Attorney General Jeff Sessions' announcement that the federal government would sue the state of California over three laws protecting undocumented immigrants naturally feeds into a classic liberal vs. conservative storyline, and the way California politicians responded mirrors that as well. If Sessions brought culture war, their focus was less culture, more war.
“This is basically going to war against the state of California," said Gov. Jerry Brown. House Minority Leader Nancy Pelosi, who represents a San Francisco district that is among the nation's most liberal, added, “We will fight this sham lawsuit and will fight all cowardly attacks on our immigrant communities." State Senate leader Kevin de León, who is running against Dianne Feinstein in the Democratic primary for U.S. Senate this year, responded on Twitter:
Although the political positions are intensely polarized, the actual history of California’s hands-off immigration-enforcement policy posture tells a very different story. It began in 1979 in Los Angeles, by far the largest city in the state, when then-LAPD Chief Daryl Gates, a conservative icon known as a pioneer in police militarization -- he created the first SWAT team in 1965, and employed it against Black Panthers and other radical groups -- issued something called Special Order 40. The order made clear that it was "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 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.”
Special Order 40 went on to state, “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.” It was, in essence, a recognition that police needed the trust of witnesses and crime victims in order to enforce the law, and that they needed to enforce the law equally on behalf of everyone who lived in L.A.
Gates' order further stated that police officers could not "initiate police action with the objective of discovering the alien status of a person," and were not supposed to arrest or book anyone for violations of the U.S. Immigration Code provisions regarding illegal entry. Special Order 40 did not, however, entirely prohibit LAPD involvement in the deportation of criminal suspects, stating that when "an undocumented alien is booked for multiple misdemeanor offenses, a high grade misdemeanor or a felony offense, or has been previously arrested for a similar offense," the LAPD was authorized to notify immigration authorities (in those days INS, the predecessor to ICE).
These two key directives explain why Gates and other defenders of Special Order 40 repeatedly defended it as presenting a balanced approach. Gates did more than defending it while serving as chief. When it came under fire in 2008, for an incident that happened in another jurisdiction — 16 years after Gates had stepped down — he returned to City Hall to defend it in the same terms before the L.A. City Council’s Public Safety Committee. “When Councilman Zine asked me about Special Order 40 and whether or not it prohibited police officers from doing something about gangs, I said absolutely not. It doesn't," Gates told them. “Never, ever, ever was Special Order 40 designed, written to keep law enforcement from enforcing the law against a criminal."
This is all the more remarkable, given who Daryl Gates was. He was much more a J. Edgar Hoover, paranoid-style, enemies-list conservative than a Barry Goldwater one. When Gates died, Pulitzer Prize winner David Cay Johnston — who covered the former chief for the Los Angeles Times in the early 1980s — penned a revealing look back, "Daryl Gates, the Ruthless L.A. Police Chief Who Ran an International Spying Operation on the Side."
Gates didn’t invent the LAPD’s "Red Squad," the Public Disorder and Intelligence Division, but he made obsessive use of it. In 1984, fittingly enough, the city ended up paying a $1.8 million settlement for the COINTELPRO-style harassment, surveillance and infiltration of the city’s progressive movement, though that was hardly its only focus. As Johnston recalls, Gates had quite a diverse list of targets, some of which he even wrote about in his autobiography:
When Daryl Gates ran the LAPD from 1978 to 1992 he also ran a worldwide political spying operation. And he lavished time on it, sometimes several hours a day, including all the dossiers and reports he got on the lawful activities of L.A. leaders, elected and not, as well as political and religious groups he suspected were up to no good … .
Locally, people of interest had their homes, offices and cars burglarized. Some were tailed, sometimes quite openly to intimidate them, to make sure they knew they were being watched.
But Johnston would probably never have investigated any of that if Gates hadn’t spied on him as well. “I was skeptical, even dismissive, of assertions by people associated with the ACLU that the LAPD was engaged in massive political spying,” he recounted. “Then one evening in fall 1980 it all changed.”
Johnston encountered Gates at a social event, and “Gates began recounting to me a blind date I had been on a few nights before, down to the details of what we ordered at La Nicola on Sunset near East Hollywood,” he recalled. It was obviously Gates’ way of scaring him off, but it backfired, big time. That makes clear what kind of police chief Gates was, but he was also more closely associated with Special Order 40 than anyone else. Why else would he testify in its defense 16 years after his retirement?
To be sure, Special Order 40 wasn’t perfect, especially when it came to implementation. Major breakdowns, like the Rodney King uprising and the Rampart scandal brought evidence of systemic violations to light. The latter involved widespread corruption within an LAPD anti-gang unit that implicated more than 70 officers, costing the city an estimated $125 million in settlements and placing the LAPD under Department of Justice oversight via a consent decree. In addition to two major oversight reports, there was a special report concerning Special Order 40, issued in 2001.
It concluded that the order “articulated policies and procedures” that were not reflected in the LAPD manual, and were not supported by specialized training or adequate record-keeping. In short, its enforcement was severely lacking, which resulted in collaboration between the LAPD and the INS far beyond what Special Order 40 allowed. Another key finding, especially noteworthy in the contemporary context, was that “Special Order 40 policies and procedures strike an appropriate balance that meets LAPD’s law enforcement needs, protects the rights of the immigrant communities, and allows for appropriate assistance by LAPD to the INS.”
In elaborating that finding, the report made a powerful argument for the pragmatic wisdom of Special Order 40.
Officers with every California law enforcement agency interviewed for this report, including members of the LAPD, indicated that they do not advocate training their officers to enforce the immigration laws. They believe that the time required for the training and the effort that would be required to capture undocumented persons would have an adverse impact on law enforcement generally. ...
Special Order 40 seeks to ensure that the entire community, even undocumented persons who are victims or witnesses, will help the police solve crime. On balance, law enforcement considers it to be more important to solve felonies and high-grade misdemeanors than to enforce the immigration laws, which for first time offenders is only a low-grade misdemeanor. All law enforcement officers interviewed for this report agreed that it is crucial for effective law enforcement that victims and witnesses of crime feel safe with the police. Identification of local police with immigration enforcement could lead some residents to avoid interaction with the police, even when the resident is a victim of or witness to a crime. Victims will not come forward if they believe that, in response to their calls, the INS will appear at their doors. Witnesses are less likely to testify as part of criminal prosecutions if they suspect that INS agents await them when they complete their testimony. Although immigrant trust of the LAPD remains an issue, many long-time LAPD officers stated that there is a marked difference in the attitude of the immigrant community respecting the LAPD since Special Order 40 was issued.
These are not the views of undocumented immigrants or their advocates. These are the overwhelming views of front-line officers responsible for the enforcement of our laws and the protection of public safety. Their views tend to be more conservative than the public at large. Yet they have fully supported Special Order 40. It helps them keep all of us safe.
Gates' 1979 order became especially important for Los Angeles in the 1980s as refugees from America’s wars in Central America flooded into the city. The experience of that period formed a foundation for further developments in recent years, particularly under current Chief Charlie Beck, who joined the force shortly before Special Order 40 was adopted, and had intimate knowledge of how it had improved policing. Tim Rutten explained this in a 2009 Los Angeles Times op-ed:
The ever-present threat of deportation, compounded by the fact that many came from countries where badges and uniforms were synonymous with corruption and brutality, made the newcomers wary of any governmental or civic official, and particularly police officers. Gates and others quickly realized that communities rendered opaque to law enforcement by fear were perfect incubators for crime and also were places where immigrants themselves could be victimized with impunity. Special Order 40 assured the new Angelenos that they could report crimes or cooperate as witnesses without being interrogated about their immigration status. Not every citation would escalate into what was -- in those years -- a potentially deadly deportation.
As Rutten makes clear, Beck took a decidedly more progressive view of police-immigrant relations than Gates, but Special Order 40 provided a common foundation. Here’s how Beck put it at a community forum:
I believe in Special Order 40. I believe in not just the words on paper, but the spirit of Special Order 40. I think that, especially in Los Angeles, we have to represent everybody, that everybody has the right to quality police service, regardless of [immigration] status. I don't think that we should be an arm of the federal government in enforcing immigration laws specifically. However, if we make a legal arrest on another charge, and a criminal is monitored by Immigration, then they should have access to him.
As Rutten went on to say, that sentiment fit with Beck's "oft-expressed belief in what he calls ‘constitutional policing.’ It's a recognition that our immigrant communities -- like every other neighborhood -- are filled with lives to be lived rather than with problems to be solved.”
It’s said that more than 100 languages are spoken in Los Angeles, which opens another window onto why this kind of attitude is absolutely necessary. When Special Order 40 was promulgated, 27 percent of L.A. residents were immigrants, and today the figure is about 40 percent. In Los Angeles County (which is larger than the city), there are more than 400,000 undocumented residents. Turning the LAPD into an arm of ICE would make the cops' core mission impossible. Continuing cooperation as defined under Special Order 40 was far more in keeping with their purpose.
Of course, times change and new lessons are learned. As described in a front-page L.A. Times story from 2012, Beck's first-hand experience of Special Order 40’s impact was supplemented by his experience serving under William Bratton, who was brought in from New York to rebuild the LAPD under the post-Ramparts consent decree. “Bratton made many changes as chief, but Beck was particularly taken by his aggressive effort to rebuild the LAPD's broken relationship with the African American community, which over and over Bratton said was a cornerstone to his success,” the article explained:
Beck carried the lesson with him when he replaced Bratton three years ago as chief of the nation's second-largest police force. With nearly half of the city's population Hispanic and the federal government's aggressive efforts to identify and deport illegal immigrants sowing fear in immigrant communities, Beck believed that his success or failure as chief rested heavily on whether he could replicate Bratton's success -- but this time with Latinos.
He took action to make it easier for unlicensed drivers -- who are disproportionately undocumented immigrants -- to avoid having their cars impounded, and then spoke out in favor of issuing driver's licenses to undocumented residents. Beck also took a proactive response to the Secure Communities program, which demands that local law enforcement send fingerprints of everyone arrested to federal immigration officials. This obviously facilitates deportation well beyond the serious criminal suspects targeted by Special Order 40. Beck announced that the LAPD wouldn’t honor detainer requests for any suspect arrested for minor crimes without a violent criminal past. While Beck expresses openly pro-immigrant views, his official actions are dictated by experience:
"It's not so much that I am a dove on immigration," he said. "It's that I'm a realist. I recognize that this is the population that I police. If I can take steps -- legal steps -- to make them a better population to police then I will. ... I do have sympathy for their plight, but my actions are not based mainly on that. It makes absolute law enforcement sense. Any one of these things I've done is directly tied to public safety."
There should be no doubt that California’s politicians standing up to Trump and Sessions in 2018 are doing so based on very different political viewpoints. If you want to paint this as a liberal vs. conservative culture war, that makes apparent sense. But on the ground, where police and community residents interact constantly every day, the overriding concerns that drive California’s law-enforcement priorities remain overwhelmingly practical in foundation.
Beck made that clear, immediately after Trump was elected in November 2016, as reported in the Washington Post:
"We're going to maintain the same posture we always have," Beck told KNX-AM 1070 on Monday. "We don't make detentions or arrests based solely on status, whether that's immigration status or any other status."
"If the federal government takes a more aggressive role on deportation, then they'll have to do that on their own," he continued.
Beck called any effort to arrest and deport people a "monumental task" and estimated that there are 500,000 undocumented residents in the city of Los Angeles alone. "This is a population we police by creating partnerships, not by targeting them because of their immigration status," he added.
At least one of the politicians involved in this L.A.-D.C. dispute had the good sense to touch base with the practical side of things.
If this conflict is really about public safety, then the result is clear. Los Angeles' long record with Special Order 40, under conservative and liberal top cops alike, tells us it’s a winner for all involved.