Open letter to Police Commissioner David S. Cunningham, III
October 13, 2002
Dear Commissioner Cunningham:
I watched the video of your interview by Leslie Dutton of "Full Disclosure." Allow me to respectfully make some comments.
You kept repeating that you want to protect illegal aliens so that they won't be afraid to testify as victims or witnesses against criminals. The problem is that Special Order 40 ends up protecting the criminals and gang members themselves, while not achieving Special Order 40's objective anyway. I'm sure that you know very well that the major reason that illegals (and citizens) don't report crime isn't because they are afraid that the immigrant friendly LAPD will turn them over to the ICE. They don't report crime because they are afraid of witness intimidation by the gang members and criminals!
I believe that the safety and security of the citizens outweighs the concerns of protecting illegal aliens and that Special Order 40 should be repealed altogether. But even if you disagree with me on repealing Special Order 40 altogether, the commission is empowered to have Chief Bratton amend Special Order 40 so that it doesn't apply to illegal alien "innocent victims or witnesses." But even if Special Order 40 were so amended, most illegals who are witnesses and victims still wouldn't report crime anyway because they fear intimidation by the criminals. But as you said, police officers can make judgement calls and turn illegal alien gang members who make up a significant part of the gang population, who are predisposed to criminal activity, over to ICE even if there is no warrant or charge against them. To wait until they commit their next crime before reporting them to ICE (which is rarely done anyway) is like buying insurance after the accident.
As we all well know, Mayor Hahn and now City Attorney Delgadillo have no problem launching injunctions on gang members who do not have warrants against them nor have they been charged with a crime, which if tested in the courts would probably be found unconstitutional. But tuning gang members whose crimes are difficult for the prosecution to prove, over to the ICE solely on the charge of being in the U.S. illegally is NOT unconstitutional. (See US_vs_Vasquez-Alvarez)
As a former Van Nuys block captain, I know, as you must, that the LAPD gang units have complete dossiers on gang members (terrorists) which indicates their immigration status.
In June, 1997, an L.A. Times series about the notorious 18th Street Gang said that according to a confidential state Department of Justice report, that 60% of that gang's 20,000 members were illegal aliens. This should not be surprising because, as the L.A. Times put it, young (illegal alien) immigrants are the prime recruiting targets. Special Order 40 is good news for these gang members who roam the streets without fear of the police while terrorizing law abiding neighborhood residents who are intimidated into not getting involved in police matters.
In the 1930's, the infamous gangster, Al Capone, could never be convicted of murder because intimidated witnesses fearing for their lives, would not come forward. It would not have mattered if those witnesses who may also have been criminals, would have been given immunity -- they still would not have come forward. After finding they could not pin anything on Capone, Chicago Police working with the FBI, finally put him in jail on the unlikely charge of income tax evasion -- not the worst thing to be convicted of, but better than nothing. For the same reason, if Special Order 40 was modified, the LAPD in conjunction with the ICE would have a powerful tool to legitimately arrest and turn illegal alien gang members not charged with any crime, over to the ICE for deportation.
One of the "why bother" cop-outs by law enforcement on this issue, is that criminals who are turned over to ICE come back to Los Angeles anyway -- so why bother? Gang members return to L.A. because they know that the LAPD leadership doesn't care if they do.
Instead of passing the blame buck to the ICE, law enforcement should publicly lobby the ICE to do their job as you had the chance to do, but didn't, when you spoke to Tom Ridge of the Department of Homeland Security.
On Monday, December 16, 2002, I, as an ex-candidate (for secession) and a group of about 60 other invited ex-candidates attended a "town hall" meeting at the Encino Community Center organized by Mayor Hahn. In speaking to Mayor Hahn, I pointed to Sheriff Baca's data showing that 23 percent of the felons in the county jail (over 38,000) are illegal aliens who could have been deported before they committed their crimes. His answer? He didn't want to create panic in the Hispanic community.
Not only does our city leadership continue to pass the buck to ICE and the federal government, they fight them. When
HR2671, the Clear Law Enforcement for Criminal Alien Removal Act to force local enforcement to help ICE identify and deport illegal alien criminals, none other than ex-cop Councilman Dennis Zine organized the opposition to the bill.
You say that the commission's policies are not "politically correct." I think otherwise. Gang members are not innocent victims or witnesses. So when you say that you're looking after "innocent" aliens, I can only conclude that you are reflecting Mayor Hahn's politically correct reasoning to give illegal alien gang members free passes.
When the activists protested that the CRASH units had violated Special Order 40 by deporting gang members, the police commission assigned an independent panel which published a 20 page report titled Report of the Rampart Independent Review Panel to the Los Angeles Board of Police Commissioners Concerning Special Order 40. The panel, after discovering that the term "Special Order 40" did not actually exist in the updated current police manual, could not conclude that the CRASH Unit violated the non-existent Special Order 40. They wrote on page 5, note 8: "Thus, lacking probable cause to arrest a gang member lawfully stopped on the basis of 'reasonable suspicion,' an officer could theoretically ask about the member's immigration status and then notify INS without violating the Manual as written."
But for the panel to have simply said that the CRASH Unit, apart from other egregious violations of gang members rights, did not violate the rights of gang members by turning them over to the INS, would have been politically incorrect and drawn a fierce reaction from the activists. The panel had to come up with some sort of politically correct rationalization to uphold the de facto existance of Special Order 40 so as not to upset the activists. They wrote on page 2: As articulated by LAPD officials to members of the Panel, the Department’s policies and procedures resulting from Special Order 40 are more restrictive than as written in the Department’s Manual, virtually admitting that Special Order 40 did not actually exist. Note two key buzz phrases: articulated and resulting from Special Order 40. Since the police manual makes no reference to Special Order 40, the panel resurrected it by saying it was articulated -- meaning that Special Order 40 is a word of mouth mandate. Moreover, the panel fails to say what authority articulated the non-existent Special Order 40.
I'm sure that you know that after former Chief Darryl Gates implemented the original Special_Order_40 in 1979, according the panel's report, on Page 4, note 6, "The requirements pertaining to the sending of arrest reports to DHD (Detective Headquarters Div) and the INS were eliminated in Special Order 18 issued on September 5, 1980 by Chief Gates" In fact, the term "Special Order 40" ceased to exist in the LAPD police manual from that time on. There are only two Sections in the current Police Manual pertaining to illegal aliens, Volume 1, Section 390 which states: Undocumented alien status in itself is not a matter for police action..., and Volume 4, Section 264 which states: Officers shall not initiate police action where the objective is to discover the alien status of a person. Officers shall neither arrest nor book persons for violation of Title 8, Section 1325 of the United States Immigration Code (Illegal Entry).
Nowhere in the manual does it prohibit police officers from inquiring into gang members' immigration immigration status based on "reasonable suspicion" (of violating Federal Law) and turning illegal alien suspects over to the ICE -- even if they haven't been charged with a crime.
But our politically correct leadership would rather fight gang murders with candle light vigils and public declarations of outrage, than doing the right thing and sending illegal alien criminals back to where they came from.
Cordially,
Hal Netkin
www.LAwatchdog.com
To view 20 page Report of the Rampart Independent Review Panel on Special Order 40, Click here :
To view Police Manual table of content links (slow download for dialup), Click here
