Category: Motorist Freedom

Saturday Links

Saturday, October 29th, 2011

Morning Links

Tuesday, October 25th, 2011

D.C. Arrests Thousands for Expired Tags

Thursday, October 20th, 2011

So it’s worse than initially reported.

The D.C. police department has released preliminary statistics on the controversial practice of arresting drivers whose vehicles are unregistered or have expired registration. The numbers indicate that the practice is more widespread than previously thought, with several arrests per day on average.

In the one-year period starting Oct. 1, 2009, records indicate that 2,163 persons were arrested in the District for expired tags. In the subsequent year, ending in September, arrests declined dramatically, to 1,334.

Funny thing about numbers. The article notes that of those 3,500 people arrested, only about 250 were actually put in a jail cell. The disparity between the two numbers first evoked in me an, “Oh, well that’s not so bad” reaction. So just consider that latter number on its own: Over two years, 250 people were jailed in D.C. for having expired license plates. Absurd.

Lunch Links

Thursday, October 20th, 2011

Thousands of Florida DUI Arrests May Be Tainted

Thursday, October 13th, 2011

This isn’t the first time something like this has happened.

Thousands of people in Florida convicted of DUI may not have been drunk at all. They very well may have been under the allowable blood alcohol limit. The problem may have been law enforcement not calibrating the breathalyzer called the Intoxilyzer 8000.

Now, the 10 News Investigators have uncovered documents and emails that prove the state knew there were problems and didn’t do anything to correct it for more than two and half years . . .

The 10 News Investigators obtained letters where a Sarasota deputy noticed there was a problem recording breath samples and breath flow levels as far back as 2007. He wrote in his notes that he even alerted an inspector who agreed there was a problem.

Those notes prompted an email from the head of the breath testing program, Laura Barfield, telling inspectors not to write down flow sensor problems in their field notes. . .

“As we found, almost half of every Intoxilyzer 8000 used in the state of Florida is not properly calibrated. There are enormous implications. I would tell anybody convicted of DUI using the breath test over the past few years they may want to talk to their lawyer because this information the state wouldn’t tell anybody about,” says Harrison.

While several people, including Bob Marois, who were arrested for DUI using faulty machines have had their convictions thrown out, they ended up losing their licenses for up to a year, having their mug shot forever online, and spending thousands defending themselves.

Not to mention that a DUI can get you fired from your job, ruin your reputation, and have all sorts of other extra-legal implications. It’s really astonishing (in a moral way, not a surprising way) that these idiots could allow people’s lives be seriously disrupted, sometimes ruined—and for more people to continue to be falsely implicated—rather than admit to a fixable mistake.

In a just world, the people who covered all of this up would suffer the same sort of repercussions those falsely convicted of DUI did. That isn’t going to happen.

Jerry Brown Vetoes Bill That Would Require a Warrant for Cell Phone Searches

Monday, October 10th, 2011

This is really one of the scarier recent assaults on the Fourth Amendment.

California Gov. Jerry Brown is vetoing legislation requiring police to obtain a court warrant to search the mobile phones of suspects at the time of any arrest.

The Sunday veto means that when police arrest anybody in the Golden State, they may search that person’s mobile phone — which in the digital age likely means the contents of persons’ e-mail, call records, text messages, photos, banking activity, cloud-storage services, and even where the phone has traveled.

Police across the country are given wide latitude to search persons incident to an arrest based on the premise of officer safety. Now the nation’s states are beginning to grapple with the warrantless searches of mobile phones done at the time of an arrest.

Brown’s veto message abdicated responsibility for protecting the rights of Californians and ignored calls from civil liberties groups and this publication to sign the bill — saying only that the issue is too complicated for him to make a decision about. He cites a recent California Supreme Court decision upholding the warrantless searches of people incident to an arrest. In his brief message, he also doesn’t say whether it’s a good idea or not.

Instead, he says the state Supreme Court’s decision is good enough, a decision the U.S. Supreme Court let stand last week.

Last time I posted on this, commenter “Puzzling” made a very good point.

Cell phones are also not simple “containers” to the extent that modern phones show both local data and vastly more data information stored in cloud services, often all integrated together seamlessly to the user. These law enforcement searches are actually retrieving information stored in “containers” elsewhere.

So a traffic infraction can now lead to a search of your email (much of which may be stored on off-site servers, but still downloadable from your cell phone), GPS history, cell phone photos and video, web browsing history, history of phone calls placed and received, text message history, and anything else you do with your cell phone. Troubling, to say the least.

Late Morning Links

Friday, October 7th, 2011

Morning Links

Thursday, October 6th, 2011

I’m speaking at Tulane law school at noon today.  The talk is free and open to the public. So come on out.

This Week in Police Professionalism

Saturday, October 1st, 2011

More stories you couldn’t make up:

The Internet is full of license plate covers that claim to be able to help drivers avoid getting a red light or speed camera ticket.

According to New Orleans Police Superintendent Ronal Serpas, one of his high-ranking officers, Capt. Michael Glasser, had this type of distortion device on his police cruiser. Serpas took away his car, and the matter is now under review by the NOPD’s Public Integrity Bureau.

“No police officer has the right to violate the rules and the law and police supervisors are especially responsible for insuring that the officers follow the rules,” said Serpas.

According to Louisiana law, license plates “shall be maintained free from foreign materials and in a condition to be clearly legible.”
Glasser’s attorney Frank Desalvo said license plate covers are not illegal.

“I think the state law says if your license plate has to be visible from 50 feet away,” said Desalvo. “I think these things affect the visibility from a certain angle.”

Glasser’s case is particularly thorny because of the unit he commands.

He is the integrity control officer for the Special Operations Division, which also includes highway enforcement, the department that reviews red-light tickets.

“This inquiry is going to get to the bottom of it and it would be terribly troubling to us if a captain who was also responsible for insuring integrity had in fact broken our rules,” said Serpas.

I have no idea if the product Glasser uses it technically illegal under Louisiana law, but it would be interesting to see how many motorists Glasser’s unit has fined for using similar techniques to obscure their license plates from red light cameras. Bonus points: Glasser is president of the New Orleans police union. More bonus points to his lawyer for putting up the “everybody else is doing it” defense.

[Serpasj]  claims there are other police cars out there with illegal tint and improper license plates.

Think about that for a second. Glasser’s attorney is arguing that his client, a high-ranking cop, shouldn’t be disciplined for possibly violating the law because lots of other New Orleans cops also violate similar laws—laws that regular, non badge-wearing residents of New Orleans are expected to follow.

In related news, a Pennsylvania state liquor control officer was arrested over the weekend for DUI.

Saturday Links

Saturday, September 24th, 2011

Speed Limits, Revenue, and Road Safety

Tuesday, September 20th, 2011

Interesting post from the National Motorists Association about a highway in Massachusetts where state officials are keeping the speed limit artificially low, despite plenty of evidence that doing so makes the road more dangerous.

 

Morning Links, All-Criminal Justice Edition

Tuesday, September 13th, 2011

Late Morning Links

Wednesday, September 7th, 2011

Sunday Links

Sunday, September 4th, 2011
  • Lawsuit: Man contends he was arrested for contempt for not standing on his leg. Which the arresting officer had just broken.
  • Another arrest in Austin for providing free rides home from bars. And from the discussion of that post over at Reddit: “I am personally involved in the lobbying effort to keep these guys off the street and honestly the reason is simply to restrict competition.”
  • Nice photo of a runway model.
  • Good roundup of great journalism on the death penalty.
  • Anonymous releases hacked emails from Texas police department. Disturbingness ensues.
  • Dustup of the day: Cato’s Tad DeHaven vs. Lloyd Chapman, head of the American Small Business League.
  • How U.S. companies profited from torture flights.

Ignornace of the Law Is No . . . You Know the Drill.

Sunday, August 28th, 2011

Cops in Florida have written thousands of tickets to motorists for flashing their lights to warn other motorists of speed traps. Problem is, flashing your lights to communicate isn’t against the law in the Florida.

So one motorist has filed a class action.

 . . . the lawsuit says the FHP is well aware they are wrongfully applying the state law and they are doing it as a means of generating revenue. In 2005, a court order was even issued saying the state law doesn’t prohibit the flashing of vehicle headlights.

Campbell isn’t the only one. Since 2005, FHP records show more than 10,429 drivers have been cited under the statute.

In addition to seeking the refund of the $100 ticket, the lawsuit seeks damages in excess of $15,000…

Incentives Matter

Monday, August 22nd, 2011

A New Orleans police officer has been arrested for writing more than 200 phantom seat belt citations. Why would he do that?

Glenn Gross, who works in the NOPD’s information technology department, was writing bogus tickets for seat-belt violations, allowing him to collect extra pay, Superintendent Ronal Serpas said.

The department received a federal grant in June that pays for overtime for officers who enforce seat-belt laws. Rather than doing the work and writing up motorists who had violated the law, Gross, 44, wrote tickets to phantom motorists, officials said.

Officials said the investigation is continuing and that other officers, and possibly a supervisor, are also under scrutiny. Serpas said he couldn’t say how much overtime Gross collected as a result of the scam.

You know, libertarians are often mocked when we decry mandatory seat belt laws, or when we get all hot and bothered about federal meddling in trifles like this.

Even if you don’t much care about personal freedom, here’s why this stuff matters: Put aside this particular cop and his made-up violations. Put aside the others who may also be implicated in the investigation. Put aside also the (legitimate) concerns about how such incentives might encourage bad cops to fine actual motorists who are wearing seat belts, or about how primary seat belts laws give police another reason to make pretext stops that can then lead to dubious searches and harassment.

Even assuming that everybody’s motives are on the up and up, here, you still have a city with a murder rate that’s ten times the national average. And here you have a federal program that hands out bonus checks not to cops who spend their time walking beats in dangerous neighborhoods, who patrol high-crime areas, or who put in overtime to solve murders . . . but to cops who hunt down motorists who aren’t wearing their seat belts.

Morning Links

Tuesday, August 16th, 2011

Texas Appeals Court: Motorists Have No Right To Potentially Exculpatory Dashcam Footage

Monday, August 15th, 2011

This is pretty incredible:

Drivers have no recourse if police say the tape from a dashboard-mounted video camera is not available, according to a ruling Wednesday from the Texas Court of Appeals. Mark Lee Martin wanted to defend himself against drug possession charges filed in the wake of an August 29, 2008 traffic stop, but he was told no video was available.

Travis County Sheriff’s Deputy Darren Jennings claimed that he pulled over Martin that evening because he failed to signal a left-hand turn. Within less than two weeks after the incident, Martin’s attorney formally requested that the department preserve video evidence from the stop. Subpoenas were issued to ensure “all videos and dispatch calls” would be saved. At trial, Jennings was asked why the camera evidence had not been kept.

“Since I didn’t put it in my report it wasn’t preserved because I didn’t believe it had any type of evidential value,” Jennings told the court.

The dashcam is automatically activated when an officer turns on his emergency lights. Department policy states that all video must automatically be saved for thirty days. Jennings could not say whether his machine was operating that night, but he would have noted either at the beginning or end of the shift if the device had not been functional. Jennings stated that the only way to know for sure if the video had been taken would have been if he had preserved the video. Martin argued the police were obviously hiding evidence.

“The officers intentionally destroyed the video and thereby put exculpatory evidence as far as the search is concerned or evidence favorable to the accused out of the reach of the accused,” Martin’s attorney claimed. “We feel that for no other reason the search is invalid and any evidence found as a result of that search should be suppressed.”

The appellate court found no merit in this argument.

“We agree with the state that the record supports a finding by the district court that the police did not act in bad faith,” Justice Bob Pemberton wrote. “The United States Supreme Court has held that ‘unless a criminal defendant can show bad faith on the part of the police, failure to preserve potentially useful evidence does not constitute a denial of due process of law.’”

The court found no evidence of bad faith because the officer testified that he had “no clue” whether there even was a recording made.

Relevant excerpt from my Reason piece “The War on Cameras”:

Last March, Justice Lee Ann Dauphinot of the Second Court of Appeals in Texas complained in a dissent that when defendants accused of driving while intoxicated in Fort Worth challenge the charges in court, dash-camera video of their arrests is often missing or damaged. “At some point,” Dauphinot wrote, “courts must address the repeated failure of officers to use the recording equipment and their repeated inability to remember whether the car they were driving on patrol or to a DWI stop contained the video equipment the City of Fort Worth has been paying for.”

Well I guess they are addressing it, now. They’re giving cops a how-to guide when it comes to destroying dash cam footage that makes them look bad, or that could exonerate a motorist: Just make it look like you’re incompetent, not malicious.

Me on Stossel’s Show

Sunday, August 7th, 2011

My segment on drunk driving laws aired Thursday night. You can watch it here.

Here’s the column where I lay out my argument.

 

Sunday Links

Sunday, August 7th, 2011

Morning Links

Friday, July 22nd, 2011

Morning Links

Wednesday, July 20th, 2011

Sunday Links

Sunday, July 17th, 2011
  • Three members of Kansas City SWAT team indicted on federal conspiracy charges.
  • Jogger arrested for warning motorists of a speed trap.
  • Video of police in California detaining a man who is not violating the state’s open carry law.
  • Alabama allows judges to override jury sentences in death penalty cases. Study shows that 92 percent of overrides are when judges impose a death sentence over the wishes of a jury.
  • Yes, it’s true. If the government monitors you for every minute of every day, there’s a good chance that if you’re ever falsely accused of a crime, footage from government cameras could get you off the hook. This is not a persuasive argument in favor of government monitoring you every minute of every day.
  • Adam Mueller and Pete Eyre go on trial tomorrow in Greenfield, Massachusetts. They’re charged with felony wiretapping for openly recording at a police station.

Maker of Ignition Interlock Devices: Public Safety Demands a Law Requiring Ignition Interlock Devices

Monday, July 11th, 2011

Shocking, isn’t it?

But good on the Washington Times for exposing the money grab behind the “public safety” campaign to mandate the devices for first-time DUI offenders.

A bill that would withhold up to 5 percent of each state’s highway funding unless that state requires such as device in the cars of all convicted drunken drivers was introduced in the Senate in February by Sen. Frank R. Lautenberg, New Jersey Democrat, and last month in the House by Rep. Eliot L. Engel, New York Democrat.

For the past 18 months, lobbyists for “ignition interlocks,” as they are called, have jockeyed to inject a provision into the crevices of the transportation reauthorization bill, a tentative outline of which was released Friday by Rep. John L. Mica, Florida Republican.

The hospitality industry says a mandate could pave the way for a different type of sensor, other than a Breathalyzer, to be made standard in all cars within five years, in line with a separate House proposal introduced last month that would allocate $60 million over that period to develop the technology. Those devices would be set to detect blood alcohol content near the legal limit, likely through skin contact with the steering wheel.

The Coalition of Ignition Interlock Manufacturers hired lobbyist David Kelly, a former chief of staff and acting administrator at the National Highway and Traffic Safety Administration. Mr. Lautenberg’s former chief of staff, Tim Yehl, now lobbies for Ignition Interlock Systems of Iowa . . .

The manufacturers are taking a page from a well-worn playbook: lobbying campaigns in which private companies advocate for government requirements that would make them rich by aligning with activist forces who provide moral pronouncements that are appealing to politicians and – once on the table – the public . . .

“The overwhelming majority of entities that want to regulate in some way are composed of Baptists and bootleggers,” said Peter Van Doren, editor of the quarterly journal Regulation, referring to the two groups that pressed for Prohibition 90 years ago: religious zealots who viewed alcohol as immoral and the gangsters who profited from its illegal status.

Manufacturers are “probably sincere and also making an alliance with Mothers Against Drunk Driving – the mothers would be the Baptists,” he said. “They’re going to them and saying if you mandate this thing, your version of the world will come along, and it just so happens we’ll get rich – but of course they don’t say that part.”

I’m fine with mandating these devices for repeat offenders. But first-time offenders is too much, especially for someone barely above the too-low legal limit. And I don’t think it’s unreasonable to worry about the possibility that this campaign will expand to demand the devices in all new cars.

I’d also add here that there may indeed be good public safety arguments for this policy. I just don’t think the anti-alcohol fanatics can be trusted when they try to make them. A few years ago, for example, I wrote about a MADD report that “evaluated” DWI fatality data in all 50 states. Somehow, MADD’s objective analysis determined that every state was in urgent need of an ignition interlock law, regardless of whether the state’s DWI stats were trending up, trending down, or unchanged.

Why the Exclusionary Rule Matters

Thursday, June 30th, 2011

In Tennessee, a big drug bust is in jeopardy after a federal judge found that police had no reason for the traffic stop that led to the subsequent search and arrest:

It should have been a victory for Tennessee narcotics policing. Drug task force agents see a car zoom past on Interstate 65 South in Robertson County — prime conditions for the kind of pretextual traffic stop that could lead to a drug search. Indeed, a search of the late-model Ford sedan reveals that the two Hispanic men from Dayton, Ohio, are drug mules who’ve been paid a pittance to risk transporting a half-kilo of heroin down a known drug corridor . . .

Instead, Lt. Shane Daugherty, a team supervisor with the 17th Judicial Drug Task Force and perhaps one of the most high-profile narcos in the state, now finds his own credibility in question. Meanwhile, the Ruizes are all but ready to walk out of jail as free men. With one ruling, federal district Judge Aleta Trauger rendered the evidence Daugherty discovered off limits and the prosecution’s case against the cousins virtually unwinnable.

The message Trauger’s memo sends to the agent and the Tennessee law enforcement community in general is clear: Have probable cause nailed down — or suffer the consequences in court. At issue is not whether one or both of the Ruizes were knowingly transporting heroin, but whether they were ever speeding in the first place.

The article goes on to detail how the dash cam and other evidence strongly suggests the Ruizes were not speeding, and that Daugherty pulled them over on little more than a hunch. He has also since changed his story, a couple times.

Critics of the Exclusionary Rule argue that it only protects the guilty. And sure enough, here you have the likely outcome that a couple drug runners—and the drug distributor they gave up—will go free.

But what about all the innocent, likely brown or black people Daugherty also pulled over on a hunch? I suppose it’s possible that every illegal stop Daugherty made solely on instinct turned up drug runners, but that seems unlikely. The fact that his dash cam was set to begin recording only after he turned on his lights—conveniently leaving out whatever traffic violation led to his decision to pull the motorist over in the first place—suggests that this wasn’t his first illegal stop. Most of the innocent people harassed by such stops aren’t likely to file a complaint, much less a lawsuit. Even if they have the inclination to sue, thanks to qualified immunity they aren’t likely to find an attorney to take their case. That’s because even in the unlikely event they can get past qualified immunity, it’s unlikely that a judgment for an illegal roadside search would win enough in damages to make a lawsuit worthwhile. It would take a group like the ACLU, amassing dozens of plaintiffs, to have any real effect. (The ACLU has filed and won such suits. But they certainly don’t have the resources to address this stuff everywhere it happens.)

So without the Exclusionary Rule (and frankly, even with it), there’s little to keep Tennessee cops from illegally pulling over and harassing innocent motorists. In fact, if you’ll remember back to that Nashville TV news investigation on asset forfeiture last month, there’s a strong financial incentive in favor of profiling motorists. I suppose we could fall back on internal discipline—that new police professionalism Justice Scalia is fond of bringing up. But how many police agencies are going to seriously discipline a cop for making pretext stops if every 10th or 20th such stop results in tens of thousands of dollars for his department?

The Exclusionary Rule certainly isn’t ideal. But it does at least serve as some check on Fourth Amendment violations. It’s really the only check. Daugherty’s career-making bust may now be a career-ending one, especially if he’s designated a “Brady cop.”

Yes, an unsavory character may duck charges in the process, but that’s what gets the public’s attention, which is what forces change. The bigger the fish that gets away, the more attention the Fourth Amendment violation that led to the arrest gets in the press, the more embarrassment subsequently cast on the law enforcement agency in question, the greater the likelihood that said agency will better train its cops in the future (or, if you’re cynical, change its unofficial policy). A cop the Nashville Scene says is one of the most high-profile narcos in the state is now fighting for his career. You can bet that the state’s drug cops now know that there’s a federal district court judge who’s growing suspicious of the way they operate. That means less harassment of innocent motorists.

(In less encouraging news, the Louisiana Supreme Court just went the other way, refusing to throw out evidence gathered after a search based on an police officer’s hunch and the old “furtive gesture” routine.)