Judge dismisses suit challenging Special Order 40
LA Daily News Wire Services
Article Last Updated: 06/25/2008 11:24:31 AM PDT
A Los Angeles judge dismissed a taxpayer lawsuit today that sought to repeal a long-standing directive prohibiting Los Angeles police officers from asking arrestees about their immigration status.
Los Angeles Superior Court Judge Rolf M. Treu sided with the city and the American Civil Liberties Union, which claimed there were no triable issues raised in the suit.A judge is scheduled to rule today on a challenge to a taxpayer suit that seeks to repeal a long-standing directive prohibiting Los Angeles police officers from asking arrestees about their immigration status.
Treu was asked by the city and the American Civil Liberties Union to dismiss the lawsuit on grounds there are no triable issues. He heard arguments on the motion June 10 and has had it under submission since then.
Los Angeles resident Harold P. Sturgeon filed suit in May 2006 against police Chief William J. Bratton and members of the Police Commission, seeking to have Special Order 40 declared unlawful.
In court papers, Sturgeon's lawyers call Special Order 40 “essentially a `Don't Ask, Don't Tell' policy regarding illegal aliens.”
Sturgeon is requesting that a permanent injunction be issued to prevent taxpayer money from being used to enforce it. He and other critics say the 28- year-old mandate from the Los Angeles City Council hampers the LAPD's ability to exchange information with federal immigration officials.
The order is intended to avoid discouraging illegal immigrants from reporting crimes and assisting police.
In their court papers, lawyers for the City Attorney's Office maintain the directive does not prevent the LAPD from working closely with federal Immigration and Customs Enforcement officials.
“There is no evidence … to show that ICE has ever complained that they have not had the assistance of LAPD, or that LAPD has not come when they are called,” the city's court papers state.
In their court papers, ACLU lawyers maintain Special Order 40 is consistent with federal law and not in conflict with it.
Paul J. Orfanedes of Judicial Watch Inc., one of Sturgeon's lawyers, maintains the order is a misapplication of his client's taxpayer dollars. He also contends the order is being applied in a broader way than the text of it allows.
Deputy City Attorney Vibiana M. Andrade said Sturgeon's lawyers have not shown any pattern of unconstitutional enforcement of Special Order 40.
Treu ruled in September 2006 that four groups that assist undocumented immigrants can intervene as defendants in the case. They are working with the City Attorney's Office to keep Special Order 40 on the books.
The ACLU of Southern California represents the four community groups: Break the Cycle; Los Jornaleros (The Day Laborers); El Comite de Jornaleros (The Committee of Day Laborers); and El Instituto de Educacion Popular del Sur de California (The Institute of Popular Education of Southern California).
ACLU attorney Hector O. Villagra said after the June 10 hearing that he was encouraged by the tenor of Treu's questions, many of which focused on conflicts in law and whether Sturgeon believes the order as a whole is unconstitutional, or only when applied in certain instances.
If Treu denies the city's motion and the case goes to trial — now tentatively set for Monday — the city has listed Chief William Bratton on its list of possible witnesses.
Sturgeon's lawyers have included KABC AM morning radio host Doug McIntyre — who did an on-air interview with Bratton in March 2007 — on their witness list. McIntyre has been a strident critic of what he maintains is the lax enforcement of immigration laws.
Last year, the Los Angeles City Council went on record against any future federal legislation that would force the Los Angeles Police Department to change its policy on identifying undocumented immigrants.
Debate over the issue was reignited earlier this year when Jamiel Shaw Jr., a high school football star, was killed — allegedly by a reputed gang member who was in the country illegally. The suspect, Pedro Espinoza, had been released from county jail the day before the slaying.
Special Order 40 did not apply in that case because Espinoza's original arrest was outside the city of Los Angeles and he was housed in
