A Failure To Respect Driver’s And Citizen Rights Is Unacceptable And A Serious Violation.

A Failure To Respect Driver’s And Citizen Rights Is Unacceptable And A Serious Violation.

What ever Happened To Respect And Manners? I have viewed this video on several different sites, and suffice it to say that it has gone viral.  I have not been able to confirm the authenticity of the video, but it appears to be an officer’s dash camera and depending on the state laws in the Officer’s jurisdiction, would be subject to public disclosure.  It sounds as though the officer mentions “Charleston” and so South Carolina might be a good guess...


Whatever Happened To Respect And Manners?

["Cops Freak Out After Drive..." The YouTube account associated with the video was terminated due to multiple third-party notifications of copyright infringement]

I have viewed this video on several different sites, and suffice it to say that it has gone viral.  I have not been able to confirm the authenticity of the video, but it appears to be an officer’s dash camera and depending on the state laws in the Officer’s jurisdiction, would be subject to public disclosure.  It sounds as though the officer mentions “Charleston” and so South Carolina might be a good guess.

Even if the video is a “dramatization” the point is well made – officers can get very offended when citizens exercise their rights.  Think of the difficulty you might have in telling an officer, in full uniform with pepper spray, badge and sidearm, that he can only search your vehicle, house, backpack, etc. if he has a warrant.  That would be uncomfortable, at best.  But, why?

Isn’t an officer a civil servant who is to embody the “protect and serve” mantra of our civil police forces?  These are public employees who literally, and philosophically, work for us, the people.  Why are we afraid?  Why can they exercise such unfettered authority and aggression?  Why do we need a video before we actual believe this abuse of power and discretionary power exists?

As a practical matter, one might simply answer that people today, not just law enforcement officers, have lost their manners.  We’ve certainly all experienced attitude and/or rude service from someone whom we are paying to provide a service or are buying merchandise.  Sure, people have bad days, but when it comes to police officers, a bad day is simply not an excuse.  That we have lost our manners is not an acceptable excuse either.  We cannot simply choose to stop obeying the Sheriff or Washington State Patrol because they are not polite.

The Department of Justice just concluded an investigation into the Seattle Police Department’s use of force practices and policies.  In short, the federal DOJ concluded that the Seattle Police engaged in a pattern of excessive force in more than half the time during arrests!  Certainly the politics, methods used to make this determination, etc. could be argued for hours; however, it remains clear that something is amiss with those tasked with actually protecting our constitutions and individual rights.  For everyone’s sake, I hope that Seattle is not indicative of how other law enforcement agencies are operated – hopefully, they are the exception and not the rule.  But given this video, perhaps Seattle is the norm?

As a defense attorney defending those accused of alcohol and drug related driving crimes such as Driving Under the Influence Of Alcohol/Drugs (DUI), Physical Control, Minor Operating After Consuming Alcohol, Minor in Possession (MIP), or Unlawful Possession of Marijuana, I have reviewed a number of video and audio recordings like the one here.  While I have never observed an officer as rude as the one in the video, I have certainly seen very aggressive and apparent adverse reactions when citizens have exercised their rights.  I certainly understand the need for officers to make safety their number one priority, but retaliation for exercising one’s rights is unacceptable in a free society.  Furthermore, employing the use of a Taser because it is easier than using social skills or training, to avoid the use of physical force, is also unacceptable.

Why Isn’t There Always A Video Recording Of A Traffic Stop And Arrest?

Camera LenseThe video here captures an officer having a meltdown and verbally abusing a citizen who politely declines an invitation to search his constitutionally protected vehicle unless the officer provides a search warrant.   The irony of the situation is that police guilds, sheriffs, and law enforcement in general, tend to resist the transparency and actual safety that a camera affords.  I believe this is because the risk of the above video being shown to the public outweighs the benefits of government transparency in the minds of law enforcement.

I have asked prosecutors and law enforcement officers why only a very select few Washington State Patrol DUI investigations are captured by video. The canned answer:  it a budgetary problem. Is this true? Or is this a pre-textual excuse to avoid actual video and audio evidence of an event in order that a Trooper or Deputy or Officer’s testimony and report are the bulk of evidence of an event. I argue that it is certainly the latter and I believe this because of personal experience – in court, providing live sworn testimony, an officer testified that he stopped a client of mine for failure to use a signal.  When asked if he was “sure,” or if he wanted to modify his testimony he declined.  So I played the video of the stop, a video that showed my client’s car actually using a signal. The officer makes contact and does NOT tell the person why he stopped her. While the officer confirmed the video was authentic, he continued to state, under oath that the car was stopped for failure to signal!  Why?  Simply because that is what he wrote in his report. I am sad to say that this officer no longer has a video and has risen to the level in his agency of that of Trainer of new cadets. It is for these reasons, I wish every officer had a video.

Ask nearly any criminal defense attorney defending traffic related crimes such as Driving Under the Influence, Reckless Driving, or Negligent Driving if they would prefer that the investigation and arrest of their client to be captured on video and the overwhelming answer is YES!

Video evidence removes the guesswork from an incident – was the person actually weaving in their lane?  Yes, here’s the video of such driving OR no, there is no evidence of the fact that the officer stopped for an actual violation and therefore, the driver was illegally and unlawfully seized -  a serious and flagrant violation of the State and Federal Constitutions.  The camera captures more than just the visual, as the technology employs a lapel microphone and bot officer and driver’s voices are clearly captured.  So with respect to the questions of “Did driver really stutter and slur all of her words?”  “Was there an admission during the roadside tests that “I can’t do these sober?”  Once again, here’s the audio or no, the officer seems to have difficulty with his hearing.  The list of information goes on, and I am sure you get the picture.  More importantly is the recorded administration and performance of roadside sobriety tests.  A violation of National Standards that each officer swears s/he is trained under renders the tests invalid, but officer’s rarely say they do not do them correctly, when in fact, their recitation of the standards is rarely correct.  Once again, the utility of the video cannot be overstated.

From a citizen’s perspective it is difficult to believe that budgetary constraints are really the problem.  The police routinely photograph accident scenes, and unfortunately, I often see law enforcement officers talking on cellular phones while driving in disobedience of the law they swear to enforce.  As we all know there are very few cell phones without video/audio recording capabilities.  This technology is simply not very expensive any longer.  Add to this that all police officers I have interacted with have in-car computers allowing them to remotely access a person’s criminal and driving histories – this technology is certainly more complex than a video camera.

The strength or weakness of cases would no longer hinge on the accuracy of Washington State Patrol Trooper or County Sheriff testimony of an event that often occurs more than year before the case can proceed to trial.  A lawful stop would be evident – no motions hearings with law enforcement officers, prosecutors, clerks, bailiffs and judges getting paid and/or overtime.  A lawful arrest?  See video.  Expensive trials?  See the video.  And so on.

Is Officer Grumpy The Canary In The Coal Mine?

Aside from the practical disappointment of the video, there are more fundamental philosophical problems evidenced here.  Without boring the reader or disappointing my college professors, I will talk about this failure in the context of social contract theory.

The social contract is one of the fundamental ideas our great democracy was founded, and has succeeded, upon.  The origins of the social contract can be found in Plato’s Republic and are described by the character Glaucon.  Basically, the idea is that the people of a society must group together and create a government in order to keep the desire and interests of the individual in check.  This idea was forwarded in western political thought by Thomas Hobbes in Leviathan and later by John Locke and Jean-Jacques Rousseau in their respective writings.  Suffice it to say the philosophies of Locke and Rousseau were monumental in the creation of western republics, namely in the French and American revolutions.

Boiled down, the social contract provides the government may wield power, necessarily the monopoly of force, against its citizens in order to sustain and enforce order amongst the people.  The people submit to this power, and give up some freedoms and agree to behave in certain ways (or face punishment).  In our society we permit the police to patrol our streets, stop our vehicles when we fail to follow the rules, and to arrest us when we step out of line. We also submit to government presence in our lives in the name of safety and order, e.g. the T.S.A.   Our government is also allowed to incarcerate us, or remove us from society, if it is proven that we broke the rules.  However, and as we all know, these powers come with very strict rules the government must follow.

The Bill of Rights, or the first ten amendments to the United States Constitution, is a very clear example of the rules the government must follow as part of their obligation in the social contract.  As a criminal defense attorney, the fourth amendment of the US Constitution is of the utmost importance:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

As every officer knows, a warrant is required in order to search a person’s effects – in the case of the video, a warrant is required to search the person’s car.  Of course there are exceptions to the Warrant Requirement that have been created through the court system; however, it is clear that no exception applied here.   Most recently, the United States Supreme Court reinforced the warrant requirement in a case where one was authorized but the police responsible for executing it failed to do so despite it being spelled out in black and white letters on the page.

In this video here, what we saw was a citizen who needed to exercise his rights because the officer did not respect his right to be secure from intrusion.  Would this have happened without the officer knowing his dashboard camera was rolling?  Would the officer have created his own exception and ordered the driver from the vehicle in order to search through the driver’s belongings?   How many times does this scenario play out every day on our roads?  Every month?  Every year?

It is clear that your individual rights can be difficult to protect.  If you need an advocate and a voice for your individual rights I am here to help.  Standing up to a police officer who fails to abide by the social contract and to respect your rights can be a difficult task.  It can often be met with force, rudeness, or worse, an arrest with very little and/or questionable proof.  A DUI prosecution has serious punishment and consequences and in almost every case it comes down to the “word” of the officer.  While many officer’s are honest and forthright, if even one officer bends the rules and an innocent person is sent to jail, lost their driver’s license and livelihood and a video could have prevented it, then that is one instance to many.  However, the crime DUI is “unpopular” and thus, the need to expose the prosecutorial problems of this crime are a low priority.

We certainly do not want Big Brother to watch all of us all of the time, but perhaps Big Brother could at least mount a video/audio camera in all the police vehicles so that this scenario can be remedied each and every time it occurs.