Police face new suit on immigrants

Times Staff Writers

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.

The nearly 30-year-old policy has long been controversial, but the current national debate about illegal immigration has prompted lawsuits that are aimed at overturning Special Order 40 and similar rules across the country.

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.

The city is already gearing up for a trial over a Special Order 40 challenge that has been filed by another anti-illegal immigration group, the Washington, D.C.-based Judicial Watch. That group argues that the order is unconstitutional.

In both cases, plaintiffs said, they are supported by rank-and-file police officers who don't like the policy but are afraid to speak out publicly because Mayor Antonio Villaraigosa and Police Chief William J. Bratton are vocal proponents of it.

Some officers are calling on the Los Angeles police union board of directors to consider, for the first time, taking a formal position on Special Order 40. The board plans to discuss the issue soon.

"We have heard there is concern among the members," said Bob Baker, president of the Police Protective League, on Tuesday.

Some legal experts said Tuesday that they were intrigued by the anti-illegal immigrant forces' use of a section of the state's Health and Safety Code to attack Special Order 40.

The section, which was written in 1972, states that in drug possession and trafficking cases involving a noncitizen, "the arresting agency shall notify the appropriate agency of the United States having charge of deportation."

"This is going to be an interesting issue," said Gerald F. Uelman, a law professor at Santa Clara University.

Uelman said that although the challenge was novel, Los Angeles officials could argue that questioning the immigration status only of drug offenders violates the Constitution's Equal Protection Clause.

"What is the rational basis for choosing drug offenses over violent crimes?" Uelmen said.

Politically, Special Order 40 remains very popular at L.A. City Hall -- with supporters saying that it ensures that the members of the city's many immigrant communities will cooperate with police without fear of deportation.

Villaraigosa repeated his strong support for the policy Tuesday.

"I agree with Chief Bratton and every police chief before him that requiring our police officers to double as immigration agents will result in fewer arrests, prosecutions and convictions," he said.

But the policy -- and similar ones elsewhere in the United States -- have become the focus of debates in the blogosphere and on cable news shows and talk radio.

Last week, television and radio commentator Bill O'Reilly criticized Bratton for refusing to enforce the law against illegal immigrants.

The debate comes as cities debate how to deal with illegal immigrants. Some cities, such as Maywood, which is southeast of downtown Los Angeles, have dubbed themselves "sanctuary cities" that attempt to treat illegal immigrants like citizens.

But elsewhere -- including in Orange County -- some law enforcement officials have forged stronger ties with federal immigration officials. Orange County sheriff's deputies and Costa Mesa police officers receive training from immigration officials.

In Arizona, voters decided to deny bail to illegal immigrants who had been arrested on charges involving serious felonies. And Maricopa County deputies, some Phoenix police officers and state public safety police have been trained to enforce immigration laws.

Southern California immigrant-rights activists bristle at the thought that many Special Order 40 opponents, though living outside Los Angeles, seek to dictate how the city treats its immigrants. They are concerned that other cities are moving away from similar protective orders.

"It's a very slippery slope," said Angelica Salas, executive director of the Coalition for Humane Immigration Rights of Los Angeles. "We have always known with the LAPD there is disagreement on the issue. The leadership supports Special Order [40] but a minority of officers, a very vocal minority, want to enforce immigration laws and they want to expand their ability to do that."

Some LAPD officers privately support the latest lawsuit, said Dave Klehm, the Santa Ana attorney who drafted the litigation pro bono on behalf of a group of Los Angeles residents.

"One of the reasons I'm doing this is to help out police officers so they don't have to put their lives on the line repeatedly re-arresting drug offenders who should have been deported the first time," Klehm said Tuesday.

One veteran LAPD officer, who spoke on condition of anonymity because of fear of punishment, said Tuesday that he had talked to Klehm and other backers of the lawsuit and thought that the suit was a good idea.

"We are having a revolving door out there in terms of people we arrest for drug offenses who are in this country illegally," the officer said.

A second LAPD officer, who is part of the command staff, also voiced support for the litigation, saying that the department for decades has not reported the thousands of illegal immigrants arrested on drug charges to federal authorities.

The command officer said that many officers who don't like the current policy would support a change. Under the rules, the immigration status of most arrestees is checked by federal agents and county jail workers only after they have been convicted of a crime and are in jail.

The lawsuit cites a study by the U.S. Government Accountability Office in 2005. The GAO study, which involved 55,322 illegal immigrants incarcerated in federal, state and local facilities during 2003, found that they had been arrested an average of eight times each, and that 49% previously had been convicted of a felony, while 20% had been arrested for a drug offense. Many also had been convicted of violent crimes.

As a result, the lawsuit argues that if the LAPD complied with state law, "petitioners would have a much lower chance of being victims of a violent crime committed by an illegal alien who was previously arrested for any one of the 14 listed drug offenses."

One of the plaintiffs, 50-year-old machinist Rudy Moreno of El Sereno, said the repeal of Special Order 40 would help his neighborhood and the officers who work in it. "The police seem to have to keep re-arresting the same criminals over and over again," he said.

A survey of the Los Angeles County jail system earlier this year estimated that about 20% of the inmates were illegal immigrants.

The potential lawsuit comes less than a year after Judicial Watch sued the LAPD.

That suit alleges that Special Order 40 violates state and federal law by prohibiting the maximum amount of cooperation between the Police Department and immigration authorities in enforcing immigration laws.

"It handcuffs police officers' ability to ensure law and order in the city," said Sterling "Ernie" Norris, an attorney for Judicial Watch. "It is a model for sanctuary cities. It is the original. Los Angeles is where it all began."

Norris said the problem was illustrated by last week's auto accident in which an illegal immigrant, who had been arrested before, was allegedly driving drunk when his truck struck a car, killing film director Bob Clark and Clark's son Ariel.

"If he wasn't here, he couldn't have committed the crime," Norris said. "If law enforcement had been able to do their duty, it would have saved those lives."

But ACLU staff attorney Belinda Helzer said Special Order 40 allows people in the United States illegally to feel comfortable in approaching the police to report crimes.

Repealing it, she said, "would exacerbate the fear of victims" of crime "who are undocumented and are already living in the shadows."




For The Record Los Angeles Times Friday April 27, 2007 Home Edition Main News Part A Page 2 National Desk 2 inches; 87 words Type of Material: Correction Police and immigrants: An article in the April 11 California section about a lawsuit against the Los Angeles Police Department stated that the department's landmark Special Order 40 "prohibits officers from inquiring about the immigration status of suspects." The 1979 order states that "officers shall not initiate police action with the objective of discovering the alien status of a person." Although officers have long interpreted the order as a prohibition, LAPD officials said they don't consider Special Order 40 a blanket ban on inquiring about immigration status.
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