On Monday night, as protestors and speakers sounded off on the federal government's Secure Communities immigration enforcement program during a town hall meeting in Los Angeles, one recurring theme involved a local police policy enacted more than three decades ago.
"The trust factor is undermining Special Order 40," said Marielena Hincapié of the National Immigration Law Center, a legal advocacy organization, to a panel assembled by the Department of Homeland Security to gather input on the controversial fingerprint-sharing program. In the crowd, protesters held a large black mock coffin reading "RIP Special Order 40."
What is Special Order 40, and how does Secure Communities conflict with it, if it does? And how does Secure Communities compare with 287(g), an older federal-local law enforcement partnership used in jails to identify deportable immigrants? It's complicated, but the workings of all three are worth a look.
Special Order 40 is a policy enacted by former LAPD Chief Daryl Gates in late 1979 that essentially bars local law officers from enforcing federal immigration laws. Secure Communities, which began rolling out in 2008, allows the fingerprints of people booked into local police jails to be shared with immigration agents. The federal program's critics have long held that the mandatory partnership undermines trust between immigrant communities and local authorities, potentially impeding police work.
At Special Order 40's core was an acknowledgement that the cooperation of undocumented immigrants was critical to the department's "ability to protect and serve the entire community." From a department memo dated November 27, 1979:
The Department is sensitive to the principle that effective law enforcement depends on a high degree of cooperation between the Department and the public it serves. The Department also recognizes that the Constitution of the United States guarantees equal protection to all persons within its jurisdiction.
In view of those principles, it is the policy of the Los Angeles Police Department that undocumented alien status in itself is not a matter for police action. It is, therefore, incumbent on 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.
Officers were directed that they "shall not initiate police action with the objective of discovering the alien status of a person." The order further directed that officers "shall not arrest nor book persons for violation of Title 8, Section 1325 of the United States Immigration Code (Illegal Entry)."
While idea of the order was to foster police cooperation from a fearful and vulnerable population, it has had its vocal critics. Special Order 40 came under fire especially after the 2008 murder of Jamiel Shaw, a black high school football player shot by a Latino gang member who was undocumented.
Enter Secure Communities, which ICE has stated is intended to ferret out deportable criminals. But the program has landed many others in deportation proceedings, among them minor traffic violators and people without a criminal record.
Here is how Secure Communities works in a nutshell, from ICE:
When state and local law enforcement arrest and book someone into a jail for a violation of a state criminal offense, they generally fingerprint the person. After fingerprints are taken at the jail, the state and local authorities electronically submit the fingerprints to the Federal Bureau of Investigation (FBI). This data is then stored in the FBI's criminal databases. After running the fingerprints against those databases, the FBI sends the state and local authorities a record of the person's criminal history.
With the Secure Communities program, once the FBI checks the fingerprints, the FBI automatically sends them to DHS, so that U.S. Immigration and Customs Enforcement (ICE) can determine if that person is also subject to removal (deportation). This change, whereby the fingerprints are sent to DHS in addition to the FBI, fulfills a 2002 Congressional mandate for the FBI to share information with ICE, and is consistent with a 2008 federal law that instructs ICE to identify criminal aliens for removal. Secure Communities does not require any changes in the procedures of local law enforcement agencies or jails.
If the person has been previously encountered and fingerprinted by an immigration official and there is a digitized record, then the immigration database will register a “match.” ICE then reviews other databases to determine whether the person is here illegally or is otherwise removable.
On Monday night, I spoke briefly with LAPD deputy chief Jose Perez, Jr., who was at the meeting. He explained that one reason some non-criminals wind up at local booking facilities getting fingerprinted is because they must be brought in when they can't produce identification for police, say during a traffic stop. Some people are also being fingerprinted in the field as mobile biometric technology rolls out, though the LAPD has yet to implement this department-wide.
Does Secure Communities cast any wider of a net than other federal-local immigration enforcement programs, like the 287(g) program that Los Angeles County jails participate in? That program, which provides local authorities with ICE training, is used by the county to identify deportable jail inmates.
There are key differences between the two. One is that under 287(g) in Los Angeles, the interviews with inmates take place post-conviction, as opposed to at the booking stage under Secure Communities. Also, nationwide, the scope of the voluntary 287(g) is relatively minimal. As of late last year, there were only 69 law enforcement agencies participating in 24 states.
Secure Communities, on the other hand, is by now operating in more than 1,500 jurisdictions. ICE, which recently rescinded the state contracts agreeing to the program, has emphasized that Secure Communities is mandatory and intends to continue rolling it out nationwide.