Special Order 40 has been city policy since 1979 under police chief Daryl Gates. In February 2006 the council ignored a petition with over 10,000 signatures requesting the council's endorsement of Special Order 40, brought by La Placita Immigrants Working Group, CARECEN, and the Immigration Solidarity Network, but times have changed.
Today Special Order 40 is being challenged in two lawsuits. In the wake of rising anti-migrant sentiment, Special Order 40 has come under attack because of its provision that police officers "shall not initiate police action with the objective of discovering the alien status of a person." Special Order 40 exempted the LAPD from the 1996 Illegal Immigration Reform and Immigrant Responsibility Act, which permits, but does not require, local law enforcement to assist federal immigration officials after receiving training. One lawsuit, brought by the Federal Immigration Reform Enforcement Coalition relies on an arcane state health statute that appears to require local police to provide the names of undocumented immigrants arrested on suspicion of drug trafficking or possession to federal authorities. The other suit, brought by Judicial Watch on behalf of L.A. resident Harold P. Sturgeon, claims Special Order 40 is superseded by state and federal law.
The Council's resolution may also be a message to the LAPD in light of a May 1 police action in MacArthur Park, in which peaceful ralliers supporting immigrant rights were stormed by police officers, beaten, and blasted with rubber bullets and wire mesh "bean bag" bullets. The Los Angeles Police Protective League earlier this spring seemed poised to take a stand against the order and has vehemently disagreed with Police Chief William Bratton's remarks laying partial blame for the MacArthur Park anti-immigrant beatings and shootings on street officers. The resolution provides cover for Bratton to resist pressure from the police union.
Sheriff's departments in Los Angeles, Riverside, San Bernardino and Orange counties have memoranda of understanding with the Department of Homeland Security under Immigration and Nationality Act section 287(g) to scour jails for undocumented arrestees. In addition, in Orange County, police attached with special units may check the immigration status of anyone they suspect of a felony. Sheriff Carona hopes to expand that authority to beat officers, as has been done in other city police and state highway patrol departments across the country, opening the door not only to racial profiling, but to permission for cops in the street to demand proof of identity and citizenship.
The text of the council's resolution, which was moved from item 33 on the agenda to the consent docket, is
"RESOLUTION (GARCETTI - REYES - ZINE) relative to legislation that would prohibit local regulations, such as the Los Angeles Police Department's (LAPD) Special Order 40, which are law enforcement tools that encourage the involvement of the undocumented immigrant community in police activities.
Recommendation for Council action, SUBJECT TO THE CONCURRENCE OF THE MAYOR:
RESOLVE to include in the City's 2007-08 Federal Legislative Program OPPOSITION to any legislative provision or amendment which would prohibit or pre-empt local "separation" ordinances and similar local regulations such as the LAPD's Special Order 40 which are effective law enforcement tools which prevent victimization of undocumented immigrants as well as foster participation and involvement of the undocumented immigrant community in police activities and increase the LAPD's ability to protect and to serve the entire community.
Council members Eric Garcetti, Ed Reyes, and Dennis Zine offered the resolution, and Tony Cardenas, Wendy Greuel, Janice Hahn, José Huizar, Tom LaBonge, Bernard Parks, Jan Perry, Bill Rosendahl, Jack Weiss, and Herb Wesson approved. Greig Smith voted no without comment.