Ten Years Of LAPD Directives Regarding Cooperation With ICE — There Have Been Four Versions Of The Rules Since 2009 — But As Of October 2018 There Are Still Specified Circumstances Under Which They Will Still Honor ICE Detainer Requests — And Hold People So That ICE Can Take Custody Of Them

I recently published a set of notices issued by the LAPD Chief of Detectives over the years. There’s a lot of interesting stuff in there, including the records on which this story is based. Today we have a set of four notices, the earliest from 2009, explaining how LAPD is to interact with Immigration and Customs Enforcement with respect to undocumented prisoners in the context of Darryl Gates’s famous Special Order 40, which forbade officers from questioning anyone with the sole purpose of determining their immigration status. Here are links to the four notices, each of which is superseded by the subsequent one:

CoD Notice 8.4 — July 1, 2009
CoD Notice 1.8 — December 21, 2016
CoD Notice 1.8 — May 17, 2017
CoD Notice 1.8 — October 12, 2018

This recent flurry of revisions was required by the California TRUST Act, signed into law in October 2013 which, according to the LA Times, “prohibits state and local law enforcement from holding people longer than 48 hours for federal immigration agents — unless they’ve been convicted of certain crimes, most of them serious or violent.” These directives codify how this requirement is to be implemented by actual LAPD officers with respect to actual prisoners.

The detailed rules explain when they’re allowed to look up immigration status information, what kinds of information they’re allowed to act on, how they’re allowed to act based on the information, under what circumstances LAPD will hold prisoners for transfer to ICE, and so on. The rules are technical and I am in no way qualified to interpret, explain, or even opine on their meaning, but these rules are so important and so timely that it’s clearly necessary to publish them anyway. I know there are people out there who need this information.

There’s a transcription of the most recent one, which explains LAPD’s current policy, below. I will say in closing, though, that given the nightmarish conditions, the sexual torture, the murder, going on in ICE’s concentration camps, I cannot actually imagine any circumstances whatsoever in which LAPD, or anyone, ought to turn anyone over to them, no matter how terrible their crimes, and the list of crimes for which they can be turned over includes forgery and suborning perjury and things on that level, none of which are worth putting someone in Dachau over.1 It is clearly time for a fifth revision of this policy.


CHIEF OF DETECTIVES NOTICE 1.8
October 12,2018

TO: All Concerned Personnel
FROM : Chief of Detectives
SUBJECT: ENFORCEMENT ACTIONS RELATED TO UNDOCUMENTED PERSONS – REVISED; AND, GUIDELINES FOR ENFORCEMENT ACTIONS RELATED TO CRIMINAL IMMIGRATION OFFENSES

This Notice supersedes Chief of Detectives Notice titled, Enforcement Actions Related to Undocumented Persons, dated May 17,2017.

This Notice provides guidance to Los Angeles Police Department personnel on enforcement actions related to persons wanted for federal immigration crimes. The Department maintains its steadfast commitment to public safety through community partnerships, regardless of immigration status, while adhering to the law.

EXISTING POLICY

Per Department Manual Sections 1/390, Undocumented Immigrants and 4/264.50, Enforcement of United States Immigration Laws, officers are prohibited from initiating police action with the objective of determining a person’s civil immigration status.

The California Transparency and Responsibility Using State Tools (TRUST) Act further restricts a local law enforcement agency from honoring an Immigration Detainer Notice of Action, also known as an “Immigration and Customs Enforcement (ICE) Detainer Request,” which asks a local agency to voluntarily extend an arrestee’s time in custody for up to 48 hours beyond the time the person would otherwise be released. An ICE Detainer Request is based on Department of Homeland Security’s determination that an individual may be subject to civil immigration proceedings such as removal or deportation from the United States. It is neither an arrest warrant nor judicial order based on probable cause that the individual has committed a federal or state crime.

In compliance with the California TRUST Act and recent federal court decisions, the Department modified its procedure regarding ICE Detainer Requests as reflected in Custody Services Division (CSD), Jail Operations Manual Section 2/501, Immigration and Customs Enforcement (ICE) Hold Pending Procedure. The CSD will not detain an individual based on an ICE Detainer Request without one of the following:

• Judicial determination of probable cause for the detainer; or,

• Arrest warrant issued by a judicial officer.

GUIDELINES AND PROCEDURES

This Notice provides guidance for officers who discover through the National Crime Information Center (NCIC) database that individuals are wanted by federal authorities for a civil or criminal immigration offense. When an NCIC query is conducted, it is important to identify and distinguish a civil ICE Detainer Request from a criminal arrest warrant:

• The NCIC Wanted Persons Record includes individuals with outstanding federal or state criminal arrest warrants that have been issued by a judicial magistrate.

• The NCIC Immigration Violator’s Record includes ICE Detainer Requests for individuals who may be subject to removal from the United States based on their civil immigration status and persons who may have violated federal criminal immigration laws for illegally re-entering the United States after a conviction for a criminal offense.

NOTE: Officers are reminded that initial NCIC queries shall only be made for legitimate law enforcement purposes unrelated to determining a person’s immigration status.

To determine whether an individual with an NCIC Immigration Violator’s Record is wanted, officers shall perform the following (See Example No. 1):

1. Check the first letter of the alphanumeric NIC number. A letter, “N” identifies an ICE Immigration Detainer Request while a letter “W” followed by a nine-digit number indicates a criminal arrest warrant;

2. Check the Originating Agency Identifier (ORI) number or name of the agency;

3. Search for the word “DETAINER” within the NCIC printout; and,

4. Check if the subject is a “DEPORTED CRIMINAL” classified as an “AGGRAVATED FELON.”

PROCEDURES FOR AN INDIVIDUAL WANTED BASED ON A CRIMINAL ARREST WARRANT

If the individual’s NCIC record indicates an outstanding criminal arrest warrant for an immigration-related offense, officers shall follow the same procedures for warrant arrests as set forth in Department Manual Section 4/611.10, Positive Response to CWS Inquiry — Employee’s Responsibility and Arrest Report – Field Notebook Divider, Form 18.32.00 (08/15) – Warrant Arrests.

PROCEDURE FOR AN INDIVIDUAL IDENTIFIED AS A “DEPORTED CRIMINAL/AGGRAVATED FELON”

If an NCIC Immigration Violator’s Record inquiry indicates a person is a “Deported criminal/Aggravated Felon,” an officer may detain the individual. The detention must be for a reasonable period to investigate whether the individual may be in violation of Title 8, United States Code Section 1326(a), (b)(2) (Illegal Re-Entry after Conviction of an Aggravated Felony), a felony criminal offense. The following procedures shall be followed:

• The person was initially contacted by Department personnel for reasons unrelated to immigration enforcement;

• The person is not a victim of, or a witness to, a crime or can otherwise provide evidence in a criminal investigation;

• Check the individual’s criminal history information in Consolidated Criminal History Reporting System (CCHRS), California Information and Identification Number (CII) and/or the Federal Bureau of Investigation criminal arrest records for indicators of prior removals, or deportations;

• Determine if the individual had been previously convicted of an aggravated felony offense (arrests are insufficient);2

• Determine if the prior conviction for an aggravated felony is also classified as a serious or violent felony” as defined in California Penal Code §§ 1192.7(c) and 667.5(c); and,

• Immediately advise the Area watch commander.

Note: Department personnel shall release the person if, during the detention, it is determined that the prior felony conviction is neither a serious or violent felony under California law and the person is not otherwise subject to arrest or detention based on a non-immigration local, state or federal offense.

AREA WATCH COMMANDER’S RESPONSIBILITIES

• Review all supporting documents;

• Contact the Department Operations Center (DOC) Communication Division to be connected with the Department’s Immigration Liaison Officer (ILO) to request an approval to

(1) further detain the individual, and (2) contact the ICE’s Law Enforcement Support Center (LESC);

• If approved by the ILO, advise the Area Commanding Officer and notify the LESC at the telephone number indicated ori the Immigration Violator’s Record NCIC hit confirmation printout;

• Advise the LESC that the detained individual will be held for a reasonable period, not exceeding four hours, unless the person is detained for an unrelated criminal offense.

Any temporary detention beyond four hours must be pre-approved by the ILO;

• If the individual is being booked for an unrelated criminal offense, notify the Commanding Officer of CSD;

• Document the results in the Watch Commander’s Daily Report, Form 15.80.00 (watch commander’s log); and,

• Document the immigration enforcement action on the “Immigration Enforcement Report” pursuant to Operations Order No. 3, Immigration Enforcement Reporting Procedures, dated March 19,2018.

AREA COMMANDING OFFICER’S RESPONSIBILITY

• Ensure proper notifications are made to the appropriate bureau commanding officers; and,

• Review and approve the “Immigration Enforcement Report” and supporting documentation pursuant to Operations Order No. 3, Immigration Enforcement Reporting Procedures, dated March 19, 2018.

DEPARTMENT IMMIGRATION LIAISON OFFICER’S RESPONSIBILITIES

• Review and approve all documentation pertaining to the immigration enforcement actions; and,

• Maintain records of the documentation.

PROCEDURES FOR AN INDIVIDUAL NOT IDENTIFIED AS WANTED BASED ON A CRIMINAL ARREST WARRANT OR AS A “DEPORTED CRIMINAL/AGGRAVATED FELON”

If an NCIC record neither indicates an outstanding criminal arrest warrant nor identifies the individual as a “Deported Criminal/Aggravated Felon,” the individual shall be immediately released from custody unless reasonable suspicion or probable cause exists to detain or arrest the individual for an unrelated criminal charge. ]

Should you have any questions, please contact Investigative Analysis Section, Detective Services Group, at (213) 486-7010.

SEAN MALINOWSKI, Deputy Chief
Chief of Detectives

BOB GREEN, Deputy Chief
Chief of Staff

Office of the Chief of Police


Image of former LAPD Chief of Detectives Sean Malinowski is ©2019 MichaelKohlhaas.Org and if you’re gonna look, look at this.

  1. Look at the original PDF for a handy table of all crimes which California state law allows prisoners to be held for ICE and turned over to them. It’s not easily transcribable in HTML.
  2. 1 “Aggravated felonies” include murder, rape, sexual abuse of a minor, illicit trafficking in controlled substances, firearms/destructive devices, laundering monetary instruments, explosive materials offenses, crimes of violence, theft/burglary/receipt of stolen property, demand for or receipt of ransom, child pornography, RICO, owning/controlling/managing/supervising of a prostitution business, slavery/involuntary servitude, human trafficking gathering/transmitting national defense information, offense involving fraud or deceit causing loss to victim over $10,000, alien smuggling, improper entry/reentry by alien previously deported, falsely making/forging/counterfeiting/mutilating/altering passport or instrument, failure to appear for service of sentence when underlying offense punishable by five years or more, commercial bribery/counterfeiting/forgery/trafficking in vehicles, obstruction of justice/perjury or subornation of perjury/bribery of witness, failure to appear after court order to answer felony charges, and attempt or conspiracy to commit any of the above offenses. See 8 U.S.C. §1101(a)(43).
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