14sfcheck_CA1-articleInline(Friday’s Populist Capitalist Blog Post)

Society should not pick on the weak or the less fortunate and most certainly we should not allow them to be preyed upon. Yet too often if we do not keep a watchful eye, well-intentioned efforts yield unintended consequences. Or as benefits begin to accrue to a special few, human self-interest comes into play to distort and redirect an originally well-designed effort.

A prime example is “sobriety checkpoints” in California. The quotation marks are because for every DUI arrest, 20 cars are impounded for failure to have a driver’s license. Yep, no driver’s license, no car. Armed police put you on the street, leave you to find your way home. Hope that is not your wife, your daughter, your son’s girlfriend suddenly on the street. Hope there are no children in the car, hope there is a cell phone to call for help, hope there is someone to call, hope someone answers, hope that person has a car and a license. (The New York Times, “Sobriety Checkpoints Catch Unlicensed Drivers,” February 14, 2010)

Think that we do not live in a police state? Think that your possessions are yours and cannot be seized? Dream on! Those are your rights in THEORY. Your REAL rights, your rights in any practical sense of the word, are a lot less. First, the actions of the police in stealing—excuse me—seizing cars are of doubtful legality. The general rule is that the “taking of personal property without a warrant is unconstitutional.” However, the police, in effect acting as instant, on-the-spot prosecutor, judge, and jury all in one, argue that “impoundments were penalties for a criminal offense, and that therefore car owners were not subject to Fourth Amendment protections.”

While there is an economic benefit for strapped cities, it comes at a cost to taxpayers. In the last fiscal year, $30 million was authorized to pay overtime for officers working on the drunken-driving crackdowns. That money came from federal taxpayers through the California Office of Traffic Safety, which contracts with the University of California, Berkeley, to help distribute the money. Some of the police and civic enthusiasm may be driven by the discrepancy between who gets the $40 million benefit (cities and towing companies in California) and who pays the $30 million in overtime (federal government). The practice is exceedingly lucrative for both the towing companies and the police departments who keep most of the proceeds from the impoundments, creating an astounding conflict of interest.

Why no outcry? Why no massive federal lawsuits? Because the impoundments deliberately target the poor and weak: Hispanics make up 25% of San Rafael BUT 10 of the city’s 12 sobriety checkpoints took place around the city’s Hispanic neighborhoods, leading to a whopping 4 DUI arrests but 121 cars impounded for driver’s license violations. In many cases the drivers were immigrants without papers who lack the resources to get their cars back and to whom their cars are their greatest financial asset, their life’s blood, the way they keep their jobs. The human toll is huge: “You’re standing there like some armed guard inventorying her belongings as she takes them out; I have to stand here for days and watch them take their whole life out of their vehicles.”

While it is true that the many of those who lose their cars are immigrants without papers, that is no justification for skirting the rule of law, ignoring basic justice, fundamental concepts of humanity, or acting without mercy. Simply applying a label to a person is the oldest technique of despots and demagogues throughout history to try to get us not to see the human being to whom the label is attached.

It is said that the true measure of a society is how it treats the helpless. To fail to help is one thing, to trip them up and kick them while they are down is quite another.

Closing Quotes

“Power tends to corrupt, and absolute power corrupts absolutely.” — Lord Acton, in a letter to Bishop Mandell Creighton in 1887

“Quis custodiet ipsos custodes?” (“Who will guard the guards themselves?”) — Satires of Juvenal, 1st-2nd century Roman satirist and poet; the same problem was cited by Plato in “The Republic.”

“The accomplice to the crime of corruption is frequently our own indifference,” — Bess Myerson (Born in the Bronx, New York, in 1924, Myerson became in 1945 the first Jewish woman to win the Miss America pageant. In the 1970s and 1980s, she was involved in New York City politics. While competing in beauty pageants, Myerson refused, despite entreaties, to employ a pseudonym that “sounded less Jewish.” She faced prejudice even after winning the Miss America title, with many sponsors and events long associated with the pageant refusing to deal with her. She later campaigned for civil rights, in particular, working with the Anti-Defamation League. Source: Wikipedia)


Sobriety Checkpoints Catch Unlicensed Drivers
The New York Times

Bernardino’s wife began to sob as soon as she saw the signs warning “sobriety checkpoint ahead.”

“They cannot do anything to us,” said Bernardino, an illegal immigrant from Guatemala, as he pulled their 1997 Ford Explorer into a police checkpoint in San Pablo.

His wife knew better. They were sober, but Bernardino, who would not allow his last name to be used because of his illegal status, had no driver’s license, an offense that would cost them their car.

Sobriety checkpoints, like the one in San Pablo, have increasingly become profitable operations that are far more likely to seize cars from unlicensed — and often illegal immigrant — motorists, than to catch drunken drivers.

An examination by the Investigative Reporting Program at the University of California, Berkeley, has found that in 2009, impoundments at checkpoints generated an estimated $40 million in towing fees and police fines statewide. Cities like Oakland, San Jose, San Rafael, Hayward and Redwood City divide the revenue with towing companies.

While there is an economic benefit for strapped cities, it comes at a cost to taxpayers. In the last fiscal year, $30 million was authorized to pay overtime for officers working on the drunken-driving crackdowns. That money came from federal taxpayers through the California Office of Traffic Safety, which contracts with the University of California, Berkeley, to help distribute the money.

While the checkpoints do catch some drunken drivers, the police manning them are also leaving sober but unlicensed drivers, like Bernardino, on the side of the road, with no hope of regaining their vehicle for at least a month. Once vehicles are impounded, California law requires towing companies to hold them for 30 days. That can mean storage fees and fines that run from $1,000 to $4,000, municipal finance records show. Unlicensed motorists rarely challenge the impoundments.

Often the owners lack the money to recover their cars. Tow companies do not require vehicle owners to have a driver’s license, but they must bring a legal driver with them to the tow lot.

Perry Shusta, vice president of the California Tow Truck Association and owner of Arrowhead Towing in Antioch, said two-thirds or more of the impounded vehicles were never reclaimed and were sold at lien sales.

The proceeds go primarily to the towing companies.

The Investigative Reporting Program reviewed hundreds of pages of city financial records and police reports, and analyzed data from sobriety checkpoints during the past two years. The data revealed that police departments across the state are seizing a growing number of vehicles from unlicensed drivers. In the last fiscal year, the police seized approximately 24,000 such cars at sobriety checkpoints, up from 17,900 in 2008 and 15,700 in 2007.

Law enforcement officials say demographics play no role in determining where the police establish checkpoints. But records show that cities where Hispanics make up a majority of the population are seizing cars at three times the rate of cities with small minority populations. Sobriety checkpoints typically take place on major thoroughfares near highways. On average, officers seize seven cars for each drunken-driving arrest, state data show. The disparity is far greater in some cities. San Rafael averaged almost 15 impoundments for each drunken-driving arrest in the last fiscal year, and the police in Oakland seized 11 cars for every drunken driver who was caught. And in Montebello, state records show, checkpoints netted up to 60 impoundments for every drunken driver apprehended.

Police officials said they asked for driver’s licenses at sobriety checkpoints because doing so helped remove another kind of unsafe motorist from the road — unlicensed drivers — and because the California Office of Traffic Safety, which provides the grants for the checkpoints, advises departments to do so. Research by the National Highway Traffic Safety Administration shows that motorists driving with a suspended or revoked license cause collisions at a higher rate than licensed drivers.

“I think that a significant number of the hit-and-run drivers, when we do apprehend them, often have no driver’s license,” said Chief Ron Ace of the Hayward Police Department. “Which adds to one of the reasons why they don’t stick around.

”The seizures appear to defy a 2005 federal appellate court ruling that the police cannot impound a car solely because the driver is unlicensed.

Christine Gasparac, a spokeswoman for the office of Attorney General Jerry Brown, wrote in an e-mail message that the “law is unclear regarding the circumstances under which a vehicle operated by a driver who is determined at a checkpoint to be unlicensed may be constitutionally impounded at the scene.”

A challenge to the constitutionality of California’s 30-day impound law will be argued later this year before the United States Court of Appeals for the Ninth Circuit, and Ms. Gasparac said the ruling might clear the matter.

The San Francisco Police Department is not waiting for a ruling; it recently altered its impoundment policy to allow unlicensed motorists 20 minutes to find a legal driver to move their car from the scene. The policy of the California Highway Patrol is to refrain from impounding vehicles at its checkpoints simply because the driver has no license.

Data from state records show that Bernardino was one of 91 unlicensed drivers to lose his car in San Pablo in 2009. The ratio of impoundments to driving under the influence arrests was high around the Bay Area in 2009: In Daly City, there were 39.5 impoundments for every D.U.I. arrest; in San Rafael, 18.6; and in San Pablo, 9.

Drunken-driving checkpoints have saved countless lives on the nation’s roadways. But in California, motorists arrested for drunken driving can usually retrieve their vehicles the next day.

Impoundments, on the other hand, can create a significant economic hardship for those who depend on a vehicle to get to work. And the consequences can be more than economic.

Bernardino, for example, worked seven days a week to raise $1,900 to pay the city fines and tow fees so he could recover his sports utility vehicle. After 30 days, he gave the money to his brother-in-law — a licensed driver and the vehicle’s registered owner.

But an acquaintance robbed Bernardino’s in-law of the money and shot him to death the day he was to retrieve the Explorer.

For three months, as his family mourned and struggled to send money to relatives back home, Bernardino said he worked long hours so he could buy another car, allowing him to travel to higher-paying jobs in other Bay Area cities.

“If I lose the car, I cannot do anything, so I need to have it,” Bernardino said in Spanish. “I have to drive because I have no alternative.”

While state law prevents an illegal immigrant like Bernardino from getting a driver’s license, it does not prevent him from buying a vehicle.

Location, Location
A checkpoint typically lasts six hours. As the cars roll through and licenses are checked, officers rarely inquire about the drivers’ residency status. Nor do they contact United States Immigration and Customs Enforcement when they suspect unlicensed motorists are in the country illegally.

In mid-December, the Hayward police stopped Hugo Hernandez, a 26-year-old illegal immigrant and unlicensed driver, at a checkpoint and impounded his 2002 Nissan Altima.

Mr. Hernandez went to the police headquarters the next day to pay his fine and retrieve the car. But a Hayward Police Department clerk told him the car would be kept for 30 days, he said.

Local governments require car owners to pay impoundment release fees, on average $155, cities’ records show. And cities increasingly charge tow companies franchise fees, which gives the governments a cut of the dollars raised through impoundments.

The checkpoint where Mr. Hernandez was stopped was outside El Potro, a Latin music nightclub run by Francisco Ruiz. Mr. Ruiz said that for a dozen years, he had not seen any sobriety checkpoints. Then, the police department confirmed, it conducted four operations there in 2009.The state does not consistently collect data on where departments set up sobriety checkpoints. A majority of more than a dozen California law enforcement agencies refused to release records showing which intersections they single out or what had happened at checkpoints. But the disparity between vehicle impoundments and arrests for drunken driving exists in nearly every region of California. South Gate and several other cities around Los Angeles average 20 cars impounded for every D.U.I. arrest.

Hispanics make up only a quarter of the residents of San Rafael, according to data from the federal Census Bureau. In the past two years, however, 10 of the city’s 12 sobriety checkpoints took place on streets surrounding the city’s Hispanic neighborhoods, the Canal District. Those operations resulted in four arrests for drunken driving and 121 cars impounded for driver’s license violations.

Lt. Glenn McElderry, head of the San Rafael Police Department traffic unit, said, “We do not put checkpoints right there in the Canal District.”

While the police have not staged operations inside that district, department records show that checkpoints halted traffic on two primary feeder streets.

Impoundments at checkpoints are incidental, not intentional, law enforcement officials say. And the operations, they say, do not single out Hispanic areas. Nonetheless, it is often Hispanic drivers — sometimes whole families — who are left by the side of the road at a checkpoint without their car and all that was in it.

Some tow-company workers have seen Hispanic mothers arrive at impoundment lots to remove car seats and toys.

“You’re standing there like some armed guard inventorying her belongings as she takes them out,” said Mattea Ezgar, an office manager at Terra Linda Towing in San Rafael. “I have to stand here for days and watch them take their whole life out of their vehicles.”

Checkpoints’ Origins
Fifteen years ago, California lawmakers who broadened the impoundment authority of local police had no expectation of the kind of checkpoints now common in the state, said David Roberti, former president pro-tem of the State Senate.

“It’s turned out to be a far more vigorous enforcement than any of us would have dreamed of at the time,” Mr. Roberti said.

In 1994, Quentin L. Kopp, then a state senator representing San Francisco, sponsored the 30-day impoundment legislation to toughen penalties for a variety of traffic violations. Driving without a license was just one of them. The measure became law in 1995.In an interview last month, Mr. Kopp, now a judge in South San Francisco, said he had not intended to single out unlicensed drivers, and certainly not illegal immigrants.

“The impounding bill I don’t remember as being that controversial,” he said.

What he did not anticipate was the way his law would work in concert with a voter initiative, Proposition 187, which voters approved in 1995 and which took away illegal immigrants’ driver’s licenses and their chance to obtain one legally. The impoundment law then helped strip them of their cars.

But even with the new legal authority to set up frequent checkpoints, it was not until 2006 that their extensive use became evident.

Search and Seizure
“It is assumed under the law that the taking of personal property without a warrant is unconstitutional,” said Martin J. Mayer, a founding partner in the Fullerton law firm Jones & Mayer, who represents numerous law-enforcement associations.

Mr. Mayer was referring to the Fourth Amendment to the United States Constitution, which restricts law enforcement’s authority to seize private property without a court order. That, he said, protects everyone, whether they are in the country legally or not. He communicated his opinion in a memorandum to his clients, California’s police chief and sheriffs, in 2005 after a ruling by the Ninth Circuit in an Oregon case.

In that decision the court held that law enforcement could not impound a vehicle if the only offense was unlicensed driving. The only exception permitted the police to impound a car was if it posed a threat to public safety, was parked illegally or would soon be vandalized if left in place.

The ruling sharply altered the legal status of vehicle impoundments. In response, in 2007 the legislative counsel of California called on the state’s police departments to cease what had become a standard practice.

“If a peace officer lawfully stops a motor vehicle on the highway and the driver of the motor vehicle is an unlicensed driver, that alone is not sufficient justification for the peace officer to cause the impoundment of the motor vehicle,” the counsel, who advises lawmakers, said in a report. But the counsel has no authority over police departments.

In 2008, in a separate case in Federal District Court case, a judge arrived at a different conclusion, agreeing with the State of California and several cities, who were defendants and argued that the impoundments were penalties for a criminal offense, and that therefore car owners were not subject to Fourth Amendment protections. The plaintiffs’ appeal is pending.

Most California law enforcement agencies continue to seize vehicles based on driver’s license violations alone.

State officials have declared that 2010 is the “year of the checkpoint,” and plan 2,500 of the operations statewide.

Ryan Gabrielson is a fellow with the Investigative Reporting Program at the University of California, Berkeley.