It’s Not LAPD’s Job to Ask Who Is a Legal Resident

Last month, a 10-year-old boy returning to his native United States from an extended stay in Mexico was taken into custody at the airport here because the immigration authorities did not believe he was a U.S. citizen. The boy spoke little English but was in possession of a certified birth certificate. After almost three hours detention, he was paroled into the custody of his mother and ordered to report to the Immigration and Naturalization Service office for further investigation. After two more interviews, with his attorney present, and the production of an additional copy of the birth certificate, the INS concluded its investigation, having determined that the boy was indeed a U.S. citizen.

What the INS did was perfectly lawful, but it demonstrates that it is not easy, even for an agency that deals exclusively with immigration and citizenship matters, to determine who is or is not a U.S. citizen at first glance.

Now the Los Angeles City Council’s Public Safety Committee is once again considering allowing the police to inquire into people’s immigration status. It wouldn’t matter if they were being held for some other reason or just happened to cross paths with an officer--a Spanish-speaking 10-year-old, say, walking to school without a certified copy of his birth certificate in his pocket.

For 17 years the LAPD has been operating under Special Order 40, which prohibits initiation of police action for the sole purpose of discovering someone’s immigration status and then reporting the suspected undocumented person to the INS, unless the person is charged with a felony or serious misdmeanor.

Special Order 40 was implemented in 1979 as a result of a lawsuit challenging the LAPD practice of routinely detaining suspected undocumented immigrants without bringing criminal charges, and transporting them to the INS for arrest based on suspicion of noncriminal violations of federal immigration laws.

Deputy Chief John White has now informed the Public Safety Committee that Special Order 40 hinders the LAPD’s ability to work with the INS. This is a strange claim and a false one. Special Order 40 in no way restricts the ability of the LAPD to engage in joint criminal investigations with the INS. This was affirmed by the Police Commission in 1990 in response to a council member’s query and remains true today.

In 1991 then-Chief Daryl Gates opposed several City Council recommendations to tighten Special Order 40. In a detailed memorandum Gates articulated how the proposed further restrictions would hinder LAPD’s mission. Gates did not, however, complain about Special Order 40 or indicate that it hindered the LAPD in any way. Indeed, the chief acknowledged that the police had an obligation to reach out to members of the undocumented community since they are particularly vulnerable to being victimized. There has been no showing to date that officers are hampered in their law enforcement duties by the proscriptions against asking about people’s immigration status.

Special Order 40 is far from perfect, but loosening it is the last thing LAPD needs. Do we really want to add to officers’ training and duties the ability to discern someone’s immigration status? The profusion of types of “papers” held by noncitizens is daunting: Among them are lawful permanent residents whose status is documented with the “green card,” nonimmigrant visa holders with visa stamps in their passports, asylees who often will have different documentation depending on whether asylum was granted by an immigration judge or by the INS. And those are the easy categories. Tens of thousands of Salvadorans and Guatemalans who were granted the right to remain here temporarily used to carry as their only documentation expired INS work permits that had been extended through publication of a notice in the Federal Register.

The disturbing thing is that everyone who speaks English with an accent would be open to suspicion if Special Order 40 were loosened. An indication of what could happen was given in 1992 when members of the Coalition for Humane Immigrant Rights of Los Angeles met with Chief Willie Williams and other high-ranking LAPD officers to discuss the problem of Latinos being asked for immigration documentation during traffic stops. Deputy Chief Bernard Parks attempted to justify continuing the practice on a case by case basis. One of us pointed out that tens of thousands of Canadians, many of whom are undocumented, live and work in Los Angeles; it was suggested, tongue in cheek, that the LAPD check the immigration status of everyone during traffic stops. Parks replied that such a practice would be unacceptable.

In the aftermath of the 1992 civil disturbances, the Christopher Commission concluded that even in such an emergency situation, “the short-term benefits of the use of . . . resources from the INS and Border Patrol in a community with as high an immigrant population [as Los Angeles] probably do not outweigh the potential long-term detriment associated with the use of such . . . resources.” Nothing has changed in recent years to make one believe that if the LAPD were given the authority to ask for immigration documents, that such a practice would not have a seriously detrimental effect on the Latino and Asian communities of Los Angeles, citizen and noncitizen alike.

Until the LAPD presents data to the Public Safety Committee demonstrating that the past conclusions of the Police Commission are no longer valid, and that Special Order 40 is now suddenly interfering with LAPD’s law enforcement obligations, neither the City Council nor the Police Commission should begin contemplating any changes to the policy.