Tagged: unmarked police impersonators
January 18, 2016 at 9:26 pm #176606511
My name is Kevin and I’m active in Washington State in trying to end the use of unmarked police cars for traffic stops. While the law in Washington already makes it illegal, though those laws being disregarded, there are also fourth amendment issues with these stops that, if brought up in court cases, could help solve this problem nationwide. Below is an excerpt from one of my recent court briefs that addresses this issue. I want this info to be available for people to use in their own cases.
Stops conducted with unidentifiable vehicles are a violation of fourth amendment protections from unreasonable seizure. A “seizure” occurs when a motorist has stopped for a vehicle with flashing lights. When the motorist has ceased movement, shut off their engine, placed their hands on the wheel, they have submitted to the authority of the officer making the stop, and that constitutes a “siezure” under the fourth amendment.
The fourth amendment protects citizens from “unreasonable” siezure, and this raises the issue of whether a “siezure” performed with a vehicle that cannot be identified as belonging to a public agency is reasonable.
In Wilson v Arkansas, the U.S. Supreme Court held that Fourth Amendment reasonableness depends in part on whether officers knock and announce their presence prior to entering a home to conduct a search. The rationale behind this rule was articulated in Hudson v Michigan, where the majority explained that the “knock-and announce” rule protected three vital interests: life and limb, property, and privacy. In the case of Newell vs. City Of Salina, the Kansas District Court found that the Wilson decision extends beyond the home, and declined to dismiss that case on grounds of qualified immunity.
In Hudson, Justice Antonin Scalia articulated three interests protected by the knock-and-announce rule: the protection of life and limb, the protection of property, and the protection of privacy and dignity. Justice Scalia pointed out that the first of these interests—protection of life and limb—is implicated in the knock-and-announce context because individuals typically are very protective of their homes. An unannounced entry is likely to provoke a violent self-defensive reaction. Further, as was demonstrated in the case of Jackson vs. Sauls, a violent self-defense reaction can result in a violent response from police, causing further danger to human life. In that particular case, a violent response from police led to the death of an individual who was lying on the ground trying to surrender.
Being confronted with an unidentified hostile individual can also result in an attempt to flee, which also carries a risk of violent response from police. In the case of Gutierrez-Rodriguez v Cartagena, the plaintiff was a twenty-two year old with no criminal record who, with his girlfriend, decided to park his car in a secluded spot to appreciate the lights of distant San Juan. A group of undercover officers happened to be conducting preventative rounds in an effort to disrupt the local drug trade. Upon seeing Gutierrez’s car parked with its lights off, the officers exited their car and approached with their guns drawn. At no point did they identify themselves. When Gutierrez saw the unidentified officers approaching his car with their guns drawn, he started his engine and tried to drive away. The officers opened fire, and one bullet struck Gutierrez in the back. As a result of the gunshot wound, Gutierrez was permanently paralyzed from the waist down.
Each of these cases and the fourth-amendment issues surrounding them, as well as numerous other cases, are detailed in the paper titled “An Argument For Requiring Officer Identification” by attorney Jeffrey A. Crapko, which is appended to this brief.
Traffic stops conducted with unidentifiable vehicles carry all the same risks inherent with misidentification of police. In the majority of these stops, the motorist being stopped is unable to discern whether they are being stopped by a real police officer. This carries a risk that the motorist may attempt to flee, take self-defense action, or make preparation for self-defense action, none of which can be considered entirely unreasonable in the unknown situation that has been created.
If a motorist flees from an unknown vehicle with flashing lights but no markings, and the person stopping him is a real police officer, that officer will then pursue. That pursuit could involve gunfire, an accident, or intentional crashing of the motorist’s car by police, all of which carry risks of injury, property damage, and death.
If a motorist assumes the officer is not real and takes self-defense action, that incurs risk to the officer, as well as the risk of death to the motorist from the officer’s violent response.
If a motorist wishes to prepare for self-defense should the approaching officer not be a real one, the only way to do that is to have a weapon close at hand. A real police officer who sees a weapon close at hand in a traffic stop will in nearly all cases assume the motorist means to attack, and will immediately shoot the motorist.
If on the other hand the motorist stops in a compliant manner, and the person stopping the motorist is not a real police officer, then the motorist has just placed himself/herself completely at the mercy of the impersonator, an act which carries a virtual certainty of harm.
In some cases it is possible for the motorist to call for verification the stop is real, but this can not be relied upon in every instance. Besides which, when one sees nothing different than one would expect from an unmarked stop, one typically feels no need for such verification, and thus that call is almost never made, the motorist simply stops.
The situation created by these stops forces motorists into an impossible choice. They can choose to stop in a submissive manner and risk being at the mercy of an impersonator who means them harm. They can choose to take protective measures or refuse to stop, and risk the wrath of a hostile and dangerous police officer. Because of the choice they are confronted with, the mere fact that a motorist elected to stop “voluntarily” cannot be considered a defense for this illegal conduct, as a great many of these motorists who do not wish to stop for unidentifiable cars are simply electing the option they feel carries less risk of harm to themselves.
To conduct traffic stops and “sieze” citizens in a manner that is indistinguishable from a stop by a criminal police impersonator who means the motorist harm carries great risk to life and limb, and property, and under those circumstances they cannot be considered a “reasonable” siezure under the Fourth Amendment.
February 5, 2016 at 4:13 pm #176608478
If you have a court brief you should have a live case to go with it. What are the circumstances of your case?
February 5, 2016 at 9:20 pm #176608482
I’m working with others on three cases in the appeal process in Washington State, all speeding tickets. All are discussed on my website. The major problem I’m having in Washington State is that unmarked stops are already illegal under statutory law, and our supreme court only wants to consider cases that involve constitutionality of laws. One of my cases was just denied review on that basis. That’s why I’m posting this info on constitutional issues so people can see it nationally and put it to use in states where unmarked stops are legal under statutory law, and in that way the constitutionality of those statutes can be challenged.
September 10, 2017 at 10:05 pm #176668389
It’s been my experience in State Courts that constitutional questions take a backseat to questions of law as applied to a particular set of facts. That being said, you have a good constitutional argument. However one of the best untested briefs I’ve seen on the issue revolves around dispelling all the vagueness in the statute. It was written in 2015 and although some links are no longer applicable it’s a great deal of research with the current statute and well worth the read. If you want to email me personally I’ll be glad to send it to you – no way to attach it here…
September 11, 2017 at 2:07 am #176668391
I appreciate that, but vagueness arguments aren’t really interesting to me. If you win a case on vagueness all they have to do is tweak the law to fix the vagueness and all that work was for nothing. I want to settle the whole issue of constitutionality of stops with unidentifiable vehicles. A district or superior court certainly won’t consider that, but an appellate court will have to give some attention to it, and the state supreme court definitely will if the case gets accepted.
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