New York Upholds The Dumb Digit of Death

Typos happen. There’s no shame in making a mistake when typing in letters or numbers, but there’s no pride in it either. You screwed up. When the mistake is made by a cop, they screwed up too. Not that it matters to the New York Court of Appeals*, which decided unanimously that a miss is as good as a hit.

Nothing in the record before us suggests there was anything unreasonable about the police officer’s actions or that the officer had any illegal motives. He ran the license plate and accessed the DMV database in the performance of his official duties. Therefore, the check was lawful, and the information from the database provided him with a valid reason to stop defendant’s car.

Holy Heien, Batman. The cop had no reason to run the plates. He observed no violation. But he decided for no particular reason to punch the plate in anyway, and boom, he got a hit, a suspended registration for failure to pay parking tickets because the database said so. Lucky?

And while we are mindful of the concerns about license plate checks,

“the possibilities of database error and police officer abuse, while real, do not create a legitimate expectation of privacy where none existed before. Government actions do not become Fourth Amendment searches simply because they might be carried out improperly. If an officer does go outside the proper bounds of a license plate search, it is that misconduct that might give rise to a constitutional or statutory violation” (Diaz-Castaneda, 494 F3d at 1152).

This random decision to run the plates worked out, so its all cool. What could possibly go wrong? Hold my beer, the United States Supreme Court replies in Tolan v. Cotton.

At around 2:00 on the morning of December 31, 2008, John Edwards, a police officer, was on patrol in Bellaire, Texas, when he noticed a black Nissan sport utility vehicle turning quickly onto a residential street. The officer watched the vehicle park on the side of the street in front of a house. Two men exited: Tolan and his cousin, Anthony Cooper. Edwards attempted to enter the license plate number of the vehicle into a computer in his squad car. But he keyed an incorrect character; instead of entering plate number 696BGK, he entered 695BGK. That incorrect number matched a stolen vehicle of the same color and make. This match caused the squad car’s computer to send an automatic message to other police units, informing them that Edwards had found a stolen vehicle.

What are the chances that one digit off would not only be for a car of the same make and color, but stolen? Good enough, obviously. Tolan’s parents come out of the house, try to explain to the cops, who have guns drawn because reasons, that the car isn’t stolen, and get treated with the courtesy and professionalism one might expect.

Tolan’s mother and Cooper testified during Cotton’s criminal trial that Cotton grabbed her arm and slammed her against the garage door with such force that she fell to the ground. Tolan similarly testified that Cotton pushed his mother against the garage door. In addition, Tolan offered testimony from his mother and photographic evidence to demonstrate that Cotton used enough force to leave bruises on her arms and back that lasted for days. By contrast, Cotton testified in his deposition that when he was escorting the mother to the garage, she flipped her arm up and told him to get his hands off her.

And like any good son, especially one who wasn’t driving a stolen car and who had no reason to understand that a law-abiding man from a law-abiding family was deemed a “dead man walking” to an officer, Tolan took issue with the cop manhandling mom.

Both parties agree that Tolan then exclaimed, from roughly 15 to 20 feet away, 713 F. 3d, at 303, “[G]et your fucking hands off my mom.” The parties also agree that Cotton then drew his pistol and fired three shots at Tolan. Tolan and his mother testified that these shots came with no verbal warning. One of the bullets entered Tolan’s chest, collapsing his right lung and piercing his liver. While Tolan survived, he suffered a life-altering injury that disrupted his budding professional baseball career and causes him to experience pain on a daily basis.

The Supremes remanded, reversing the circuit’s holding that Cotton entitled was to qualified immunity because he did not violate a clearly established right, but that doesn’t make the bullet that went into Tolan’s chest magically go away. And all over a digit. Bear in mind, the Tolans weren’t primed to be compliant criminals, because they weren’t criminals at all. Just nice folks on the Good Guy Curve who came into a cop’s crosshairs because he made a typo.

Every enforcement action taken by a police officer, no matter how trivial or arbitrary, carries the potential of death.  That Tolan was merely maimed is kismet plus bad aim. While the risk may be deemed socially justifiable in the event of a reasonable suspicion, though probable cause would seem a far stronger basis, the New York Court of Appeals shrugged it off, empowering cops to engage in random number punching to break up that otherwise dull shift when nobody commits a crime.

The question isn’t whether drivers have a reasonable expectation of privacy in their license plate, but whether having a license plate, which the law requires, gives rise to pecking at random to a database that’s replete with errors and prone to typos, when they have no reason whatsoever to seek out a problem in the first place.

It’s not, as Chief Judge Janet DiFiore suggests, just some benign “not unreasonable” thing for a cop to do when he’s got nothing better to do to kill a few minutes. It’s the prelude to execution when things go awry. When there is no basis in the world to take the risk of killing someone by an arbitrary and capricious police check, then it’s not just a really bad idea. People have a constitutional right to be left alone. They have a right not to be the random targets of bored cops. Or they used to in New York.

H/T Keith Kaplan

*While this shouldn’t be necessary here, I note to avoid the confusion of the unwary that in New York, the Court of Appeals is its highest court.

9 thoughts on “New York Upholds The Dumb Digit of Death

  1. Mike G.

    So by registering your vehicle with the state and putting the license plate on it, a person is giving up their expectation of privacy while driving on state and city roads according to New York’s highest court? Got it.

    Well with the ALPR’s the police are now using, you won’t have to worry about missed digits. All you have to worry about is someone in government deciding they want to track your movements around the city, state or country. That’s according to the NYCLU, which has questions about their use and possible abuse.*

    * No link per the rules, but it’s the first hit on search for Automatic License Plate Readers.

    1. SHG Post author

      So how would you prefer I respond? By pointing out that your comment has little to do with the post? By noting that lawyers know what ALPRs are, and it’s not up to you to educate the unwashed at my blawg? Or by mentioning that while the NYCLU’s “questions” may be meaningful to non-lawyers, lawyers aren’t nearly as impressed? Maybe I should just thank you for not including a link that implicates all of the above, per rules?

  2. Jim Tyre

    Typos happen. There’s no shame in making a mistake when typing in letters or numbers,

    You wrote that just to tempt some of us, didn’t you? You know who.

  3. Ross

    The SCOTUS ruling in the Tolan case was surprising, given the history of deference to police, but the Trial Judge wasn’t thrilled about it. She said in response to a defendant motion for summary judgement:

    “I am very tempted to grant it, but I’m not going to right now. I think the Supreme Court sent it back to the circuit so that they could reanalyze my case. The 5th Circuit didn’t want to do that, so they punted it to me. And I don’t think. . .they would ever be satisfied if we didn’t take this case to trial”

    She also said “I thought I was right the first time”, referring to the order that SCOTUS overturned. Those statements led Tolan to settle for $110,000 and no admission of wrongdoing by the City of Bellaire or the cop, since, according to statements by his lawyers, he didn’t think he could get a better result at trial.

    One thing missing from the quote about the circumstances when Tolan was shot was that he was face down on the ground, and raised his head and part of his chest up to tell the cop to leave his mother alone, and was then shot, which makes this all the more egregious.

    1. SHG Post author

      Who doesn’t love a tangential backstory? It’s almost as if this wasn’t my blog at all.

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