May 1, 2007 By Wallin & Klarich

A lawsuit was filed recently in LA Superior Court by residents of the City of Los Angeles seeking to stop the Los Angeles Police Department from enforcing its longstanding “Special Order 40.” The lawsuit alleges that Special Order 40, as well as the practices of the LAPD relating to that Order, run contrary to the mandates of California Health & Safety Code § 11369.

Special Order 40 was first enacted in November 1979 by then Police Chief Daryl Gates. The Order instructed officers to “not initiate police action with the objective of discovering the alien status of a person.” The Order continues that officers are prohibited from arrest[ing] or book[ing] persons for violation of Title 8, Section 1323 of the United States Immigration [sic] Code (Illegal Entry).” The Order states further that, upon arresting an “undocumented alien” for “multiple misdemeanor offenses, a high grade misdemeanor or a felony offense,” the LAPD is required to notify the immigration authorities of the arrest of the individual, and forward the individual’s arrest report to immigration officials.

A 2000-2001 study by the Rampart Independent Review Panel, which was assigned to investigate the Rampart scandal and report its findings to the LA Police Commission, found that, in practice, the LAPD “go[es] beyond the limited provisions of Special Order 40.” The Panel’s investigation found that LAPD officers do not notify immigration authorities of the arrest of an “undocumented alien” as they are required to do under the provisions of the Order. The Panel found that, in practice, immigration authorities are only notified of the arrest of an undocumented alien by LAPD, if, after the arrested person appears in court, the judge orders the person to be held in the Los Angeles County Jail. At this point, immigration authorities are notified by the LA County Sheriff’s Department, and not LAPD. Thus, in practice, according to the findings of the Rampart Panel, LAPD never notifies immigration authorities that an undocumented alien has been arrested.

This recently filed lawsuit challenges these practices by the LAPD as being contrary to the requirements of state law, to wit: California Health & Safety Code § 11369, which provides that, “[w]hen there is reason to believe that any person arrested for a violation of [certain enumerated drug related crimes], may not be a citizen of the United States, the arresting agency shall notify the appropriate agency of the United States having charge of deportation matters.” It seems clear that the LAPD policy of not notifying immigration authorities of the arrest of a person on such certain enumerated drug related crimes runs contrary to the requirements of this California statute.

One cannot say that the delegation of the obligation to report such offenders to immigration officials to the LA County Sheriff’s Department cures the problem here, since, in many cases, people arrested for alleged violations of drug crimes (and other crimes for that matter) by LAPD are never imprisoned in the County Jail after arrest, and, therefore, do not come to the attention of the Sheriff’s Department. In some cases, the prosecuting agency elects not to file criminal charges and the arrested person is released from the LAPD City Jail. In many other instances, the arrested person, or his or her family members, is able to post bail before the arrested person is transferred to the custody of the Sheriff’s Department, and, in that case, the arrested person is again released from the LAPD City Jail. Finally, even if the arrested person is held in the LAPD City Jail until they go to court for their first court appearance, in many cases, the judge will order the person released from custody without having to post any bail, meaning the person would be released from the courthouse, again without being transferred to the LA County Jail. Accordingly, none of these individuals would be reported to immigration authorities consistent with California state law.

It is worth noting that this recent lawsuit is similar to a lawsuit filed against the Los Angeles Police Department in April 2006. That lawsuit, which is still pending, likewise seeks to prevent LAPD from enforcing Special Order 40. The 2006 lawsuit alleges that Special Order 40 runs contrary to the US Constitution, the California Constitution, as well as certain provisions of US immigration law. Specifically, the Plaintiffs in the 2006 lawsuit argue that both the US Constitution and California Constitution declare that the US Constitution and US law are the “supreme law of the land,” and that, pursuant to Title 8, Section 1373(a) of the United States Code, “a Federal, State, or local government entity or official may not prohibit, or in any way restrict, any government entity or official from sending to, or receiving from, [US Immigration Authorities] information regarding the citizenship or immigration status, lawful or unlawful, of any individual.” The Plaintiffs in the 2006 lawsuit charge that Special Order 40 and LAPD policy run counter to these provisions of federal law.

That Special Order 40 may run afoul of federal and state law regarding the reporting of arrested persons to immigration officials may be obvious. The competing policy concerns that the lawsuits bring to the forefront are a little more difficult to address.

On the one hand, as former California Attorney General Daniel Lungren wrote in 1992 in response to an inquiry as to whether a city could properly, by way of an ordinance, prevent its employees from cooperating with the immigration service, “Congress surely did not intend that state and local governments would undermine the deterrent effect of the criminal or civil penalties contained in the [US Immigration & Nationality Act]. By giving the impression that illegal aliens may obtain refuge from such penalties in a particular locale, the ordinance creates localized immigration policy and dissipates enforcement of the federal laws.” The Attorney General continued that, “discernible congressional policy is substantially frustrated by a city ordinance impeding the right and the duty of city officials and law enforcement personnel to report, in the course of their official duties, possible violations of the [US Immigration & Nationality Act] to the proper federal authorities. As one of the principal collection points for legally obtainable, non-confidential information about persons who may be unlawfully present in this country, local law enforcement agencies constitute an important component of the overall effort to effectuate the civil provisions of the [US Immigration & Nationality Act].”

However, the proponents of Special Order 40 counter that the primary mission of LAPD is to enforce the LA City Municipal Code, as well as California State criminal laws and not federal immigration laws. LAPD is not a federal entity. It is clear that the City of Los Angeles has a substantial immigrant population – both legal and illegal, and that, in order to successfully investigate and prosecute alleged violations of City and State criminal laws, the LAPD, as well as the LA County District Attorney’s Office and LA City Attorney’s Office, must rely heavily upon the cooperation of the people who live in the City of Los Angeles, many of whom are illegal aliens. Thus, the concern is, if the illegal immigrant population of the City views LAPD officers as agents of the federal immigration service, members of this population would be inclined to shy away from assisting LAPD with its primary mission – the enforcement of City and State criminal laws – thereby permitting persons who violate local criminal laws to escape detection and prosecution. Put simply, the proponents of Special Order 40 contend that, but for Special Order 40, if an illegal alien witnesses a crime in the City of Los Angeles, the alien will not cooperate with LAPD in its investigation of the suspected criminal activity out of a fear that LAPD would refer the alien over to federal immigration officials at the conclusion of the investigation.

While the issue of whether LAPD policy runs counter to state and federal law regarding the reporting of illegal aliens to immigration officials might be clear, the competing policy determinations not as obvious.

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