Much Mythmaking About Special Order 40
Earl Ofari Hutchinson

A beleaguered LAPD chief William Bratton after weeks of being pounded and badgered by assorted right-wing talk radio show yakkers, and anti-immigrant rights groups, immigrant rights groups, and the L.A. City Council says that he’ll soon tell what LAPD officers can and can’t do in regards to the much attacked, much defended and much misunderstood Special Order 40. The controversy and the muddle has spawned much mythmaking about what the Order actually says and what it allows officers to do.
The Order specifically says that LAPD officers can’t initiate any “police action with the objective of discovering the alien status of a person,” and with the objective of arresting or booking a person for “illegal entry” into the United States.

In plain English, the Order and the policies and procedures that the LAPD top brass put in place decades back to under gird how the Order is interpreted and enforced on the streets prohibits officers from asking a person about his or her alien status and from notifying the ICE about a person’s undocumented status unless the person has been arrested.

That line has been widely cited by those that want the Order dumped and has stirred the anguish of Jamiel Shaw Sr., whipped up frenzy among anti-immigration reform activists, and gave right wing talk hosts the wedge they needed to pound the city council and Bratton and sneakily push their anti-immigration reform agenda. The part of the Order that they have sloppily misread or deliberately ignored never forbade LAPD officers from participating in task force investigations, responding to requests from the ICE for information regarding suspected illegal aliens, or assisting ICE agents in the execution of arrest warrants.

That’s just the start of the public and political mythmaking on the Order. It does not bar an LAPD officer from notifying ICE of the immigration status of a person arrested for a crime if the officer learns of that information. Further, nothing in the Order bars an officer who is investigating an individual for criminal activity other than an immigration violation from asking that person about his or her immigration status and then advising ICE.

The Order was never intended to prevent officers from not checking whether anyone being investigated for or arrested for a criminal offense, let alone arraigned and held in the county jail pending prosecution, from notifying ICE about the possible illegal status of the suspect. Even on the hotly disputed and debated point that the LAPD officers can’t ask a person who has been arrested for a crime about his or her alien status, there is nothing in the Department’s policies and procedures that explicitly prohibit that.


There’s nothing in the policies and procedures of Special Order 40 that prohibits LAPD officers from interacting with ICE agents for investigative purposes. This includes the issue that has caused the most confusion and inflamed public opinion and that’s officers providing the names of known gang members to the ICE in response to a request from the agency for information. There is also nothing in Special Order 40 that forbids LAPD officers from joining in a task force with ICE where the feds are investigating criminal violations of immigration laws at the same time that the LAPD is investigating violations of state criminal laws relating to say drug dealing or violent crimes. LAPD officers are certainly not prohibited from assisting the ICE to arrest a gang member for whom a warrant had been issued.

Here’s an added check list of what LAPD officers can do to nail gang members and violent criminals that are suspected illegals. They can:
*Respond to requests from ICE to provide information regarding an individual’s criminal activities or whereabouts.

*Assist ICE to execute arrest warrants for violations of the immigration laws.
*Provide tactical assistance when ICE is planning to conduct any operation that will prevent criminal acts and violence.

*Can provide the Los Angeles County Sheriff’s Department with the names of gang members or those suspected of involvement in criminal acts that are suspected illegals to ICE once the criminal investigation process has started.
The problem is not and never has been that Special Order 40 ties the LAPD in such tight knots that it has been hapless and ineffective in dealing with violent gang members who may be illegals. The problem is the muddle in interpretation and enforcement of the Order. LAPD officers have gotten confused and mixed signals from LAPD officials about what they can and can’t do on the streets with criminals suspected of being illegals.

As it turns out they can do a lot to get them off the streets and eventually out of the country. It doesn’t take a full blown, divisive, and racially polarizing campaign fueled by myths and misunderstanding about the Order to do that.

Earl Ofari Hutchinson is an author and political analyst. His new book is The Ethnic Presidency: How Race Decides the Race to the White House (Middle Passage Press, February 2008).