Tuesday Talk*: To Enforce Anyway?

There is law. There is duty. And then there is the question of discretion, who gets to decide whether it’s to be executed or not. This is an issue that’s reared its head on numerous levels over the past few years, most notably when progressive prosecutors ran for and won office upon the campaign promise that they would categorically refuse to prosecute laws with which they disagreed.

There’s no doubt that a prosecutor has the individualized discretion to decide not to pursue a particular case. Maybe the evidence isn’t there. Maybe the facts and circumstances are such that she feels it would be an improper or counterproductive exercise of authority. Regardless, it’s within their authority to decide to toss a case. But individualized discretion is very different than categorical exceptions.

If the legislative body enacts a law criminalizing conduct, and it’s the responsibility of a prosecutor to prosecute violations of that law, do they get to shrug and say, “nah, I don’t wanna”? But the lege said so, and is it not the prosecutor’s duty to follow the law as dictated by the governmental body with the authority to enact laws?

In Pittsburgh, this scenario got turned on its head.

Pittsburgh Police officers have been instructed to resume enforcing minor traffic violations — like an expired registration sticker or a poorly secured license plate — despite a 2021 ordinance to prevent them from doing so in the absence of a larger infraction.

A spokesperson for the department said the memo came as a result of “recent changes in state law.” But some legal experts question whether there’s sufficient reason to compel a reversal of the policy.

The city ordinance prohibits Pittsburgh police officers from pulling over a motorist if the primary reason is one of eight minor traffic violations. (Officers could pull over a motorist for another reason and still issue a ticket for a secondary infraction.) Advocates argued that racial bias can lead to disproportionate enforcement against Black and Latino residents. The ordinance was an attempt to mitigate those disparities modeled on similar legislation in Philadelphia.

After the Supreme Court blessed pretext stops in Whren, and as people became more attuned to the crime of “driving while black” as a mechanism to conduct a warrant check or drug search, the question arose how to prevent police from using the vast and largely unchecked authority to pull over cars for trivial (if not fabricated) violations for improper purposes.

According to Pittsburgh Police data, Black residents make up only about 22% of the city’s population, but accounted for 42% of traffic stops in 2021.

If a cop wants to pull a car over with a traffic violation, all he needs do is follow for a bit and he’ll find one, or be able to make one up. On behalf of the disproportionate stopping of black and Hispanic drivers, Pittsburgh decided to assert its civilian control over its police department and say “enough.”

Acting Police Chief Thomas Stangrecki said “enough” too, just the other way.

A public information officer for the Pittsburgh Bureau of Police told WESA that the procedure dictated by the ordinance “was pulled down by Acting Chief [Thomas] Stangrecki to be reviewed in light of recent changes in state law.”

The bureau’s statement did not provide a full account of those changes, though it cited as an example, “the relatively recent amendment to the section of the PA vehicle code regarding license plate obstruction.” Given the change, “rescinding the memo made sense at this time in order to provide clarity for officers in the field.”

The change in state license plate obstruction law to conform with state caselaw, that it meant obstruction of the plate numbers, not the vacation url at the bottom of the plate, smells like a complete excuse to ignore the local ordinance because the local cops didn’t like being told what laws they couldn’t enforce.

Stangrecki told WESA another reason for the reversal was to boost morale among the city’s police ranks. He said he’s received steady feedback that the ordinance is “preventing them from doing their jobs.”

“The officers who are employed here come here for a reason, and that’s to enforce the law,” Stangrecki said. “I thought it was imperative that I send out some strong messaging to the officers that are still here on this police force that you can do your job, you can enforce the law.”

And, indeed, the legislative change regarding the license plate law is the law. So, too, however, is the local ordinance prohibiting the cops from enforcing the law through stops. Chief Stangrecki is choosing to enforce one law and ignore another, one expressly directed at him and his force. Seems very wrong, very un-law-abiding, for the Pittsburgh police to refuse to comply with their own city ordinance, and they have been roundly taken to task for rejecting civilian control of their conduct.

But then, is this any different than a local district attorney refusing to prosecute categories of law that he or she doesn’t like? Each of these roles were part of a system of law enforcement, as the opening to Law & Order reminded us, but when the office holders or department heads are in conflict, who gets to decide which laws are followed?

*Tuesday Talk rules apply.

18 thoughts on “Tuesday Talk*: To Enforce Anyway?

  1. PML

    “According to Pittsburgh Police data, Black residents make up only about 22% of the city’s population, but accounted for 42% of traffic stops in 2021.”

    One could argue that other drivers just pay better attention to the laws and make sure that their cars are up to snuff at all time. Also how many of those citations are for road side reductions that officers frequently issue in order to get credit for a ticket but not hurt the drivers license with points.

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  2. Jeff Davidson

    The headline on our little weekly newspaper in rural NW Illinois was that the sheriff will not be enforcing recently passed gun laws, having decided that they are clearly unconstitutional. It’s become endemic to law enforcement. This isn’t a surprise, but it’s sad nevertheless.

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    1. Lee

      But should a public authority enforce a law that he or she believes is unconstitutional? “I was just following orders” didn’t work that well as a defense at the Nuremberg Trials.

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    2. Hal

      Not a lawyer, but it seems to me that there’s a big difference between refusing to enforce a law that one believes to be unconstitutional and issuing traffic citations.

      There was a comment attributed to an Illinois sheriff, in something that I read y’day, “It’s incredibly dangerous for me to cherry-pick and enforce only laws I agree with, or only laws I feel are important”, which had me thinking about this. OT1H, I see his point and agree w/ it. OTOH, any law “repugnant to the Constitution” is supposed to be “void”, if I understand the decision in Marbury v. Madison. Does “void” in this sense mean the same as “stillborn”?

      IIUC, a sheriff swears to uphold the Constitution, so if one genuinely believes that a measure is unconstitutional they’re in a difficult position. To my way of thinking that’s very different from choosing whether or not to enforce a law based solely on personal choice/ preference. IMO, adherence to the Constitution should trump state law. As noted, “Vee vur chust follovink orduhs” has been discredited as a defense.

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      1. PML

        Just because this Sheriff expresses an opion that the law is unconstitutional does not make it so. Thats the slippery slope here. His job is to enforce the law until such time as someone in authority says the law is unconstitutional.

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        1. Hal

          OK, to start w/ the sheriff I quoted was not saying the law was unconstitutional. Rather, he was expressing an opinion more in line w/ the one you posted.

          If you had read carefully, and actually stopped to consider, what I wrote you’d realize that I was suggesting that in Marbury v. Madison, SCOTUS (clearly “someone in authority”) had already ruled that a law “repugnant to the Constitution” is “void”. An “assault weapon ban” clearly infringes upon the 2nd Amendment and the SCOTUS decision in Miller (as they’re clearly and “suitable for military purpose” and “In common use”).

          Any sheriff who has even a semblance of conscience or a sense of honor should be carefully weighing this question.

          I know this is going to be seen as offensive, and I regret that, but you’re mouthing platitudes and demonstrating your ignorance. “Thinking is hard”, as our host is wont to observe, but this is matter of great importance and deserves thoughtful and carefully considered analysis, fact based and grounded in history.

          (Scott, I’m self aware enough to appreciate that the irritation that I’m feeling over this is likely akin to that which you’ve expressed to me and others for talking out our asses on a subject you went to great effort to master. I appreciate the irony and I’ll try to bear this in mind in the future.)

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  3. Keith

    A categorical duty to enforce (or not) is going to be based on the requirements. If the police feel the law is preempted, why not just say so and go through the process for such things?

    I looked at the underlying statute and I can’t speak to how PA handles such things, but this would be suspect if one of my council members tried to do this:

    While the “whereas” clauses likely do not have effect of law, they are a bit telling. Namely:

    Whereas, § 23161 of the Second Class Cities Law, Act of April 29, 1911, P.L. 105, § 1, as amended, 53 P.S. § 23161, states, in pertinent part: “every city of the second class, … is authorized and empowered to enact ordinances regulating, in the interests of public safety, … convenience, the movement of … vehicular traffic, of every kind, in streets, parks, bridges, squares, and public places in such cities.”; and,

    Whereas, § 23163 of the Second Class Cities Law, Act of April 29, 1911, P.L. 105, § 3, as amended, 53 P.S. § 23163, states, in pertinent part: “The regulation of traffic in such cities of the second class, as provided for in this act, shall be vested in the Department of Public Safety of such cities…”; and,

    The Department of a Public Safety is not the local council making this ordinance.

    I tried several reforms like this when i was on my town council only to find that police claimed they had a State mandate and are not subject to such local controls.

    Add to that:
    “recent changes in state law.”

    Which changes? They don’t seem defined in the article, but if it’s anything like NJ, it’s entirely possible that changes in state law nuked the local ordinances via preemption, too.

    And yet… the clear desire of the governing body to reduce unnecessary traffic stops could still be acknowledged and be honored by the local PD, should they want to reduce unnecessary traffic stops that they always claim are so dangerous to their ability to get home for dinner.

    That they would rather continue them is telling.

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  4. B. McLeod

    Officially, most states have the rule that their municipal subdivisions can’t opt out of state-level offenses. Even so, every place I have ever lived, there were unofficial exceptions, all well before the days of wokey prosecutors. In one town, the court wouldn’t enforce state fish & game violations, or any “failure to signal” written for a “T” intersection. In our largest urban center, the cops won’t charge a “urinate in public” unless somebody does it right in front of them. If a city tried to mandate these non-enforcement practices by ordinance, the ordinance would be struck down, but when courts or law enforcement just don’t enforce, by fiat, it gets past. If, by Barney Fifery, some zealous new officer (or chief) started trying to enforce measures locally that are typically unenforced, my guess is some of the judges would go along but some would find a way to toss the cases.

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  5. PK

    Rather than quibble with the underlying facts, as seems popular, I’ll try to meet the substance of your closing questions.

    It would seem we’re suffering from a case of lawlessness. If either prosecutors fail to prosecute or enforcers fail to enforce, the entire system collapses because a house divided against itself cannot stand, or something like that. The legislature decides, the executive executes. It might be a hard pill to swallow, that the legislature might have to try to fix something, but the rule of law requires it, as does our entire system of government, but I don’t want to catastrophize too, too much.

    So, because there’s always a “so”, the police should comply with the ordinance and prosecutors should not categorically refuse to prosecute certain cases. They are both wrong. Neither of them decide. The current situation is unsustainable, though admittedly I have a habit of saying the sky is falling when such is not the case. Still, the bureaucratic squabbling between the “separate but equally important” groups has to stop.

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      1. PK

        “Do the crime, pay the time.” God will recognize his own. What I mean is that a righteous cause does not excuse a violation of the law in the moment. Whether the violation is “worth it”, I can’t say. Time and history will tell that. The judiciary can mollify the harshness to a degree, but strict adherence is necessary. The disobedient aren’t beating the ride, in other words, let alone the rap, but that’s kind of the point. It would be obedience if it were allowed.

        Hey HG, hope you’ve been well. TT lets me do this, so why not.

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  6. Sgt. Schultz

    I hereby invoke TT rules and post this:

    40 years ago today, in the 207th year of the Independence of the United States of America, I was admitted to practice law by Presiding Justice Francis J. Murphy Jr. of the Appellate Division of the New York Supreme Court, First Judicial Department.— Scott Greenfield (@ScottGreenfield) January 17, 2023

    Congratulations, old man.

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    1. The Infamous Oregon Lawhobbit

      Wow. An ’82 Bar Number (presuming NY does annual numbering like Oregon does). Forty is a LOT of lawyer-years!

      I will second those congratulations!

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  7. F. Lee Billy

    We wonder what Laurence “Of Arabia ” Tribe has to say about this disputation in a teakettle? As I and others before me have said numerous times, the Law is an A$$. Furthermore, my Dear Watson, laws were meant to be broken, and not enforced (selectively). Or did we get it backwards again?

    So sorry to be late to this very (uninteresting) thread. Another slow day, eh, as they say in Canuck.

    Reply

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