Judge throws out lawsuit against LAPD rule on immigration queries

The slaying of Jamiel Shaw II put a spotlight on Special Order 40, which limits when officers can ask about immigration status. The jurist rules the order doesn’t conflict with federal or state law.
By Joel Rubin
Los Angeles Times Staff Writer

June 26, 2008

A judge Wednesday threw out a lawsuit filed by a Los Angeles resident who wanted to repeal a long-standing LAPD order that restricts when police officers may ask people about their immigration status.

Los Angeles County Superior Court Judge Rolf M. Treu, granting a motion from the city and the American Civil Liberties Union, said Harold Sturgeon had failed to prove that Special Order 40 was in conflict with federal and state laws that dictate the flow of information between local and federal agencies regarding people’s immigration status.

Sturgeon sued the LAPD in 2006 in an effort to overturn the nearly 3-decade-old order, which prohibits officers from detaining someone solely for the purpose of determining whether he or she is in the country illegally. The order, implemented in 1979 by then-police Chief Daryl F. Gates, is aimed at encouraging illegal immigrants to assist police in cases by ensuring them that their cooperation will not put them at risk.

Sturgeon acknowledged he had no personal experience with the order, but instead brought the lawsuit as a city taxpayer, who argued that his taxes were being used to further an illegal endeavor.

“We’re very pleased,” said Hector Villagra, an ACLU director, after the ruling. For decades, “the Police Department has struck an important balance between public safety and the enforcement of federal immigration law. It has tried to maintain an equilibrium that would allow undocumented witnesses and victims of crime to feel confident that they can come to the police. . . . That balance has been upheld today.”

In court papers, Sturgeon’s lawyers called Special Order 40 “essentially a ‘don’t ask, don’t tell’ policy regarding illegal aliens.” They tried to persuade Treu that the LAPD policy unlawfully restricted officers’ ability to share information with federal immigration officials — a claim that city and ACLU attorneys rebutted.

The judge rejected the gambit, saying the order did not prohibit LAPD officers from communicating with federal authorities. Paul Orfanedes, an attorney for Judicial Watch, the group that argued the case for Sturgeon, said he was “disappointed” with the ruling but declined to say whether he expected his client to appeal.

Wednesday’s ruling had a particularly far-reaching effect because scores of police departments across the country have followed the LAPD in implementing similar policies.

Sturgeon is not the only one to have turned to the courts on the issue. Another lawsuit challenges Special Order 40 on the grounds that it violates an obscure state code that appears to require local police to report to federal authorities the names of illegal immigrants arrested on suspicion of drug trafficking or possession. That case is on hold until an appeals court rules whether the state code is constitutional, said attorney David Klehm, who drafted the litigation.

In recent months, there has been heightened political and public attention on Special Order 40. The policy came under intense scrutiny after the March killing of high school athlete Jamiel Shaw II. Shaw was allegedly gunned down by a reputed gang member who was in the country illegally. The suspect, Pedro Espinoza, had been released from jail the day before the slaying.

Opponents of the order, led by Shaw’s parents, seized on the slaying, saying the boy would not have been killed had police not been hamstrung by the LAPD’s policy. The claims were inaccurate because Espinoza had been arrested in another city and held in a county facility, but they nonetheless sparked intense public debate.

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