Louisiana motorcyclists in the Bossier/Shreveport area may be experiencing a mechanism of profiling that many are unaware of. It has been reported to the MPP that 17 motorcyclists in the area have recently been arrested for wearing bandanas, scarves, and even a bubble shield while riding because it conceals their identities in public. Local law enforcement contends that covering your face in public is a violation of Louisiana’s anti-mask law, LSA-R.S. 14:313, which carries a 6 month to 3 year term of imprisonment. Although every incident has not been confirmed, the MPP spoke to one motorcyclist directly and confirmed that he was arrested for concealing his identity on November 8, 2016.
The law used to justify targeting motorcyclists for wearing masks in Louisiana exists elsewhere. At least 15 states have what experts call “general anti-mask laws” that could be applied to motorcyclists. Applying anti-masking laws to motorcyclists covering their heads and faces with protective gear is an abuse of statute and demonstrative of motorcycle profiling. An exemption for public safety ought to be obvious.
Motorcyclist Arrested For Concealing Identity
While visiting Louisiana to attend and speak at a state Confederation of Clubs and Independents meeting in Alexandria, the MPP became aware of the alleged arrests for concealing identities in public. The MPP spoke to a member of a motorcycle club in the Bossier/Shreveport area that was able to confirm the validity of the rumors.
Although a traffic pretext was used to justify the stop, the MPP evaluated his citation and he was indeed arrested for concealing his identity, an alleged violation of state code LSA-R.S. 14:313. This individual was on his way to vote in the 2016 National Election. He was denied this opportunity. He was forced to pay a bond in order to obtain his release and as of this writing the issue has not yet been resolved.
(Notably, this same individual has been experiencing a pattern of harassment while riding his motorcycle. 9 days after the mask arrest he was again stopped and harassed for a series of pre-textual infractions preceding more questions about his club affiliations.)
LSA-R.S. 14:313
LSA-R.S. 14:313
Masks or hoods, wearing in public places prohibited; penalty; exceptions; permit to conduct Mardi Gras festivities, how obtained.
No person shall use or wear in any public place of any character whatsoever, or in any open place in view thereof, a hood or mask, or anything in the nature of either, or any facial disguise of any kind or description, calculated to conceal or hide the identity of the person or to prevent his being readily recognized.
Whoever violates this Section shall be imprisoned for not less than six months nor more than three years.
This Section shall not apply:
To activities of children on Halloween, to persons participating in any public parade or exhibition of an educational, religious, or historical character given by any school, church, or public governing authority, or to persons in any private residence, club, or lodge room; or,
To persons participating in masquerade balls or entertainments, to persons participating in carnival parades or exhibitions during the period of Mardi Gras festivities, to persons participating in parades or exhibitions of minstrel troupes, circuses, or other dramatic or amusement shows, or to promiscuous masking on Mardi Gras which are duly authorized by the governing authorities of the municipality in which they are held or by the sheriff of the parish if held outside of an incorporated
All persons having charge or control of any of the festivities set forth in paragraph (2) of this Section shall, in order to bring the persons participating therein within the exceptions contained in paragraph (2), make written application for and shall obtain in advance of the festivities from the mayor of the city, town, or village in which the festivities are to be held, or when the festivities are to be held outside of an incorporated city, town, or village, from the sheriff of the parish, a written permit to conduct the festivities. A general public proclamation by the mayor or sheriff authorizing the festivities shall be equivalent to an application and permit.
Applying Law To Motorcycle Safety Gear Is Absurd
Originally the Louisiana law against wearing masks and hoods in public was motivated by the Ku Klux Klan wearing hoods and masks concealing their identity while they terrorized and intimidated others.[1] Louisiana’s law makes exemptions for Halloween and Mardi Gras, but none for public safety. Although clearly not the intent of the law, motorcyclists covering their faces to avoid bugs, wind, and rain may be subject to arrest.
Considering Louisiana’s mandatory helmet requirement based on public safety, the absurdity of applying anti-mask laws to motorcyclists is further demonstrated. Every helmet covers a motorcyclists head similar to a hood and all motorcyclists wear eye protection. The very act of riding a motorcycle legally requires concealment. A motorcyclist wearing a full face helmet could be arrested for concealing their identity if anti-mask laws apply. Remember, a full face helmet is considered the best protection among experts that advocate helmets.[2]
Some states that have similar laws have anticipated such conflicts and include an exemption for safety or sporting activities in their anti-mask statutes.[3] But 15 states, including Louisiana, have more general statutes that could lead to these abusive applications.[4] In fact, “general anti-mask laws proscribe the simple concealment of physical identity in public, regardless of coexistent criminal activity. Individuals have been prosecuted under general anti-mask laws for wearing a Ku Klux Klan hood, for dressing in the clothing and wearing the makeup of the individual’s opposite sex, and for placing a leaflet between the individual’s face and eyeglasses.”[5]
Possible Solutions
Numerous strategies may exist to combat anti-mask laws being applied to motorcyclists. Judicially, filing for a Declaratory Judgement arguing that the statute is unconstitutional is another option, although this has been attempted and has not always been successful.
“The conflicting court decisions, along with the varying scope of anti- mask laws themselves, reflect the uncertainty concerning when, if ever, the government can constitutionally ban public mask-wearing. Further complicating this area of the law is the apparent political bias of some of the courts that have ruled on the challenges.”[6]
Legislatively, an anti-motorcycle profiling law would eliminate discriminatory pretext stops at the source. Also, adding an exemption to state statute for safety and sport, including motorcycling, would prevent abuse and preserve the original intent of the law.
[1] https://casetext.com/case/opinion-number-95-188 Attorney General of Louisiana — Opinion 95-188 (Ops. La. Atty. Gen. 1995)
[3] Stephen J. Simoni, “Who Goes ere?” — Proposing a Model Anti-Mask Act, 61 Fordham L. Rev. 241 (1992). Available at: h p:// ir.lawnet.fordham.edu/ r/vol61/iss1/16
[4] See Ala. Code § 13A-11-9(a)(4) (1982); Del. Code Ann. tit. 11, § 1301(l)(g) (1987 & Supp. 1990); D.C. Code Ann. § 22-3112.3 (1989); Fla. Stat. Ann. §§ 876.11-.16 (West 1976 & Supp. 1992); Ga. Code Ann. § 16-11-38 (1988 & Supp. 1991); La. Rev. Stat.
Ann. § 14:313 (West 1986); Mich. Comp. Laws § 750.396 (1991); Minn. Stat. Ann. § 609.735 (West 1987); N.M. Stat. Ann. § 30-22-3 (Michie 1984); N.Y. Penal Law § 240.35(4) (Mc- Kinney 1989); N.C. Gen. Stat. §§ 14-12.7 to .11 (1986); Okla. Stat. Ann. tit. 21, § 1301 (C 1983); S.C. Code Ann. § 16-7-110 (Law. Co-op. 1976); Tenn. Code Ann. § 39-17-309(c) (1991); Va. Code Ann. § 18.2-422 (Iichie 1988); W. Va. Code § 61-6-22 (1989).
OFF THE WIRE
IF YOU CONSIDER YOURSELF A REAL WARRIOR YOU'LL READ THIS AND UNDERSTAND IT:
The following quote epitomizes the gap between what soldiers wish they were, and the modern battle field today:
“Out of every hundred men, ten shouldn’t be there, eighty are are just
targets, nine are the real fighters, and we are lucky to have them, for
they make the battle. Ah, but the one, one is a warrior, and he will
bring the others back.” (Attributed to Heraclitus, I have a sneaking
suspicion this quote has been mis-attributed; the same page has a common
misquoting of Orwell and Churchill. I've read too many popular "clever"
quotes that I later find are inaccurate.)
True or not, the above
quote has joined “We sleep safely at night because rough men stand
ready to visit violence on those who would do us harm,” as one of the
quotes that make up the military psyche, and ethos of the military. Many
soldiers point to this and say "This is what a warrior is. This
describes war. This describes me." But this quote doesn't describe war
or warriors, at least not in the last hundred years. The warrior, if he
ever existed, was long ago replaced by machines, mechanization, and the
new modern battlefield.
First, the modern battlefield is one of
specialization. Only half of the Army is involved directly in combat
duties, many are human resources technicians, electricians or
repairmen. This battlefield is a battlefield of naval aircraft carriers;
where one person's entire job is changing food and drinks in the
vending machines. Is a vending machine operator a warrior? (One could
make the argument this is a great thing, that we have isolated our "real
fighters," according to the quote, in the combat roles. But of course,
there is no "warrior" test.)
Second, modern weapons commit
massive violence on a massive scale that is often random and
unpreventable. They do not distinguish between warrior and non-warrior,
fighter and non-fighter, nor can the warrior defend himself from those
weapons the way he could sword and spear. The modern battlefield is a
battlefield of cruise missiles, guided bombs and TOW missiles; a
battlefield made up of IEDs and mortar shells. When soldiers ran over
the trenches in World War I, the machine gun bullets didn’t distinguish
between warriors and the rest. There is nothing the warrior could have
done to prevent his death. Often, there is nothing he can do today to
prevent the IED exploding. (Again, you could argue the soldier could
prevent IEDs by winning over the local population with great
counter-insurgency, but this also goes against the common view of the
"warrior" and certainly isn't what Heraclitus meant.)
Which gets
at the point behind this quote. There is a rugged individualism, a sense
in which the warrior (and by extension every soldier who reads the
quote and sees themselves in it) controls his own destiny. His skill and
bravery alone will win the battle. But in the random capriciousness of
bombs from the sky, this just isn’t true. One man can't, and won't make
the difference.
Third, distance destroys the warrior. How far
away can a soldier be from a battlefield and still be considered a
soldier? Is the bomber pilot a warrior? Do his remote bombing make the
difference in the battle? What about the analyst sighting targets safely
in a Super FOB, does he make the difference? What about the Sailor who
fires the cruise missile? The pilots flying predator drones in Nevada
consider themselves soldiers, but I don't think anyone would call them
warriors. At least not on the same level of the soldiers Heraclitus was
talking about.
When did the warrior die (or at least stop making a
difference)? Certainly he was dead by World War I and II; two wars
fought in such numbers, no individual made a difference. Bullets,
killing thousands in Antietam, fired at near random did not distinguish
warrior and fighter. Once the bullet was invented, the warrior knights
were killed; once armor was invented, peasant warriors were slaughtered.
The impact of the warrior pales in comparison to the impact of
technology. Perhaps, if the quote refers to the inventor of the long bow
and the bullet, it would be accurate.
I said in the beginning
“if the warrior” ever existed. Michael recently forced me to read a
section of John Keegan's A History of Warfare, and his description of
the phalanx style warfare of the Greeks--the age in which Heraclitus
wrote--is a model of randomness. Two phalanxes crash into one another,
then poke and spear at one another to find a gap. Once the phalanx is
cracked, they push through, and the phalanx disperses, and everyone runs
away. And once again, the warrior doesn’t make a difference, the
weakest link does.
Matt Agorist
Austin, TX — Instead of going out and solving robberies, rapes,
murders, domestic disputes, or thefts, the Austin police department is
doing something that doesn’t benefit society in any manner whatsoever.
They are going undercover in city buses to catch people who don’t have their seat belt on.
This week, Austin cops took to city buses to peer through the windows at unsuspecting criminals — who’d dare drive their own vehicle without their own seat belt on.
When the cop on the bus spots the dangerous criminal driver who may
have simply forgotten to buckle up, he signals the hero officer out on
the road to pull them over and extort money from them. Why is the Austin
police department doing this, you ask?
“To try and make people aware of the dangers of driving without a seat belt,” APD Officer Mike Barger said.
However, the dangers of driving without a seat belt are well known.
Cops do not have to rob people of their hard earned money to hammer that
point home. The real reason the APD is conducting this program is the
reason police departments exist in the first place — revenue collection.
Nothing exposes the revenue collecting nature of the state quite like
police officers pulling over citizens and issuing them fines for not
wearing their seat belts.
Seat belt ‘laws’ exhibit the tyrannical nature of government and
illustrate the lengths to which the state will go to separate the
citizen from their wealth.
It takes a person incapable of questioning morality versus legality
to approach otherwise entirely innocent individuals and target them for
extortion via fines issued for failure to comply with arbitrary decrees
for victimless ‘crimes.’
To think that society needs to be extorted by armed agents of the
state to protect them from themselves is as asinine as it is tyrannical.
If you personally feel that you need a police officer to steal your
money and threaten you with jail because you aren’t wearing your seat
belt — you are part of the problem.
Sadly, municipalities across the country are so addicted to the
extortion of citizens for victimless crimes that they are unable to see
the immoral nature of robbing people for not wearing their seat belts.
The Texas Department of Transportation even gave Austin police
$79,000 in taxpayer money to fund the start-up of this tyrannical
operation — “Click it or Ticket.”
“The dangers of being injured in a crash at low speeds are
significantly increased by not wearing a seat belt,” Barger said, again
attempting to justify robbery to ‘keep people safe.’
CBS Austin interviewed Sgt. David McDonald, who was also riding on
buses extorting people for seat belts. McDonald attempted to justify the
robbery of citizens for not wearing seat belts by using his wife as an
example — who he says took off her seat belt briefly and then got into
an accident.
“Someone ran a red light and she got ejected out of our vehicle
because she wasn’t wearing a seat belt,” McDonald said. “Finding my own
wife in the street bleeding profusely, I can’t get those images out of
my head.”
No one is going to deny that finding your wife bleeding in the road
is a horrifying experience that no one should go through. That being
said, the analogy is little more than a straw man. Short of placing a
cop inside every vehicle, the state will never be able to guarantee that
every citizen wears their seat belt.
If seat belt fines couldn’t stop a cop’s wife from buckling up, how
on earth can this officer justify robbing people to make them buckle up?
The bottom line is that people don’t refuse to buckle up because they
are intent on breaking the law. They don’t need to be treated as
criminals and, they most assuredly do not need to be robbed.
People wear their seat belts because it is safe. Those who
deliberately refuse to wear their seat belts — knowing the potential
repercussions — deserve the right to make that foolish choice as this
decision has NO VICTIM and harms no one but the person making it.
On the law enforcement side, however, stealing money from innocent
people for accidentally forgetting to buckle up, absolutely creates a
victim. And, being that victims can’t exist without someone making them
so, it also creates a criminal.
Ironically enough, the Austin cop in the image at the top of this
page, not only doesn’t have his seat belt on — as he robs people for not
wearing their seat belts — but he’s standing up. Hypocrisy at its
finest.
The good news is that the public is no longer buying it. When CBS
posted this article on their Facebook page, the comments said it all.
OFF THE WIRE
Decoration Day, which we now call Memorial Day, began spontaneously in the spring of 1864 as our national day of suffering.
It was the inevitable result of the American Civil War in which at least 620,000 men died. Their survivors suffered from those deaths. About 576,000 men were wounded. Surgery was primitive. There were no antibiotics and the only anesthetics – alcohol, cannabis and opium – were often in short supply. One hundred thousand men died of camp diseases and another 400,000 simply disappeared. Some of them may have been deserters but some portion of them simply rotted where they fell. About eight percent of the combatants in the War Between the States returned home without an arm or a leg.
That suffering only found meaning when it was remembered.
Decoration Day was the day the living tended the monuments to the dead. In the beginning, usually the monuments were made of wood. Sometimes they were slabs of slate. As decades passed, as the North and the South reunited in their shared suffering and their terrible shared history, the monuments turned to granite, marble and bronze. Those monuments were not made as insults to some unimaginable future. There were made so the future might never forget that it was built on the bones of those who sacrificed their own futures for us.
By the time of our next war, when 2,446 Americans died in Cuba and the Philippines, American History was carved in stone. There was nothing arbitrary and relative about the story of us. History is not made of sand. It can only be buried by it.
Every generation or so, we are reunited as a nation by our sorrow.
Fifty-three thousand four-hundred and two American soldiers died in the War to End War; 405,399 died in the war after that; 36,574 died in Korea; 58,220 perished in Vietnam; 383 died in the Gulf War; and so far 4,410 have died in Iraq and 2,184 have died in Afghanistan. They were all our sons and brothers. They are our heroes. They died for us. Our history is written in their blood. Each of their deaths was its own timeless moment and we are not redeemed from our history by renouncing it. We are not only who we are. We are also who we were.
Our history is a pattern of timeless moments. Each of their deaths was an act of faith in us, in who we would become, in who we have become and in who we will become.
OFF THE WIRE
It seems to be a cops “get out of jail free” card. After firing their weapon, they exclaim, I feared for my life!
Equipment Carried by Law Enforcement
When a police officer dresses for work, they put on a duty belt that is filled with equipment to assist them in doing their job. While some items are for defense, such as the bullet proof vest, other items are for offense.
The officer dresses out of fear. He
wears the bullet p
proof vest in fear of being shot. He carries a loaded weapon in fear of a suspect having a weapon. His job starts each day in fear.
Officers Train with Their Service Weapons
The officer has spent countless hours training with his service weapon.
His training is expected to kick in when he is put in situations that
he fears.
He has attended the training academy. He has learned how to place
handcuffs on a suspect. He has completed a required probationary
period.
He has even done the job. He has gone out and made arrests, dealing with those society wants to lock up and throw away the key
He has conducted an untold number of traffic stops and issued ticket
after ticket. This is not unfamiliar to him. And he has used his
training in each stop..
So with all his gear. The bullet proof vest, service weapon, Ar-15,
taser, handcuffs, pepper spray, extra ammunition, flashlight, baton and
all his other equipment. And backup just blocks away.
That when they arrive to a scene, they allow adrenaline to take over.
And forget about their training, forget about what they learned in the
academy, forget about the plethora of equipment strapped to their duty
belt and turn this.
Into family members devastated by the loss of an innocent family member.
The financial strain of needing to pay for burial services. All
because a cop “feared for his life”. After all that equipment and
training, fear should not be an excuse for murder.
OFF THE WIRE
CALIFORNIA — Checkpoints are becoming part of the scenery in many
parts of the country. Excuses for blocking roads range from catching
drunks, to finding drugs, to catching illegal immigrants, to just simply
making people show their papers in order to continue down the road. In
California, they employ daily checkpoints to catch polluters.
“It’s ridiculous,” said Dane Chea,
owner of Holt Automotive Repair in Rocklin, after witnessing a nearby
smog checkpoint. “It’s taking time away from people. Everybody’s busy.”
Smog testing equipment used at a checkpoint. (Source: ABC 23 Bakersfield)The smog tests, run by the California Bureau of Automotive Repair
(BAR), are technically voluntary, but with the fanfare and presence of
highway patrolmen flagging people down, it does not come off that way to
many drivers.
“They certainly don’t make it seem like it’s voluntary. There were no
warning markers. Nothing like that at all,” said Brentwood resident,
Mark Cutino. “It just seemed intimidating,” he told the San Jose Mercury News.
The California Highway Patrol’s own Erik Martinez admitted to the
same newspaper that he “spent a lot of time trying to calm drivers down”
at a recent checkpoint.
After witnessing a smog checkpoint in his neighborhood at 11:00 a.m. in the morning, Scott Tsuneishi of ImportTuner.com described what he saw as a “mandatory smog blockade.”
Two teams of BAR agents are deployed on a “near-daily basis.” If the
drivers comply with the checkpoint, bureaucrats insert a probe in their
tailpipe and the vehicles are analyzed for a number of failures.
According to Mercury News:
The tests, which take about 10 minutes, are set up
similar to smog checks at a service station. Technicians drive the
vehicle up onto an elevated metal dynamometer to check the car’s
components and systems, indicator lights, ignition timing, gas cap and
exhaust recirculation system, said Eric DeBarruel, a program
representative with the automotive bureau.
Initially set up as a “one-time inspection” in 1966 by the California
Highway Patrol, this program has continued to grow and expand. 1996
gave way to bi-annual inspections that were tied to the registration
process of the vehicle. This means that by accepting a California
driver’s license and registration, you are agreeing that you will comply
with this law or that you will be subject to legal consequences.
In 2002, the California Health and Safety Code added Section 44081,
which was meant to give the code and existing smog laws some “teeth.”
This specific section gives police officers in California the authority
to randomly stop vehicles to “ensure their compliance with state smog
laws.” The first portion of the section reads:
44081. (a) (1) The department, in cooperation with the
state board, shall institute procedures for auditing the emissions of
vehicles while actually being driven on the streets and highways of the
state. The department may undertake those procedures itself or seek a
qualified vendor of these services. The primary object of the procedures
shall be the detection of gross polluters. The procedures shall consist
of techniques and technologies determined to be effective for that
purpose by the department, including, but not limited to, remote
sensing. The procedures may include pullovers for roadside emissions testing and inspection.
Combined with the bi-annual inspections that are tied to vehicle
registration and Section 44081 and what do you end up with? Today’s
smog checkpoints.
But are these checkpoints really worth anything? California vehicles
already have to pass an emissions test to be registered in the state.
Why devote resources to a redundant smog check? Isn’t California
bankrupt?
Last month, the California Taxpayers Association compiled a startling
analysis of the state’s unfunded debts. As reported by the Sacramento Bee:
Cal-Tax researchers counted $443 billion in state and
local debts, roughly two-thirds of it carried by the state and the other
third by local agencies. That’s the equivalent of a fifth of the
state’s annual economic output and amounts to $11,600 for each of
California’s 38 million residents.
It is remarkable that a state with such startling levels of
outstanding debts can be spending money on frivolous things like this.
But this is California we are talking about. No project is too absurd
to spend taxpayers’ dollars on. In fact, if a driver fails emissions
testing in California, they pay him to stop driving his vehicle, from
$1,000 to $1,500, in what is referred to as a “vehicle retirement” package.
In light of the redundancy of the testing, and with the state budget
statistics in mind, one can only conclude that the California
legislature wants to spend money it doesn’t have, and wants the public to grow accustomed to being flagged down by police in broad daylight for customary checkpoints.
Reposting
this 2013 article because it was reported (now confirmed, but don't
have detail on it just yet) that the CHP were pulling over cars in San
Bruno yesterday supposably for the purposes of conducting a smog check.
These are not mandatory, they are voluntary, yet they tend to make it
sound like they are mandatory unless you specifically ask.
If you happen to see or get caught up in one of these smog checkpoints here in CA, please take pics or video and post them. These
are not mandatory, they are voluntary. A few years ago they were doing
this in Rocklin CA. I was on my bike. I stopped to see if they were
telling the people it is voluntary. They laughed at me. I went back to
the bike and grabbed my video camera.
The CHP Officer walked back to his car and stayed there. I told the
people waiting for their cars it was voluntary. They challenged those
doing the testing and they said yes, it is voluntary. Those folks left
and no one else wanted to participate in the "voluntary" smog check.
The tests are being conducted by the Bureau of Automotive Repair. Here
is the ding...this is just another way to generate revenue by
partnering with an industry that benefits from frightened citizens who
think they can be fined or forced to get rid of their car if they don't
meet the standard. On the flip side, CHP can't
issue citations for a failed test because it would expose the existing
system of required smog tests as flawed. And I'm sure these must be some
type of kickback from each smog station to the state just to
participate in the program. Again, it is all about the $$$$$$$
Roadside Inspection Program
The Roadside Inspection Program was established
by the Bureau of Automotive Repair (BAR) pursuant to Health and Safety
Code section 44081 which requires BAR, with the
assistance of the California Highway Patrol, to inspect the emissions
of vehicles while actually being driven on
California roadways. Why are roadside surveys necessary?
The data collected from roadside surveys
provides an overview of the emissions emitted by vehicles driven on
California's roads to help ensure the State is
meeting federal standards for reducing ozone-forming pollution generated
by motor vehicles. The data also provides useful
information to evaluate and improve the performance of the
Smog Check Program. Where are roadside surveys performed?
The surveys are performed in the areas of the
state with the poorest air quality, including the Central Valley, the
San Francisco Bay area, the greater Los Angeles
area, Inland Empire, and San Diego area. BAR randomly selects ZIP codes
in these areas and then identifies suitable
sites where it can safely conduct the surveys. Who performs the roadside surveys?
Roadside surveys are performed by BAR staff.
Each team generally consists of three or four individuals, all of whom
are
ASE certified automotive technicians. How are the roadside surveys performed?
Vehicles selected for testing are stopped by an
officer of the California Highway Patrol. The consumer is greeted by a
BAR
representative who provides them with
information about the survey's purpose and answers any question they may
have. The
survey is performed in a manner similar to a
Smog Check inspection and usually takes less than 10 minutes. How do these surveys affect consumers?
Participation in the survey is voluntary. There
are no consequences to consumers, regardless of their vehicle's emission
control equipment or its emission levels. At the
conclusion of the inspection, the participants receive a Vehicle
Inspection
Report (VIR) detailing the results of the test. Does the survey take the place of a required Smog Check inspection?
No. The VIR may not be substituted for a
vehicle's official Smog Check inspection report. However, the VIR does
provide important
information about the vehicle. BAR staff will
also alert participants to any mechanical issues that are observed while
conducting
the inspection.
BAR appreciates your help in improving air
quality in California. To learn about more ways you can help to reduce
air pollution, visit
www.arb.ca.gov.
OFF THE WIRE My understanding is that in the US, if you
flee a traffic stop, the police can use the precision immobilization
technique (PIT) to stop your vehicle. But if someone flees on a
motorcycle, the police simply let the rider go.
A PIT maneuver is a (relatively) controlled
collision. It is still risky, and only done if other options are
excluded (spike strip deployment, low-speed pursuit, even just letting
the suspect go to reduce risks).
If you collide a Crown Victoria
with a motorcycle, the most likely result is a complete loss of control
by the driver, probable ejection from the seat, and/or scraping along
the ground. More bluntly, the driver is probably going to get severely
injured or killed.
That's not an acceptable risk, in the eyes of a sensible cop.
Additionally,
there's the issue of getting up next to the bike to perform the
maneuver. Motorcycles generally have much better power-to-weight ratios
than cars, even higher-powered cars like an Interceptor-model Crown Vic,
or one of the Chargers getting used more recently.
The bike will
probably just smoke the officer trying to pull them over. At that
point, you have a high-speed pursuit on your hands, which most PDs will
call off immediately as an unacceptable risk.
Two members of the Twisted Image
Motorcycle Club and a member of the Knight Keepers MC were attacked by
members of the American Knights Motorcycle Club as they tried to enter a
Chicago bar called Zachary’s For Cocktails about 4 a.m. Sunday. And,
the official coverup started immediately.
The American Knights has chapters in
Chicago and Joliet, Illinois. According to the club’s website, it is
“comprised of active and retired law enforcement officers, military, and
qualified civilians who support the goals of law enforcement. The club
promotes brotherhood and the sport of motorcycle riding. The American
Knights Motorcycle Club of Chicago has been honored three times by the
Chicago City Council for outstanding charity work in the city of
Chicago. Our main focus as a club is brotherhood, promoting motorcycle
riding, and various fundraising activities for Police, Military, and
many other charities.”
All three of the victims are military
veterans. One is a former Airman, another a former Marine and the third
is a former Army Ranger.
Anybody Know Tower
After American Knights Physically denied
the three victims entry to the bar in a Chicago neighborhood called
Jefferson Park, they were shot by an American Knight who emerged from
the bar. Multiple sources have identified the shooter as an
intoxicated, off-duty Chicago police officer whose name in his club is
“Tower.” One victim was shot in the thigh, a second was shot in the back
and the third was shot in the chest. A witness said at least five shots
were fired.
Police initially issued a press release
that said the three victims “were outside in front of Zachary’s For
Cocktails in the 5300 block of North Milwaukee Avenue when they began
fighting with several other males. A gunman emerged from a lounge and
fired shots.” The press release was removed from the Chicago Police
media notification system after the Chicago Tribune published an interview with one of the victims, Roberto Ramos.
“People were running and the guy was
shooting and aiming at people and people were just running off in
different ways,” Ramos told the Tribune. “I got up to see who
was the guy who tackled me. That’s when I realized the guy was already
shooting and had already shot people. I tried talking to my friend – he
was like, ‘I can’t feel my legs;’ my brother-in-law was down the block,
laying on the ground also. He was shot.”
Media in Chicago, including the Tribune’s initial cove rage and coverage on other media outlets like WGN and CBS placed the shooting in the context of “Four dead, 35 wounded in weekend shootings in Chicago.”
As of Wednesday afternoon, no one has been arrested in connection with the shooting. The Tribune reports “the case remains under investigation.”
There is a GoFundMe page to cover the legal and medical expenses of the most seriously wounded victim.
The government is trying to downplay the
hacking code it used to identify thousands of anonymous Tor users under a
single warrant.
The FBI has been in the hacking business for a long time, famously using malware to log suspects' keystrokes as early as the 1990s.
But in the high-profile case surrounding a dark web child abuse site
called Playpen, the Bureau is arguing that because it was authorized by a
warrant, its computer intrusion code shouldn't be called "malware" at
all.
In a testimony
earlier this week in the case of US vs. Jay Michaud, FBI special agent
Daniel Alfin argued that the hacking tool used to identify Michaud and thousands of other Playpen users—which
the FBI euphemistically calls a "Network Investigative Technique" or
"NIT"—isn't malware because it was authorized by a court and didn't
damage the security of Michaud's computer.
"The NIT utilized in
this investigation was court-authorized and made no changes to the
security settings of the target computers to which it was deployed. As
such, I do not believe it is appropriate to describe its operation as
'malicious,'" Alfin said. He added that he personally loaded the NIT
onto one of his own machines and that "it did not make any changes to
the security settings on my computer or otherwise render it more
vulnerable to intrusion than it already was."
Malware
is short for "malicious software," and has always been somewhat hard to
define. But the government's interpretation defies its commonly
understood meaning in computer security, which describes code that ssurreptitiously installs and runs on a device without the owner's consent. The FBI's NIT would certainly fit that description: it was quietly installed on the machine of anyone accessing the Playpen website, which was only available while using the anonymous Tor browser. Once implanted, the NIT returned the true IP addresses of the site's visitors. To send the NIT, the FBI seized control of the Playpen site, effectively facilitating the distribution of child abuse images for two weeks.
It may just be semantics, but the terminology could be crucial as momentum builds in the courts and Congress to limit the FBI's hacking powers. Earlier this week, Senator Ron Wyden (D-Ore.) announced the Stop Mass Hacking Act, a bill that would prevent the FBI from using a single warrant to install malware on thousands of computers whose locations are unknown, like it did in the Playpen case.
Judge Robert J. Bryan recently reversed his previous position on the FBI's use of the NIT, ruling that the government doesn't have to reveal the full exploit code while simultaneously saying that the government should face sanctions for its refusal to produce evidence. In response, the government argued on Friday that it should receive no sanctions at all for refusing to disclose the exploit, claiming that the defendant already has enough information about the NIT to build a defense.
FBI
A fairly common recommendation for reducing police misconduct is to
increase use of body cameras. By recording police-citizen encounters,
police supervisors, judges, reporters, and others can get objective
evidence of what happened instead of self-serving hearsay.
The proposal is gaining popularity, but it is also more complicated
than most people realize. First, there are privacy concerns for persons
who do not want their police encounters on the evening news or splashed
across social media. Second, the costs involved in maintaining a body
camera system are not insignificant. Those costs have to be weighed
against other police needs and other reform measures. Do police body cameras improve police behavior?
The short answer is that it is too early to tell. However, the
results from the several studies on police body cameras are encouraging.
One of the most cited police body camera studies
was conducted in Rialto, California between February 2012 and February
2013. During the trial, 54 front line officers were randomly assigned to
either wear body cameras or to not wear the cameras while on shift. Of
the 988 shifts examined by researchers, officers wore body cameras in
489 and did not in 499. Researchers compared the number of use-of-force
incidents and complaints against police in the trial period to previous
years. The results, based on data from the trial, are below.
At first glance, it might be tempting to correlate the reduction in
use-of-force incidents and complaints against the police with the
introduction of body cameras. But, it is important to keep in mind that
the Rialto trial began in February 2012; only a month after a new chief
took over the department. The new chief, William A. Farrar, was one of
the authors of the Rialto study and he implemented several reforms after
starting his new job. Thus, it is difficult to determine now much of
the decline in use-of-force incidents and complaints can be directly
attributed to the police body cameras. The Rialto study also cannot
explain whether the drop in use-of-force incidents and complaints can be
attributed to police or citizens changing their behavior. As the
researchers wrote, “we do not know on which party in an encounter the
cameras have had an effect on, or how the two effects — on officers and
on suspects — interact.”
While it is the case that police body cameras cannot conclusively be
shown to improve citizen or police behavior this is not in and of itself
an argument against the use of police body cameras. Body camera footage
has proved valuable in investigations into police misconduct. What are the privacy implications of body cameras?
Police body cameras raise privacy concerns. The indiscriminate
release of body camera footage could have a devastating effect on the
victims of crime. Those crafting police body camera policy have to
effectively balance privacy with the desire to hold police officers
accountable for their actions.
What does such a policy look like? Legislators, law enforcement
organizations, and civil liberty groups have all made police body camera
recommendations. However, some police departments that use body cameras
either do not have policies in place or do not release them.
In October 2014 the ACLU asked
twenty of the largest police departments as well as 10 departments that
attended a body camera conference hosted by the Police Executive
Research Forum (PERF) for their body camera policies. According to the
ACLU’s Sonia Roubini, “Only five of these thirty departments sent me
their policies. The remaining twenty-five cited various reasons for not
doing so.” Of those five departments only one had its police body camera
policy available online.
It is especially important that body camera policies be public
because the nature of a police officer’s job means that he will often
see citizens at tragic and embarrassing moments. There is an
understandable concern related to the release of footage involving not
only victims of crime but also children, accidents, and the inside of
private residences, hospitals, and schools.
Lawmakers across the U.S. have responded to privacy concerns in a
variety of ways. In North Dakota the governor signed a bill exempting
police body camera footage “taken in a private place” from public record
requests, while in Florida and Michigan lawmakers introduced bills which would limit the release of police body camera footage captured inside a citizen’s home. Florida’s bill, SB 248,
would also limit the release of footage captured within “health care,
mental health care, or social services” facilities as well as “at the
scene of a medical emergency involving a death or involving an injury
that requires transport to a medical facility.” Proposed New Hampshire legislation would require police officers to wear body cameras, but would exempt the footage from public record requests.
Civil liberty groups and non-profits have also made body camera policy proposals. Police Executive Research Forum published a paper
on implementing a police body camera policy, which recommended that
some recordings should be prohibited. Among the recordings PERF
recommended prohibiting are those of strips searches, conversations with
informants, and those that take place “where a reasonable expectation
of privacy exists.”
An ACLU paper
said that the release of body camera footage should depend on whether
the footage is “flagged” or “unflagged.” Flagged footage would include
footage that captures use-of-force incidents, arrests, detentions, or an
incident subject to a complaint. Unflagged footage would be footage
that does not include the “flagged” incidents just described.
The paper recommends that unflagged footage be deleted after weeks,
and that unflagged and unredacted footage should not be released without
the consent of the subject. Flagged footage should be available to the
public even in cases when redaction is not possible “because in such
cases the need for oversight generally outweighs the privacy interests
at stake.”
The storing and redaction of body camera footage is a time consuming
as well as expensive undertaking. During the time of a police body
camera study in Mesa, Arizona, three police body camera videos were
forwarded to the Mesa Police Department Video Services Unit. The videos,
which ranged from one to two hours long, took a total of 30.5 hours to
edit for redaction.1
In May 2015 the Associated Press reported
that Cleveland expected to spend at least half a million dollars a year
simply to store, maintain, and replace the body cameras. The AP also
reported that the combined cost of 1,500 Taser body cameras and the data
storage could be up to $3.3 million over five years. The Albany Democrat-Heraldreported
that body camera footage storage was affecting the court system in Linn
County, Oregon. The body cameras being used by two police agencies in
the county have significantly contributed to the amount of data being
stored by the Linn County District Attorney’s office, which in 2011 had
45 gigabytes of media downloads, compared with 351 gigabytes of
downloaded evidence in the first three months of 2015.
Improvements in technology will undoubtedly make the redaction and
storage of police body camera footage less expensive. But, for the
foreseeable future, the redaction and storage of police body camera
footage will continue to impose a significant cost to law enforcement
agencies. Indeed, cost is sometimes cited by police agencies as a reason
why body cameras have not been deployed. In 2014 PERF conducted a survey
of police departments and found that “39 percent of the respondents
that do not use body-worn cameras cited cost as a primary reason.”
It is possible that some of the fiscal impact of police body camera
footage redaction and storage could be offset by the impact the cameras
have on litigation arising from bogus complaints. However, it remains to
be seen if that will be the case.
Of course the cost of a police body camera policy will depend in part
on what footage is redacted. As noted above, redaction contributes to
the cost of body camera programs. A policy that strictly limits
redaction of footage captured in public and redacts some material filmed
inside a private residence would be less expensive (all else being
equal) than a policy that requires a heavy degree of redaction of
footage captured in public. What does the increased use of body cameras mean for American policing?
It is still too soon to tell. As mentioned above, it is not yet clear
what effect, if any, body cameras have on citizens or police officers.
In addition, it is the case that instances of police misconduct have
occurred despite the officers involved wearing body cameras. This
shouldn’t be too surprising given that police officers have been caught
behaving poorly in front of dash cams.
But, the use of police body cameras is supported across political and
racial demographics, as the following graphs based on April 2015 YouGov
polling show:2
In the coming years an increasing number of Americans will come to
expect that their police officers be equipped with body cameras.
Advances in technology will make this expectation more pronounced as the
cost of using police body cameras decreases.
While police body cameras do have potential to improve law
enforcement accountability and provide extra evidence, they are not a
police misconduct panacea. Reducing incidents of police misconduct
requires not only body cameras, but also reforms of use-of-force policy
and training as well as changes to how police misconduct is
investigated. Conclusion
The research on police body cameras is limited but encouraging.
Police body cameras do pose privacy concerns, but those concerns can be resolved with the right policies in place.
The public widely supports police officers wearing body cameras, but
the technology alone is not a panacea for police misconduct.
Suggested readings:
Barak Ariel, William A. Farrar, Alex Sutherland, “The Effect of
Police Body-Worn Cameras on Use of Force and Citizens’ Complaints
Against the Police: A Randomized Controlled Trial,” Journal of Quantitative Criminology, November 2014, doi: http://10.1007/s10940-014-9236-3http://link.springer.com/article/10.1007/s10940-014-9236-3.
Jay Stanley, “Police Body-Mounted Cameras: With Right Policies in Place, a Win For All – version 2.0,” ACLU. March 2015. https://www.aclu.org/sites/default/files/assets/police_body-mounted_cameras-v2.pdf.
Lindsay Miller, Jessica Toliver, and Police Executive Research Forum. 2014. Implementing a Body-Worn Camera Program: Recommendations and Lessons Learned. Washington, DC: Office of Community Oriented Policing Services.
Michael D. White, 2014. Police Officer Body-Worn Cameras: Assessing the Evidence. Washington, DC: Office of Community Oriented Policing Services. https://www.ojpdiagnosticcenter.org/sites/default/files/spotlight/download/Police%20Officer%20Body-Worn%20Cameras.pdf.
Prepared by Matthew Feeney 1 MPD (Mesa Police Department). 2013 On Officer Body Camera System: Program Evaluation and Recommendations (interim report). Mesa, AZ: Mesa Police Department. 2
Peter Moore, “Overwhelming support for police body cameras,” YouGov.
May 7, 2015. https://today.yougov.com/news/2015/05/07/body-cams/.
OFF THE WIRE
VIDEO - http://fox13now.com/2017/05/20/utah-motorcycle-advocates-rally-at-state-capitol/
SALT LAKE CITY -- Utah motorcycle advocates stood with thousands across the nation this week.
At a rally at the Utah State Capitol, advocates called for changes to laws and for police to stop profiling bikers.
“We want them to repeal the helmet law and repeal the handle bar
height law,” said “Gonzy”, one of the bikers who attended the event.
Dozens of motorcycle advocates came together this week to stand up
for their lifestyle. They’re asking police to stop profiling based on
looks.
“There’s no reason to pull us over and just ask us questions when we’ve violated no law,” Gonzy said.
The rally comes two years after a shootout between rival bike gangs
left nine people dead in Waco, Texas. Advocates here in Utah say
they're sick of the stigma surrounding motorcycle clubs.
“I’ve been profiled,” said “Boots” of the POBOP Motorcycle Club. “I
get pulled over saying I didn’t use a turn signal when in fact I used a
turn signal—or I have no insurance, you know, but I keep my insurance
card in my pocket. I’m legit, I’m 100 percent legal; but yet they will
pull you over and fabricate something, but you won’t get a citation
because nothing will hold up in court.”
Biker advocates say there isn't violence in their community, despite what's being portrayed in Hollywood.
“It’s nothing but love, that’s what we’re all about,” said “Taco” of
the Forgotten Few Motorcycle Club. “It’s not what you see on TV. We
don’t go around fighting each other, nothing. What you see is what you
get with us.”
Gonzy agreed.
“We’re Americans here,” Gonzy said. “Whether our motorcycle is our
mode of transportation, or our lifestyle, that’s who we are. We have
jobs. We’re Americans like everybody else.”
Some riders acknowledged they may look intimidating, but they said it's really about a brotherhood.
“It’s just a big old brotherhood," one biker at the event said. "You
know, just because they’re in a different club, we all have the mutual
love for bikes. You know, we all go out there and have a good time, and
it’s just a big brotherhood and we love it.”
OFF THE WIRE
You Know You Are Living In 2017 When…
1. You accidentally enter your PIN on the microwave.
2. You haven’t played solitaire with real cards in years.
3. You have a list of 15 phone numbers to reach your family of three.
4. You e-mail the person who works at the desk next to you.
5. Your reason for not staying in touch with friends and family is that they don’t have e-mail addresses.
6. You pull up in your own driveway and use your cell phone to see if anyone is home to help you carry in the groceries…
7. Every commercial on television has a web site at the bottom of the screen.
8. Leaving the house without your cell phone, which you didn’t even have
the first 20 or 30 or 60 years of your life, is now a cause for
panic, and you turn around to go and get it.
10. You get up in the morning and go online before getting your coffee.
11. You start tilting your head sideways to smile. : )
12. You’re reading this and nodding and laughing.
13. Even worse, you know exactly to whom you are going to forward this message.
14. You are too busy to notice there was no #9 on this list.
15. You actually scrolled back up to check that there wasn’t a #9 on this list .
NOW you’re laughing at yourself! “Blessed are they who can laugh at themselves, for they shall never cease to be amused!”
Go on, forward this to your friends. You know you want to!
The
U.S. Court of Appeals Court for the Fifth Circuit has ruled in a 2-1
decision that the public has the First Amendment right to record
activities of law enforcement because it ensures cops "are not abusing
their power."
Follow Photography Is Not A Crime!
The U.S. Court of Appeals Court for the Fifth Circuit has ruled in a
2-1 decision that the public has the First Amendment right to
record activities of law enforcement because it ensures cops “are not
abusing their power.”
The majority ruling came in response to the court’s consideration of the facts in Turner v. Driver, a
lawsuit filed by PINAC video-correspondent and reporter Phillip
Turner following his lengthy detainment by two Fort Worth cops in September 2015
after he refused to provide them with identification while attempting
to record the Fort Worth police station across the street.
While recording the station, two Fort Worth officers named Grinalds and Dyess approached Turner, asking for identification.
“How’s it going, man? Got your ID with you?”
In the video, seen below, Turner, who operates the YouTube channel The Battousai, asks the officers if he’s being detained.
Officer Grinalds affirmed Turner was being detained for an
investigation and began down the rabbit hole using alarmist rhetoric
saying he had the “right” and “authority” to know who was “walking
around our facilities.”
Turner chose to flex his rights, refusing to provide identification or state his name.
Instead, he inquired, “what happens if I don’t identify myself?”
“We’ll cross that bridge when we get to it,” officer Grinalds says, continues repeating his request for Turner to identify.
Turner continues denying Grinalds’ requests.
Then, without warning, Grinalds suddenly handcuffs Turner and seizes his camera.
“This is what happens when you don’t identify yourself,” he spited
Turner, threatening to fingerprint him in order to learn his identity
before leaving him in the back of the patrol car to “sweat for a while
with the windows rolled up.”
Turner bangs on the door, saying no air was reaching the back seat.
A supervisor, Lieutenant Driver, arrived and approached Grinalds and
Dyess who “seemingly ignored Mr. Turner” as he “sweat” inside the
patrol car with no air.
The three officers then rolled down the windows to the patrol car,
found Turner lying down in the back seat and asked him what he was
doing.
Turner explained again he was taking pictures from the sidewalk across the street.
Lt. Driver repeated the request for Turner’s identification.
Turner refused once again saying he chose not to provide the officers
with identification because he hadn’t committed a crime and wasn’t
lawfully under arrest.
“You’re right,” says Lt. Driver before walking away to talk to Grinalds and Dyess.
Driver returns to talk to Turner.
“You guys need to let me go because I haven’t done anything wrong,” Turner tells Driver.
Driver walks away again, makes a phone call and talks again with Grinalds and Dyess.
The three officers returned to the patrol car, lecturing Turner with more alarmist cop rhetoric before finally releasing him.
In October 2015, Turner named Driver, Grinalds and Dyess as
defendants in a civil rights lawsuit, suing them in their individual
capacities, alleging the trio violated his First, Fourth and Fourteenth
Amendment rights.
However, the trial court dismissed the case granting the officers
qualified immunity from being sued because Turner failed to show how his
First Amendment right to record police was clearly established.
Upon appeal, the Fifth Circuit concurred with the trial court’s
ruling because the right to record the police hadn’t been ruled on by
the Fifth Circuit or the U.S. Supreme Court, but ultimately concluded
the First Amendment right to record police does exist, ruling that for
future cases, the court would hold citizens do have that right with
time, manner and place restrictions.
“Four other circuits have made that determination and no circuit has ruled otherwise,” Senior Judge Jacques Wiener wrote.
“Filming the police contributes to the public’s ability to hold the
police accountable, ensure that police officers are not abusing their
power, and make informed decisions about police policy,” Wiener wrote in
the February 16 opinion. “Filming the police also frequently helps
officers: for example, a citizen’s recording might corroborate a
probable cause finding or might even exonerate an officer charged with
wrongdoing.”
Upholding the trial court’s First Amendment rulings, the Fifth
Circuit ruled the trial court judge erred by dismissing the Grinalds’
and Dyess’ qualified immunity claims for detaining Turner without having
probable cause a crime had occurred.
So the appeals court ruled while Grinalds and Dyess were immune to
Turner’s First Amendment claims because the right was not clearly
established at the time he was detained.
But from February 18 forward, the Fifth Circuit concludes “that First
Amendment principles, controlling authority, and persuasive precedent
demonstrate that a First Amendment right to record the police does
exist, subject only to reasonable time, place, and manner restrictions.”
“The officers’ handcuffing Turner and placing him in the patrol car,
as alleged in the amended complaint, were not reasonable under the
circumstances,” the court ruled.
For more analysis of the decision, read the article on Techdirt.
OFF THE WIRE Introduction
High speed police pursuits constitute one of the most dangerous
aspects of police work. Police shootings garner more attention, but
many people are killed or severely injured as a result of fleeing
suspects and pursuing police officers. Hollywood movies typically
depict police officers in “hot pursuit” of a dangerous criminal, but
virtually never depict wholly innocent people, such as child passengers
in the suspect’s vehicle, or pedestrian bystanders, being killed in
crashes and yet they are among the casualties of high speed chases.
Pursuit policies vary among police departments and in different
geographical jurisdictions depending upon whether a city, county, or
state legislature has chosen to address police pursuits. This primer
will provide an overview of this controversial subject and will
recommend that police commanders and policymakers impose restrictions on
police pursuits in order to enhance public safety. The Controversy
When a police officer activates his vehicle’s siren and emergency
lights, drivers are legally obligated to yield to that show of authority
and to pull their vehicles over to the side of the road to await
further instructions from the officer. It is illegal for a driver to
disregard the siren or emergency lights—especially in an attempt to
elude the police. In the vast majority of cases, drivers comply with
the law and pull over to the side of the road. However, there are
thousands and thousands of cases every year where drivers break the law
and try to speed away and elude the police. When those situations
arise, the police face a dilemma. On the one hand, they are expected to
apprehend lawbreakers and keep the community safe. If they don’t
pursue the violator, he might never be caught and he might also harm
others as he accelerates in his bid to get away. On the other hand, the
pursuit itself creates a danger by having another vehicle, the police
cruiser, attempting to match the now reckless speed of the suspect
vehicle.
When people get killed or injured in crashes from police pursuits, a
heated debate typically ensues over the cause of the accident. Was it
the suspect’s failure to pull over, or was it the police officer’s
decision to pursue the suspect at high speeds? Here are a few chases
that ended with tragic results:
In June 2016, Officer Stacey Baumgartner was in pursuit of a man who
had allegedly urinated in public, and then drove away. As
Baumgartner’s cruiser sped into an intersection, she was hit by an SUV
carrying a family of seven. Both Baumgartner and an 11-year-old boy in
the SUV died in the crash.
In May 2013, police received a call about several women who had
stolen some merchandise from Macy’s and departed in a waiting car.
Several police cars chased the women’s vehicle at speeds exceeding 100
mph. The women eventually sped down a freeway exit ramp, ran a red
light, and then crashed into Rosabla Quezada, who was driving her three
sons home from school. Quezada was killed and her 5-year-old son, Jose,
was left with brain damage.
In June 2013, high school senior Patrick Conway was out riding his
Honda motorcycle. A state trooper pulled him over because he did not
have a license plate. As the trooper stepped out of his cruiser, Conway
sped off. A few minutes later, after weaving through traffic at high
speeds, Conway collided with a BMW and was killed.
In July 2012, a convenience store manager called the police at 4
a.m. to report that some teenage girls had just shoplifted some
merchandise and had driven away. When a police officer spotted the
suspect vehicle, he gave chase. A few minutes later, the carload of
young girls crashed into a utility pole. One of the passengers,
12-year-old Casey Grace, was sent to Cincinnati Children’s Hospital
Medical Center, where she was listed in critical condition.
In September 2012, Officer Mark Taulbee heard a radio dispatch at
2:30 a.m. that a man had taken a woman’s car after a domestic
disturbance. When Taulbee saw the Nissan Altima, he started to pursue
it. Shortly thereafter, Taulbee was killed after he lost control of his
car and it flipped over into a ditch on the side of the roadway.
It is true that the suspect-driver is always partially responsible
(and sometimes fully responsible) for any property damage or crash
casualties because, as Supreme Court Justice Antonin Scalia once
observed, it takes at least two drivers to have a chase.
And yet it is not uncommon to find police officials trying to shift
all responsibility for any harmful consequences on to the suspect-driver
with the argument that had the suspect simply pulled over, as he is
legally obligated to do, there would not have been any crash casualties.
That sweeping claim is misleading and self-serving. If an elderly
lady obstinately refuses a police command to step out of her parked
vehicle, the officer would not be justified in hitting her over the head
with a baton. Similarly, if a shoplifter keeps running after an
officer shouts “Halt!” the officer would not be justified in shooting
him in the back. Disobedience to governmental authority cannot excuse
brutality. By the same reasoning, police pursuits can and should be
evaluated separately from the suspect’s wrongful actions. Best Practices
Federal appellate Judge Frank Easterbrook has suggested a
cost-benefit analysis of high-speed chases. According to Easterbrook,
such an analysis would “consider not only the risks to passengers,
pedestrians, and other drivers that high-speed chases engender, but also
the fact that if police are forbidden to pursue, then many more
suspects will flee—and successful flights not only reduce the number of
crimes solved but also create their own risks for passengers and
bystanders.” A rigorous academic analysis is beyond the scope of this
primer, but it will be useful to briefly address several preconceptions
that would be pertinent to such an analysis, and also to consider the
experience of certain jurisdictions that have embraced pursuit
restrictions.
The first preconception is that if high-speed pursuits are
restricted, “everyone will just go ahead and flee the police.” This is
an exaggeration. As noted above, in the vast majority of cases, drivers
yield to the police siren and quickly pull over. To do otherwise is to
commit a new offense, something the vast majority of people will
refrain from doing. Limiting pursuits may bring about some increase in
flight cases, but that would likely be on the margin and has to be
weighed against the crashes and injuries averted because of the pursuit
restrictions.
A second preconception is that high speed pursuits typically involve
dangerous criminals. The thinking here is that restricting pursuits
cannot possibly make the community safer because with more violent
offenders avoiding arrest, they will be free to create more mayhem in
the community. This preconception is perhaps understandable because it
is a very common scenario in the movies and on television for the police
to be chasing a dangerous villain at high speeds. Yet, experience shows
that most pursuits are triggered by minor infractions. According to
USA Today, 90 percent of the police chases in California between 2002
and 2014 were for vehicle code violations, not violent crimes.
A third preconception is the idea that restrictions on police
pursuits are tantamount to complete non-enforcement of law. On this
view, restrictions on police pursuits will make the community less safe
because the scofflaws will be emboldened to commit even more
infractions—even if they’re not violent offenses. It is a mistake,
however, to make the leap from certain pursuit restrictions to
non-enforcement. To take one example, some police departments will have
police cruisers back off a chase on the ground but have a helicopter
track the suspect vehicle from above. When the suspect exits the
vehicle, patrol officers are alerted and they will then move in to make
an arrest.
As noted above, pursuit policies vary among America’s 18,000 police
departments. In general, policies and practices have tightened somewhat
over the past 20 years. Whether because of increased media scrutiny,
litigation fears, local politics, or conscientiousness, more and more
departments are embracing pursuit restrictions. Here are several best
practices:
Some departments restrict the types of crimes that can trigger a
chase. For example, allowing police to chase a suspect who committed a
violent felony, but not allowing pursuits for traffic violations.
Some restrictive policies focus on road conditions, including weather and traffic.
Some departments prohibit certain tactics used by officers during a
pursuit in order to minimize the risk of an accident, such as ramming
techniques.
Most importantly, many jurisdictions require officers to get
supervisor permission in order to initiate a pursuit. The purpose of
this requirement is to take the decision out of the hands of the officer
in the field, who is likely experiencing an adrenaline rush and tunnel
vision.
To identify best practices is not to say that they are common. It is
unfortunate that many police departments either continue to leave the
pursuit decision to the discretion of officers in the field, or do not
seriously discipline officers who disregard departmental policy. Policy
changes are too often ad hoc, after a tragedy, rather than after
thoughtful consideration of the latest research.
There is empirical evidence, for example, showing that suspects are
likely to slow down to a safe driving speed if pursuits are called off.
University of South Carolina Professor Geoffrey Alpert interviewed
suspects after they were apprehended and found that 70 percent of
suspects said they would have stopped their flight when they “felt
safe.” They classified “safe” as being 2 miles or 2 city blocks ahead
of police.
In 2010, the Milwaukee Police Department put in a place a more
restrictive policy after pursuits caused the deaths of four innocent
people in a short period of time. After the first tragedy, Police Chief
Ed Flynn defended his department by telling everyone that the chase
officers “followed department policy.” After the second tragedy, Chief
Flynn came to recognize that another policy would make his community
safer. Chief Flynn acknowledged that his immediate duty is “to protect
life: the lives of the innocent, the lives of police officers and the
lives of offenders.”
In 2006, the Dallas Police Department (DPD) put in place one of the
most restrictive pursuit policies in the country. In 2011, while
slightly altering the pursuit guidelines, the Dallas Chief of Police
David Brown noted, “injuries and deaths to both officers and citizens
have plummeted since the institution of the current policy. This must
continue to be our focus when deciding to engage in high-risk activities
such as police pursuits.” DPD restricts pursuits to situations where
the suspect “poses a danger to the public that outweighs the risks posed
by the pursuit” – e.g. violent felonies.
One important way to avoid tragedies is to find alternatives to high
speed chases. “Bait vehicle” technologies have provided law enforcement
with a powerful tool to catch car thieves in a safe and effective
manner. With the ability to shut down the engine of the bait car
remotely, there is no need for a high-speed pursuit. Another alternative
tactic, as mentioned above, is helicopters. While helicopters are
expensive and not all police departments can afford them, it would be
worthwhile to improve regional and interagency cooperation in order to
avoid, or at least reduce, high-speed pursuits. Drones will doubtless be
tested for pursuit surveillance as a less expensive substitute for
helicopters over the next ten years.
A serious obstacle that has hobbled a thorough cost-benefit analysis
of police pursuits has been inadequate information. The National
Highway Traffic Safety Administration (NHTSA) tries to track the
circumstances of all automobile fatalities. According to NHTSA,
pursuits kill about 350 people every year. However, NHTSA’s tally has
severe limitations. First, NHTSA only tallies deaths, not injuries.
Second, even NHTSA’s fatality numbers are very likely to undercount the
actual figure. This is because NHTSA relies upon police department
reports on the automobile deaths. If the fleeing suspect hits a tree
and dies, officers might report the fatality, but omit the circumstances
of the police pursuit. USA Today discovered and reported on such discrepancies in NHTSA’s statistics.
In 2014, Texas created a public statewide database for
officer-involved shootings. Every police agency must report shootings
to the state attorney general. The attorney general (AG), in turn, is
required to post information about the shooting within five days. Each
year, the AG must issue a public report summarizing his annual findings.
Unlike some questionable proposals for federal data-collection, this
state-level data-gathering model is fully consistent with the
constitutional principle of federalism. Every state should have such a
system in place, not just for shootings, but for police chases as well,
whether there are casualties or not. One of the benefits of
decentralized policing is that departments can experiment with different
policies, the results can then be studied, and best practices
identified or refined. To make the reporting model work, however, state
policymakers must find a way to sanction local departments that do not
meet their reporting responsibilities. Conclusion
High speed police pursuits are inherently dangerous. They too often
end in crashes that kill and severely injure people, including innocent
bystanders.
Many police pursuits are in response to non-violent offenses or even
minor infractions. The risks posed by high speed pursuits in such
situations are unjustified.
The legal standards that apply to police pursuits vary across
jurisdictions, but it is possible to embrace best practices that go
beyond the legal minimum standard.
Although there are about 100,000 police pursuits and hundreds of
casualties every year, policymakers have largely neglected this
dangerous aspect of police work. State-wide policies should be in place
to both restrict and track police pursuits.
Suggested Readings
Geoffrey A. Alpert and Cynthia Lum, Police Pursuit Driving: Policy and Research (New York: Springer, 2014).
Kay Falk, “Chase or Not to Chase?: That’s the Question Facing Police
Departments Around the Country,” Law Enforcement Technology, Volume 33,
Issue 10 (October 2006).
Thomas Frank, “High-Speed Police Chases Have Killed Thousands of Innocent Bystanders,” USA Today, July 30, 2015.
Hugh Nugent, et al., “Restrictive Policies for High-Speed Police
Pursuits” (Washington, DC: National Institute of Justice, Issues and
Practices Series No. 122025) (1990).
Richard G. Zevitz, “Police Civil Liability and the Law of High Speed Pursuit,” Marquette Law Review 70 (1987): 237.
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