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Finding the real Special Order 40

April 9, 2008 |  9:04 am

Special Order 40 was issued on Nov. 27, 1979 by then-Chief Daryl Gates. The order was then divided into several parts so that they could be inserted into the proper parts of the LAPD manual. To see a facsimile of the order as it was adopted, you must check with sources outside the LAPD, like this one.

To find the order as it currently applies to the LAPD, you must first go to the manual here.

Next, in the second light blue bar near the top of the page, click on Volume 1. Now scroll down to section 390 to find portions of a policy statement on immigration status adopted by the Police Commission in March 1979. Section 390 reads:

Undocumented 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. In addition, the Department will provide special assistance to persons, groups, communities and businesses who, by the nature of the crimes being committed upon them, require individualized services. Since undocumented aliens, because of their status, are often more vulnerable to victimization, crime prevention assistance will be offered to assist them in safeguarding their property and to lessen their potential to be crime victims.

Now return to the top of the LAPD Manual and click on Volume 4. Now scroll down to section 264.50. This is the procedural portion of Special Order 40 that in the original order was labeled part I. It reads as follows:

264.50 ENFORCEMENT OF UNITED STATES IMMIGRATION LAWS. Officers shall not initiate police action where the objective is to discover the alien status of a person.  Officers shall neither arrest nor book persons for violation of Title 8, Section 1325 of the United States Immigration Code (Illegal Entry).

Now scroll further down in Volume 4 to section 675.35. This is the section instructing officers how to turn an arrestee over to the Immigration and Naturalization Service (now Immigration and Customs Enforcement). It reads:

675.35 PLACEMENT AND DISPOSITION OF ILLEGAL ENTRY HOLDS. Supplemental holds charging illegal entry against persons in the custody of this Department for an unrelated criminal offense shall only be authorized by officers of the United States Immigration and Naturalization Service (INS). Arrestees against whom the INS has placed a hold shall be released to the custody of INS within 24 hours after:

All local charges are dismissed; or,

Bail is deposited on the local charges; or,

The arrestee is determined to be eligible for release on his/her own recognizance on the local charges.

Note: Under no circumstances shall any person be held longer than 24 hours when an illegal entry hold is the only remaining charge. There is no extension of the 24 hour detention limit because of an intervening holiday or weekend period. Procedures governing the booking and detention of prisoners held enroute are unaffected by this section.

A considerable amount of misinformation has spread about what Special Order 40 says. For example, the Los Angeles City Council adopted a motion in 1990 (file number 90-1347) that purported to instruct the LAPD to not assist or cooperate with the INS. To become policy, that order would have had to be adopted by the Police Commission. It was not. However, the LAPD does have policies and procedures that are more restrictive than Special Order 40. See, for example, the 2001 analysis by the Rampart Independent Review Panel here (pdf).

In practice, an LAPD officer on booking a suspect asks where he or she was born, and if the answer is a place outside the U.S., that triggers additional inquiries by the Los Angeles County Sheriff's Department when the person is admitted to the jail. That inquiry in turn could trigger an investigation by ICE, which has agents at the jails, and ideally would trigger an immigration hold on an illegal inmate who otherwise would be released. It is obviously easy for an illegal immigrant to evade detection in this system simply by lying -- but that has nothing to do with the sensible provisions of Special Order 40 as they are written, even if they are misapplied.

Remember, Special Order 40 simply bars officers from initiating police action "where the objective is to discover the alien status of a person" or from arresting or booking people for illegal entry.

The misunderstanding about how to apply Special Order 40 is so pervasive that to this day, some officers apparently believe that the order prevents them from cooperating with immigration officials. See, for example, this March newsletter for the Northeast Area, in which a senior lead officer quotes language from a City Council resolution never adopted by the Police Commission (scroll down to Basic Car 11A89).

Read today's editorial on Special Order 40.

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