Longtime Los Angeles Police Chief Daryl F. Gates built a reputation with aggressive policing programs that may have made the city safer but also cast a shadow of repression over its citizens, especially blacks and Latinos.
But in 1979, responding to the wave of illegal immigration, it was Gates who issued the policy that has since defined a tolerant posture toward the immigrant community — a policy employed by the LAPD and scores of other law enforcement agencies across the nation.
Special Order 40 prohibited officers from initiating contact with anyone for the sole purpose of learning their immigration status and ruled out arrests for violation of U.S. immigration law.
Its purpose was to build trust so that fear of deportation would not dissuade immigrants who were crime victims or witnesses from cooperating with police.
The policy has faced repeated attacks both from factions within the LAPD as well as anti-immigration activists who have challenged it on constitutional and practical grounds, saying it gives a free pass to criminals in the country illegally.
It now is facing renewed scrutiny as President Trump pushes a new crackdown on illegal immigration. While details are not fully developed, Trump has said he wants local law enforcement to cooperate with federal immigration officials and has threatened to cut off federal funding to those who don’t.
Like a long line of Los Angeles leaders before them, Mayor Eric Garcetti and Police Chief Charlie Beck have stood up for Special Order 40, even as it faces a potential threat under the new president’s executive order issued Jan. 25.
Special Order 40’s survival for nearly 40 years is based on Gates’ conception of the rule as a policing tool, not an immigration policy.
A law-and-order police chief crafting a policy that protects immigrants lacking proper papers may seem ironic, but to some who knew Gates, it isn’t so simple.
Attorney and longtime LAPD critic Connie Rice, who deposed Gates three times in lawsuits dealing with police misconduct, said he was not the racist he was portrayed to be.
“There was always a kind of duality to Gates that wasn’t that visible because the bad stuff was screaming loud and the good stuff was under the table,” Rice said. “What’s fascinating to me, given that some chiefs were far more racist, is that Gates in LAPD culture was considered progressive on racial issues.”
Rice said Gates has been viewed as racially hostile because “he didn’t stop the racism within LAPD culture, even if he himself didn’t subscribe to those views.”
Joseph Wambaugh, the author of best-selling books on LAPD culture, suggested that any contradiction was in Gates himself.
“Chief Gates was into the quasi-military, hard-ass approach in dealing with street crime,” Wambaugh, a former LAPD officer, wrote in an email. “But I never sensed any negative feelings from him about the undocumented or Latinos in general.”
Wambaugh said many Latino men and women rose to important roles under Gates.
Gates retired in 1992 under fire for his failure to prepare for the riots that followed acquittals in the police beating of Rodney King. He continued to speak out in support of Special Order 40, the last time in a speech before the City Council two years before his death in 2010.
Some of his heavy-handed initiatives faded away in disrepute. Among them were the Public Disorder Intelligence Division, or PDID, which was disbanded after the city settled a lawsuit alleging that it unlawfully infiltrated and harassed progressive groups.
Community Resources Against Street Hoodlums — the CRASH program — survived through the 1990s, when it became a rap music motif for police oppression in the black community.
Defenders of Special Order 40 say it served multiple policing goals.
Bayan Lewis, an LAPD veteran who was briefly interim chief in the 1990s, said one of those goals was to stop officers from padding their statistics with arrests that had nothing to do with crime.
“If you were short on misdemeanors, you’d just book someone on illegal entry,” Lewis said. “The jail would call the feds. The feds would come or not come. Most of the time they did not, because they were shorthanded.”
Lewis said the long-standing benefit of Special Order 40 has been “that people who talk to us know we don’t care if they are documented or undocumented. We’re not doing federal work anymore.”
But the policy became a target with the continued growth of the immigrant population and the eruption of anti-immigrant sentiment after the 1992 riots.
Critics contend that local police have a constitutional duty to enforce immigration laws and help federal authorities identify and deport those who are in the country without legal status.
“The LAPD is under no obligation to go out and do ICE’s job,” said Ira Mehlman, media director for the Federation for American Immigration Reform, referring to U.S. Immigration and Customs Enforcement. “But at the very least they should offer the same level of cooperation they offer other police agencies.”
Although a vibrant dissent continues on several websites seeking tougher enforcement of immigration laws, the courts have given those arguments no traction.
Judicial Watch, a conservative legal group, filed suit in Los Angeles Superior Court seeking an order to prevent the LAPD from enforcing the policy.
“It violates the state and federal law by prohibiting the maximum amount of cooperation between the Police Department and immigration authorities in enforcing immigration laws," said Candice E. Jackson, an attorney for the group.
An appeals court in 2009 upheld a lower court’s decision to throw out the lawsuit.
A Times series on the brutal rise of the 18th Street gang led to another public debate over Special Order 40 in the late 1990s. One article cited a confidential California Department of Justice report saying that as many as 60% of the estimated 20,000 18th Streeters were in the country illegally.
Then-LAPD gang czar John D. White, a deputy chief, told the City Council’s Public Safety Committee that because witnesses and victims of gang violence are often intimidated into silence, being able to work with the Immigration and Naturalization Service more closely would allow the LAPD another means of getting gang members off the streets — by deporting them under federal law.
Six months later, White backtracked, saying a department review concluded that the rule was not hindering anti-gang operations. “Throwing every illegal out of the country is not going to solve those problems,” White said.
The most visceral challenge to Special Order 40 followed the fatal shooting in 2008 of Jamiel Shaw II, a 17-year-old African American high school football player, by a gang member who was in the country illegally.
The youth’s parents, Jamiel Shaw Sr. and Anita Shaw, an Army sergeant who had served in Iraq, asked the City Council to change the policy so officers would routinely check the immigration status of known gang members who are crime suspects. They said it would make it easier to immediately deport them.
Their cause got some support from the black community, including commentator Earl Ofari Hutchinson, who wrote, “Amending, or even repealing, Special Order 40 won't bring Shaw's son back. Yet something must be done to patch the holes that allow violent criminals who are here illegally to fall through the cracks.”
Police factions opposed to the order were given public voice by then-Councilman Dennis Zine, a former LAPD officer. He proposed that officers be required to check the immigration status of any gang member they suspect of being in the country without authorization, even if the person had not been arrested.
A rousing public debate followed in which The Times published brief comments by 40 prominent citizens. Most, including Gates, Rice and Wambaugh, argued for the status quo.
“There will be no integrity to our criminal justice system without it," Rice wrote. “African Americans cannot be advocating racial profiling, which is what ending Special Order 40 would amount to.”
The council once again reaffirmed the policy.
But the Shaw case later became a rallying cry for Trump and his crackdown on illegal immigration.
Trump actually used the case in a political advertisement last year.
Jamiel Shaw Sr. appeared at several early Trump rallies. Trump gave Shaw a prime speaking spot during the Republican National Convention.
“Illegal immigration is not a victimless crime,” he said during the speech. “It needs to be dealt with. We need to secure the border, you know, we need to make America safe. We need to be able to live without being shot dead in the street.”
After November’s election, Garcetti and Beck reiterated their support for Special Order 40.