens up yet another parallel universe, one in which denial dictates policy. In this world, it is convenient to ignore that up to 25% of the Los Angeles County jail population is here illegally, or that police and the sheriff could take better advantage of the paltry federal assistance that is offered.
Espinoza escaped federal detection when sent to jail and when released, according to sheriff's officials, simply by lying when asked where he was born. Any procedure that easy to evade is no procedure at all. When officers don't know what they can and cannot do, and when other official procedures for protecting the public remain so flimsy, it's hard to fault critics who incorrectly believe that Special Order 40 lets felons run rampant.
All sides of the immigration debate must reject the folklore about Special Order 40 and get real about removing violent criminals who can and should be deported.
Finding the real Special Order 40 Posted by Robert Greene on April 9, 2008
Special Order 40 was issued on Nov. 27, 1979 by then-Chief Daryl Gates. The order was then divided into several parts so that they could be inserted into the proper parts of the LAPD manual. To see a facsimile of the order as it was adopted, you must check with sources outside the LAPD, like this one.
To find the order as it currently applies to the LAPD, you must first go to the manual here.
Next, in the second light blue bar near the top of the page, click on Volume 1. Now scroll down to section 390 to find portions of a policy statement on immigration status adopted by the Police Commission in March 1979. Section 390 reads:
Undocumented alien status in itself is not a matter for police action. It is, therefore, incumbent upon all employees of this Department to make a personal commitment to equal enforcement of the law and service to the public regardless of alien status. In addition, the Department will provide special assistance to persons, groups, communities and businesses who, by the nature of the crimes being committed upon them, require individualized services. Since undocumented aliens, because of their status, are often more vulnerable to victimization, crime prevention assistance will be offered to assist them in safeguarding their property and to lessen their potential to be crime victims.
Now return to the top of the LAPD Manual and click on Volume 4. Now scroll down to section 264.50. This is the procedural portion of Special Order 40 that in the original order was labeled part I. It reads as follows:
264.50 ENFORCEMENT OF UNITED STATES IMMIGRATION LAWS. Officers shall not initiate police action where the objective is to discover the alien status of a person. Officers shall neither arrest nor book persons for violation of Title 8, Section 1325 of the United States Immigration Code (Illegal Entry).
Now scroll further down in Volume 4 to section 675.35. This is the section instructing officers how to turn an arrestee over to the Immigration and Naturalization Service (now Immigration and Customs Enforcement). It reads:
675.35 PLACEMENT AND DISPOSITION OF ILLEGAL ENTRY HOLDS. Supplemental holds charging illegal entry against persons in the custody of this Department for an unrelated criminal offense shall only be authorized by officers of the United States Immigration and Naturalization Service (INS). Arrestees against whom the INS has placed a hold shall be released to the custody of INS within 24 hours after:
All local charges are dismissed; or,
Bail is deposited on the local charges; or,
The arrestee is determined to be eligible for release on his/her own recognizance on the local charges.
Note: Under no circumstances shall any person be held longer than 24 hours when an illegal entry hold is the only remaining charge. There is no extension of the 24 hour detention limit because of an intervening holiday or weekend period. Procedures governing the booking and detention of prisoners held enroute are unaffected by this section.
A considerable amount of misinformation has spread about what Special Order 40 says. For example, the Los Angeles City Council adopted a motion in 1990 (file number 90-1347) that purported to instruct the LAPD to not assist or cooperate with the INS. To become policy, that order would have had to be adopted by the Police Commission. It was not. However, the LAPD does have policies and procedures that are more restrictive than Special Order 40. See, for example, the 2001 analysis by the Rampart Independent Review Panel here (pdf).
In practice, an LAPD officer on booking a suspect asks where he or she was born, and if the answer is a place outside the U.S., that triggers additional inquiries by the Los Angeles County Sheriff's Department when the person is admitted to the jail. That inquiry in turn could trigger an investigation by ICE, which has agents at the jails, and ideally would trigger an immigration hold on an illegal inmate who otherwise would be released. It is obviously easy for an illegal immigrant to evade detection in this system simply by lying -- but that has nothing to do with the sensible provisions of Special Order 40 as they are written, even if they are misapplied.
Remember, Special Order 40 simply bars officers from initiating police action "where the objective is to discover the alien status of a person" or from arresting or booking people for illegal entry.
The misunderstanding about how to apply Special Order 40 is so pervasive that to this day, some officers apparently believe that the order prevents them from cooperating with immigration officials. See, for example, this March newsletter for the Northeast Area, in which a senior lead officer quotes language from a City Council resolution never adopted by the Police Commission (scroll down to Basic Car 11A89).
It is amazing how this thing has been so misunderstood over the years but not so much by officers of the LAPD, but by the general public and the media (no surprise there).
Whenever we arrest people, we always ask where they were born. It's usually kind of obvious that they are from South American country but not always.
Quite a few of the MS-13 and 18th Street gangsters I've arrested over the years are here illegally. It's up to the Los Angeles County Sheriffs to determine if ICE needs to be contacted although sometimes the suspect already has a deportation hold on them prior to being arrested. We just arrest and book them, the Sheriffs process and house them. ICE gets contacted a lot, so much in fact that they can't always respond, which doesn't help get rid of the stereotype of Special Order 40.
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