The L.A. Times reports:
The Los Angeles Police Department’s landmark Special Order 40, which prohibits officers from inquiring about the immigration status of suspects, has come under an aggressive assault by anti-illegal immigrant activists who argue that it ties the hands of police.
Unfortunately, this is misinformation, as Special Order 40 actually does no such thing. You can read Special Order 40 here. Contrary to today’s Times article, Special Order 40 does not prohibit officers from inquiring about the immigration status of suspects. The Rampart Independent Review Panel explained this quite clearly in a 2001 report on Special Order 40:
On November 27, 1979, Chief of Police Darryl Gates issued Special Order 40, which is now codified in the LAPD Manual. . . [N]othing in the [LAPD] Manual actually bars an officer who is investigating an individual for criminal activity other than an immigration violation from asking that person about his or her immigration status and then advising INS.
Indeed, if local government tried to prohibit law enforcement from cooperating with the INS (now ICE), that would violate federal law.
What does Special Order 40 actually do? Its primary dictate is to prevent LAPD officers from initiating contact with a suspect for the purpose of enforcing immigration laws. As the Panel report explained:
As set forth in the Manual, Special Order 40 provides that “[u]ndocumented 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.” Special Order 40 precludes LAPD officers from initiating “police action with the objective of discovering the alien status of a person,” and from arresting or booking a person for “illegal entry” into the United States.
Once a person is lawfully in custody for a non-immigration related offense, however, nothing in Special Order 40 prevents an officer from inquiring into the suspect’s immigration status.
The reason that Special Order 40 is generally thought to prohibit any inquiry into immigration status is because, despite the wording of the order, that has been LAPD’s practice. As I explained in a March 2005 post, interviews with then-Chief Bernard Parks and other LAPD officials revealed that the Department’s actual policies and procedures are stricter than what is called for by Special Order 40 or anything else in the LAPD Manual. As the report by the Rampart Independent Review Panel explained:
Indeed, as articulated, the procedures are more restrictive than as written. First, LAPD officers are not supposed to ask individuals suspected of criminal offenses, crime victims, or witnesses, about their immigration status. Second, in practice LAPD officers do not notify the INS of the arrest of an illegal alien. Only after a person has been arrested, arraigned, and held in the county jail pending prosecution will his or her alien status be investigated by the INS, and that is in cooperation with the Los Angeles County Sheriff, not the LAPD. Thus, there is no reason for an LAPD officer to even ask a person who has been arrested for a crime about his or her alien status, although that appears to be permitted under the Department’s articulated policies and procedures.
The Panel emphasized that these informal policies (with which the Panel largely agreed) were not set forth in Special Order 40 or the LAPD manual, but rather were practices that had developed apart from the specific requirements of the written Manual, including Special Order 40.
It has become conventional wisdom that Special Order 40 “prohibits officers from inquiring about the immigration status of suspects.” However, the fact that something is conventional wisdom doesn’t make it so, and the L.A. Times owes a clarification to its readers.
P.S. The article also downplays the conflict between LAPD’s practices and state law by describing the relevant state law as “obscure”:
Los Angeles was the first major city to enact the “don’t ask, don’t tell” policy on illegal immigration, though most other police agencies have followed suit. So the outcome of the legal challenges could have a widespread effect.
The latest challenge would come this week, with a lawsuit that would ask a judge to require that the LAPD inform federal immigration officials when illegal immigrants are arrested on drug charges.
The suit, which is endorsed by the Federal Immigration Reform Enforcement Coalition and is scheduled to be filed as early as today, cites an obscure state code that appears to require local police to report to federal authorities the names of any illegal immigrant arrested on suspicion of drug trafficking or possession.
I’m pretty sure that laws don’t have to be followed if they’re “obscure.” Isn’t that how it works?
UPDATE: I should note that I haven’t reviewed a recent version of the LAPD Manual to see whether stated practices are currently in line with Special Order 40. Can any readers provide that information? Jack Dunphy?