First, thanks to the folks at Prawfsblawg for agreeing to have me. For those who don’t know me, I am a former public defender, currently teaching criminal law and procedure at the University of Alabama School of Law, and I write about criminal juries and juvenile justice issues – both of which will undoubtedly supply lots of fodder for my posts this month. Today, however, I want to turn to a matter on my mind a lot lately – police power and, wait for it, speeding.
I know with Baltimore smoldering and a host of other recent events, the conversation about police power could go elsewhere. And it will, though not right now, not in this post. I should start with a full disclosure in the past four months I have received two speeding tickets. This fact, in and of itself, might not seem that surprising. But in my twenty-plus years of driving, these are my first tickets. Sure, I have gotten pulled over before. I have even gotten the stern warnings to “slow it down little lady” (I am neither little nor, according to many, a lady). But before moving to Alabama I had never gotten a speeding ticket.
Setting aside my position that I was not going the speed alleged by the officer when I was stopped, the experience of getting stopped has been fascinating from a “due” process standpoint in that there was none. Quite simply I was given the option to accept the officer’s word that 1. I had broken the law and 2. the officer had accurately witnessed my disobedience even when his and her observations contradicted my own.
Without going into the fascinating details of the stops (particularly since I have decided to go to court on the most recent one), there is a single aspect of the stop that I think warrants attention here. When I asked the officer in each stop if I could see the radar readout – which each officer cited as the evidence of my speeding – I was told I could not because each officer had already cleared it. Apparently this is the policy in Alabama, to clear the radar screen as soon as the officer decides to stop the motorist (though admittedly I have not been able to confirm this with either the police department or the district attorney’s office both of whom hasn’t called me back). With the first ticket I received, I dutifully paid my fine, protesting my innocence as I entered my credit card information online. With the second stop, I asked the officer for the make and model number on her radar gun so I could try to get some information on the gun’s method and ability to record speed and she responded “do you really want to go there, ma’am?”
At this point, as I gazed upon this uniformed, Teflon-clad, hand-on-her-holstered-gun officer, I thought a number of things but first and fore most was “go where?” My daughter, who was in the car, thought I was going to jail and looked at me pleadingly to stop talking to the police officer (of course she was also late to softball practice so I may be reading too much into her look). My criminal-procedure-loving, liberty-loving self wanted to go to a place where the State has to offer the citizen some even small amount of proof before they can detain them. In the end, the officer and I glared at each other briefly and she handed me my ticket. As she began to walk away from the car, I asked her about a court date and she came back to the window. She stood there for a moment and shook her head (literally shook her head) and said “Ma’am, you can go to court on the date listed on the ticket, but what’s the point? I am going to go in and say you were speeding and you are going to say you were not and the judge will believe me.” She walked away before I could come up with a snappy retort. Five days later, I still haven’t come up with one so I guess it’s good she didn’t wait.
All of which brings me to my point. Is the speeding ticket that big a deal in my life? Honestly, probably not, unless of course I continue to get them at this rate in which case I will likely soon lose my license. But what is a big deal, for me, and all those like me who have these daily encounters with the police, was that I had no power in the moment of the encounter—and likely will continue to have no power even as I attempt to litigate my case through the Alabama Municipal Court system. In the end the system is stacked against the very citizens it is allegedly designed to protect. So a speeding ticket matters as much as any executive decision because it is about the power the State can, and does, daily exercise over all of us.
As I think about what my clients told me when I was a public defender, or other encounters I have had with the police, or even hear news reports about Baltimore, Ferguson, New York – I cannot help but marvel that this power dynamic has existed for so long, and continues. I cannot equate the helplessness and frustration I felt on the side of the road that day with what I have seen and heard of in the lives of others. But I can say that I felt like I glimpsed a world in which my sole function was to keep my head down and, when stopped by a police officer, to accept the ticket he/she handed me and shuffle along like the good, obedient citizen. Did the officer in my “case” cross some line? Not in an extreme way. She never pulled her gun. She did not pull me from the car and taze me. She didn’t even raise her voice when she spoke to me. But what she did try to do was to take away any sense I might have had that I could contest what she had concluded was right. If anything, she found my questions about her radar gun and a court date the boring and annoying inquiries of someone she had to educate by the nature of the very power she wielded. So I will see the officer from the second stop in court and I may lose. But in standing up maybe I will win after all. Or maybe I’ll just get slapped with court fees.
(Cue Public Enemy’s Fight the Power)
Posted by Jenny Carroll on May 6, 2015 at 08:07 AM
Comments
This is really good. If we ever intersect at a conference, I’ll have to tell you my story about trying to fight a ticket in New Orleans (spoiler: it’s impossible).
Posted by: Paul Gowder | May 10, 2015 11:33:33 PM
This whole story seems outlandish. You expect us to believe a female Barney Fife in Alabama can speak or understand coherent English?
Posted by: Cent Rieker | May 6, 2015 8:48:41 PM
So you were running late for softball practice, got pulled over (second time in 4 months, after talking your way out of previous tickets), but want us to believe that you were not speeding?
I’m sorry, but I happen to believe the oppressive, uniformed, Teflon-clad, hand-on-her-holster police officer over the law professor who teaches criminal procedure.
Your comment about “due process” is puzzling. Common sense dictates that speeding tickets not be afforded much process. Police and the justice system have better things to do….such as the real-world problems you attempt to associate your plight with.
In the immortal words of Queen Elsa: “Let It Go!”
Posted by: Adam Smith | May 6, 2015 5:54:01 PM
That’s probably wise. Her softball team sounds tough.
You wouldn’t also be the coach, would you?
Posted by: Gloober | May 6, 2015 4:12:03 PM
On the advice of counsel, my daughter is taking the nickel (that’s exercising her Fifth Amendment privilege against self-incrimination for readers who haven’t shared burritos with Nate Silver in a jail).
Posted by: Jenny Carroll | May 6, 2015 3:48:18 PM
I’ve heard bringing baked goods to a party is a great way to make friends. Also true in jail?
Did the coach make your daughter run laps for being late? If so, did she also think she was going faster (or slower) than the coach / authority figure said she was?
(You seem nice, by the way.)
Posted by: Gloober | May 6, 2015 3:42:41 PM
If I have to bring my own, it will likely not be a burrito, but a traditional jailhouse sheet cake — handy for concealing the tools of dissent. Martha Stewart lists several promising recipes. As for softball practice, I did get my daughter there. We were late. I figure it will build character and give her lots to discuss with her therapist later in life.
Posted by: Jenny Carroll | May 6, 2015 3:25:56 PM
Nate had to bring his own burrito.
Will you?
And more important: Did you make it to softball practice?!??!?!
Posted by: Gloober | May 6, 2015 3:19:08 PM
Gloober, I don’t disagree with you that my experience is not as significant in terms of harm as Ferguson, New York, Baltimore, the list goes on and on, and I don’t mean to equate my frustrations with those cases, as I noted in the post. But I do think that the underlying question about executive discretion and police power is cut from the same cloth. As for Nate Silver, I am fairly flexible about the company I keep when eating burritos in jail cells. I’ll let you know if we end up incarcerated together and what cuisine is served.
Posted by: Jenny Carroll | May 6, 2015 3:15:43 PM
Criminy, Howie. Overreact much?
Take a breath. Have some water. You need to be hydrated to do all that hall monitoring you must be doing.
Posted by: Gloober | May 6, 2015 2:53:01 PM
This is a really good post with a keen eye for the bigger picture buried in common experience. Thanks!
Posted by: Bernie Burk | May 6, 2015 2:50:12 PM
Or maybe next time Gloober can read the entire post and find the sentences where the author expressly disclaims doing any such thing and establishes a much smaller point. Nah, too much work.
Posted by: Howard Wasserman | May 6, 2015 2:29:40 PM
Maybe next time they’ll toss you in a cell with Nate Silver, and you two can eat burritos together, sharing obtuse stories about how you now understand Ferguson.
Posted by: Gloober | May 6, 2015 11:28:17 AM
If you haven’t already seen it, I recommend the following piece (with similar due process themes) in the New Yorker: http://www.newyorker.com/magazine/2014/10/06/before-the-law.
As a former prosecutor and now law professor, I think this should be mandatory reading for every new ADA and APD.
Posted by: AnonProf13 | May 6, 2015 10:16:55 AM
I have gotten pulled over twice in Alabama, for no reason. Both times the cop let me go, and while I didn’t get a ticket, I hated the sense of helplessness and the fear that the situation could go south at any minute. In Georgia, I got pulled over and the cop told me I was doing 75 in a 55, even though my cruise control was set to 55. This officer refused to let me see the radar detector, stating that they are not required to do that in Georgia. I paid the ticket, knowing that I would lose in any court in rural Georgia. My experience with law enforcement in the south has not being a positive one, which says a lot given that I am from Chicago. It’s the humiliation and lack of due process that I hate the most, given that I teach my students to respect the legal system, but the police have a lot of power and a lot of discretion that makes solving this problem particularly difficult.
Posted by: Fre | May 6, 2015 9:24:56 AM