Local Police and Immigration Law: The Case of Special Order 40

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In the 1970s, it was common for Los Angeles police officers to investigate and arrest residents for violations of Title 8 of the U.S. Immigration Code, which sets forth the requirements for immigration. Officers would even make "sweeps" of local businesses and neighborhoods to look for undocumented immigrants. The LAPD's Special Order 40 changed those practices.


Special Order 40 prevents Los Angeles police officers from questioning suspects about their immigration status. (Wikimedia Commons)

Between 1970 and 1980, the population of California grew by over 3.5 million people. Most of these people were born in California, but many were immigrants to the state. Some came from other states within the United States. Others immigrated from foreign countries. The city of Los Angeles, the most populous city in the state, absorbed many new immigrants.

On November 27, 1979, Los Angeles Police Chief Daryl Gates issued a new order to the city's police officers. It banned the officers from inquiring into the immigration status of those they came in contact with. Known as Special Order 40, the order stated that "officers shall not initiate police action with the objective of discovering the alien status of a person."

The word "alien" in the order is a legal term. It refers to a person who was born outside the United States and who has not been naturalized as a citizen.

Chief Gates instituted the order to facilitate better relations between the police and Los Angeles' growing immigrant population. He stated that the police department "is sensitive to the principle that effective law enforcement depends on a high degree of cooperation between [the LAPD] and the public it serves." To achieve that cooperation, Special Order 40 was intended to allow undocumented immigrants to report crime to the police without fear of being deported.

Chief Gates also believed that the city's police should not be held responsible for the federal government's control of the U.S.-Mexico border. In the language of the order, "[o]fficers shall not arrest nor book persons for violation of Title 8...of the United States Immigration Code (Illegal Entry)." Instead, Chief Gates felt that was a task for federal law enforcement.

Since 1979, the order has been a part of the police officers' manual. The manual is a publication that officers use to understand the law, tasks, and responsibilities of their job. Special Order 40 has been incorporated into Section 264.50 of that manual. Officers are routinely trained not to inquire into the immigration status of either witnesses or suspects.

Not everyone agrees that officers should be so restricted. Critics of Special Order 40 point to changes in Los Angeles and the nation that cause them to oppose the order. One changed circumstance is the dramatic increase of undocumented residents in Los Angeles since Special Order 40 was enacted. One estimate is that by 2005, approximately 800,000 undocumented residents lived in Los Angeles County. The effect of Special Order 40, critics say, is to make Los Angeles a safe haven for undocumented immigrants. Other large cities have initiated similar ordinances or police orders, including Washington, D.C., San Francisco, and New York City.

Another circumstance is the aftermath of the 9/11 terrorist attacks in 2001. Some critics of the special order cite the 9/11 Commission Report to say that local and state law enforcement agencies are supposed to cooperate with federal authorities in enforcing immigration laws. The report states, "It is elemental to border security to know who is coming into the country.... There is a growing role for state and local enforcement agencies." These agencies, critics say, must assist in the apprehension of terrorist suspects, and Special Order 40 interferes with their ability to do that.

Supporters of Special Order 40, including the current Los Angeles Chief of Police William Bratton, counter that the order enables LAPD officers to effectively police immigrant communities. They say the original purpose of the order is still relevant. Chief Bratton has stated that "[the order has] worked for almost 30 years."

Supporters also argue that nothing in the order precludes police from inquiring into the immigration status of suspects after they have been arrested for a separate, serious crime. Section II of the order gives police a specific procedure to follow "[w]hen an undocumented alien is booked for multiple misdemeanor offenses, a high grade misdemeanor or a felony offense, or has previously been arrested for a similar offense...." The procedure includes marking the arrest report face sheet "Undocumented Alien."

Controversies have arisen around enforcement of the order. In 2006, the non-profit watchdog group Judicial Watch sued the LAPD to end the order. The group claimed that it violated Article VI, Clause 2, of the U.S. Constitution (the supremacy clause), which states that the Constitution and laws made by the federal government "shall be the supreme Law of the land." In June 2008, however, Los Angeles Superior Court Judge Rolf M. Treu dismissed the lawsuit, saying that the order neither violated federal law nor interfered with communication between police and federal immigration officials.

A related controversy pertains to the shooting death of Jamiel Shaw. Shaw was a 17-year-old student and college-bound football player at Los Angeles High School. On March 2, 2008, he was shot to death. The alleged perpetrator was a 19-year-old named Pedro Espinoza. Espinoza allegedly is a member of the infamous 18th Street gang and also an unauthorized immigrant. He had been released from custody from the Los Angeles County Jail. (He was never in LAPD custody.)

As a result of the fatality, local politicians, activists, and Shaw's family proposed that the Los Angeles City Council rescind the ordinance that gave rise to Special Order 40. One suggestion was for the council to adopt a new ordinance now commonly known as "Jamiel's Law." The ordinance would amend Special Order 40 to allow police to investigate suspected violations of the federal immigration code by gang members. It would also mandate that the police and the city's mayor cooperate with the federal government to "identify, arrest, deport and/or prosecute and imprison gang members who are in the country illegally...."

The Los Angeles City Council did not pass Jamiel's Law. Supporters gathered signatures to place the measure on the spring 2009 ballot as a city initiative. They failed, however, to get enough signatures.

With the election of Donald Trump to the presidency of the United States in 2016, new questions arose around Special Order 40. Trump had campaigned on a pledge to deport millions of unauthorized immigrants. In response, both Los Angeles Police Chief Charlie Beck and Mayor Eric Garcetti announced that the LAPD would not alter its policy under Special Order 40.

“We are not going to engage in law enforcement activities,” Chief Beck said, “solely based on somebody’s immigration status. We are not going to work in conjunction with Homeland Security on deportation efforts. That is not our job, nor will I make it our job.”


For Discussion

  1. What were the reasons for the Los Angeles police to adopt Special Order 40? What led to criticism of the order?
  2. Do you agree with Judge Treu's decision in the lawsuit over Special Order 40? Why or why not?
  3. Would "Jamiel's Law" address the circumstances that led to the death of Jamiel Shaw? Why or why not?
  4. What are the pros and cons of limiting local police involvement in immigration enforcement?

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