Police departments across the country are wrestling with increased scrutiny as more incidents of officer misconduct and brutality arise. San Diego isn’t immune to these concerns.
In fact, the San Diego Police Department has been introducing reforms under intense pressure from watchdog groups, activists and concerned city leaders. Police practices might be changing, but even without new reforms, it’s key to know what your rights are in interactions with officers.
When Police Pull You Over
For police to pull you over, they have to have “reasonable suspicion” that you’re breaking the law. That means they have to have a collection of facts that would make them suspect you’re violating the state Vehicle Code – this can’t just be an officer’s hunch.
But, as Liam Dillon explained, it’s not as cut-and-dried as it sounds:
“If you follow anyone around long enough,” said San Diego traffic attorney Elizabeth Aronson, “you’re going to find that person violating vehicle code.”
This reality gives police officers a lot of discretion for when and who they decide to pull over. The law doesn’t remain static, either. Appellate courts make new decisions all the time governing what kinds of traffic stops are legitimate and what aren’t, Aronson said.
And cops do pull people over without reasonable suspicion, which can sometimes lead to lengthy court battles, like the one we saw in City Heights in 2010.
When Police Ask, ‘Are You on Probation?’
Generally, police aren’t supposed to ask your probation or parole status. In April 2014, the department told officers to scale back this practice, along with forcing people to sit on the curb while they question them.
Now, officers must have a specific reason to tell people to sit on the curb, and should only ask about someone’s probation status if they know that person’s criminal history or need to know immediately.
These moves were intended to respond to complaints from the community – Megan Burks talked with folks back in January 2014 who said the probation question had become more of a signal that a routine stop was etched with racial undertones:
Residents in predominantly minority neighborhoods say the question is often the first one they’re asked, and is too broadly applied. It was the focus of several emotional testimonies residents made at Wednesday’s committee hearing on racial profiling.
“We don’t have a stop-and-frisk problem. We have an, ‘Are you on probation or parole?’ problem,” Lei-Chala Wilson, president of the local NAACP, said at the meeting.
When cops ask this question, they’re trying to find out if you’ve waived your right to refuse to be searched. That’s called a “fourth waiver” and it’s a condition of parole or probation. But if the question is used too broadly, as civil rights groups said happened in southeastern San Diego, it can breed resentment toward the police.
When Police Enter Your Home
Late one night last July, two brothers were just coming back to their mother’s store in City Heights after stepping out for a cigarette. That apparently looked suspicious to two SDPD officers, who, along with four of their peers, barrelled into the family-owned store, repeatedly punching one of the brothers before arresting him and shoving the mother’s head under a table.
This, keep in mind, took place with no actual crime to warrant the response, and in a family’s store that was attached to their home. The video of the exchange is hard to watch. But what are the rules for when police can cross your threshold?
Police need a warrant to go into your home or business after hours, unless they can point to an “exigent circumstances” as a reason to barge in.
These typically fall into three scenarios: hot pursuit (if the police are chasing somebody who’s fleeing the scene of a crime); if the police have reason to believe someone’s in danger inside the home or in a business; or if they have reason to think someone’s destroying evidence inside.
When Officers Approach You on the Street
If officers approach you on the street, your best bet is to behave yourself, but any nasty language on your part doesn’t justify police arresting you. You do have a First Amendment right to tell the police to “fuck off,” Alex Kreit, an associate professor and director of the Center for Law & Social Justice at Thomas Jefferson School of Law, told me back in February. That doesn’t mean running your mouth is a smart move:
“There’s a huge caveat to that, which is, if what you’re doing is in some ways, could be considered disorderly conduct or you are impeding the officers’ investigation in general, it’s not necessarily going to take that much before what would be protected free speech suddenly becomes a crime.”
When You Can Film the Police
Kreit said it’s pretty hard for police to say filming them is considered disorderly conduct or impeding their investigation. The rules are still a little unclear on this, though. Here’s Kreit again:
“They could tell you to stop. If they start commanding you and ordering you to stop, then I think you’d probably have a pretty good argument that they’re now violating your First Amendment rights.
“As a practical matter, you may very well be running a little bit of a risk that the wrong officer who doesn’t really necessarily know what they’re doing or understand what your rights are – I mean, ultimately they’ve got the immediate power. The fact that maybe that’s unconstitutional is not going to necessarily help you in the short-term.”
When You’re Caught on Police Body Cameras
This one’s a bit hazy, likely because we’re in uncharted waters with SDPD’s still-new use of officer body cameras.
The department’s got a policy, which might have some new changes soon, but it mostly dictates how officers use the devices – everything from charging to file storage. It says very little about whether members of the public will be able to see footage.
Even though it’s your mug on tape if you find yourself being filmed during an interaction with officers, you probably won’t be able to access that video. Margaret Dooley-Sammuli of the ACLU of California told me your clearest route would be in cases of a criminal investigation or civil lawsuit.
There’s no guarantee that if you complained about an interaction with an officer that was caught on film, i.e., you raised concerns about inappropriate behavior, you’d be able to review the footage. And if you’re the victim of a crime caught on an officer’s body camera, you might have even less say in the matter. Here’s what Dooley-Sammuli told me:
“If you’re the victim – again, this is at the discretion of the department – you have no real representation in this process, which is part of a big problem with our criminal justice system,” Dooley-Sammuli said. “It’s not about you really, it’s about the state and the actor. But if you went in and asked to see it, then the department may be again have total discretion. They may want to not share it with anyone or let anyone view it outside the case, especially during the investigation, or during the prosecution. But I don’t think anything would bar them from allowing a victim to see what happened.”
When Police Assume You’re in a Gang
Thanks to a new state law that took effect last year, California’s law agencies are required to notify parents when their children have been entered into the statewide gang database, known as the CalGang system.
For younger generations, that could help avoid situations where people might not even know they’re in the database until they’re in court facing tougher sentences for crimes, Megan Burks reported. Plus, it gives involved parents a chance to intervene.
If you’re an adult in the gang database, however, you’re kinda screwed.