Metropolitan News-Enterprise


Thursday, June 18, 2009


Page 3


Court of Appeal Upholds Validity of LAPD Immigration Directive


By a MetNews Staff Writer


A Los Angeles Police Department directive that prohibits officers from approaching an individual for the sole purpose of inquiring about the person’s immigration status is not—on its face—preempted by state or federal law, the Court of Appeal for this district ruled yesterday.

Div. Three affirmed Los Angeles Superior Court Judge Rolf Treu’s ruling granting summary judgment to LAPD Chief William Bratton and city police commissioners in an action brought by civil activist Harold Sturgeon.

Sturgeon, represented by Sterling P. Norris of Judicial Watch, brought a taxpayer action seeking to enjoin the further implementation of Special Order 40, as the directive is known. It has been in effect since being promulgated by then-Chief Daryl Gates in 1979.

The plaintiff claimed the directive is preempted by 8 U.S.C. Sec. 1373—which bars state and local governments from restricting the exchange of immigration information among local, state, and federal officers—as well as by Penal Code Sec. 834b, which requires local law enforcement agencies to cooperate with federal immigration authorities.

In granting summary judgment, Treu ruled that the plaintiff failed to establish that SO40 is invalid under all circumstances, that Sec. 1373 does not preempt the directive, and that Sec. 834b is itself preempted by federal law.

The trial judge was correct “in all respects,” Justice Walter Croskey wrote for the Court of Appeal.

Croskey rejected the contention that Sturgeon had presented evidence that SO40 is applied in a manner preempted by the statute. While deposition testimony suggested that some officers might apply the directive in a manner not anticipated by its literal language, based on hypotheticals posed by plaintiff’s counsel, there was no evidence that any officer had ever applied SO40 in such a manner, disciplined a subordinate for violating the officer’s interpretation of SO40, or directed subordinates to act in such a manner.

On its face, Croskey said, nothing in SO40 prohibits an officer from exchanging immigration information with Immigration and Customs Enforcement. The jurist rejected the plaintiff’s argument that by limiting the circumstances under which an officer may obtain information about a person’s immigration status, the LAPD was restricting the sending of that information.

If that was what Congress intended, the justice wrote, “it could have expressly so legislated.”

The defendants were represented on appeal by Deputy City Attorney Paul L. Winnemore. Immigration advocates who intervened were represented by Hector O. Villagra, Belinda Escobosa Helzer, Mark Rosenbaum and Ahilan Arulanantham of the ACLU Foundation of Southern California.

The case is Stugeon v. Bratton, B209913.


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