Columns written for the Berkeley Daily Planet newspaper, Berkeley, CA




April 13, 2007

Our conservative friends—the traditional ones, not the pretenders who currently set White House policy—have long cautioned us to be careful about making new law. It is often accomplished in haste, but repented at leisure. Sometimes, we should listen to our conservative friends. They are not always wrong.

So it is with SB 1489, recently revived and reincarnated as SB 67, also known as the “U’Kendra Johnson Memorial Act,” also known as State Senator Don Perata’s sideshow car confiscation bill and act. Passed in haste under false pretenses during Oakland’s sideshow panic in 2002—it was named after a 22 year old Oakland woman whose death was directly caused by a high-speed police chase, not a sideshow—the law only had a five year life, with a built-in provision to examine its impacts, to assess both its value and its dangers, and to contemplate its renewal. Unfortunately, Californians are currently rushing through the review—if you can call it that—quicker than the original enactment.

In the bill’s renewal, which has already passed the California Senate Public Committee unanimously and is currently set for an April 16 hearing before the Senate Appropriations Committee, reads that when “a peace officer determines” that an individual is “engaged in reckless driving on a highway, reckless driving in an offstreet parking facility, or an exhibition of speed on a highway,” the peace officer can seize that car, and the city or county involved can hold the car for 30 days. The legal owner can retrieve the car earlier under certain circumstances. Otherwise, aside from any other fines or criminal penalties, the owner is responsible for paying both the towing and 30 day storage fees.

The average reader may ask why I have made such a big deal about this? If you listen for a moment, I’ll explain.

The problem with Mr. Perata’s sideshow confiscation law is that it neatly reverses the presumption of guilt or innocence, a presumption which we thought was an integral and necessary part of American law, with deep roots in English common law. For that reason alone, we never should have allowed it.

Under the American Constitutional standard of the presumption of innocence, a person charged with a crime must be brought to trial, before a court independent of the charging party, and found guilty before a sentence can be imposed. It is the foundation of American criminal law.

But that is completely overturned in Mr. Perata’s sideshow confiscation law.

Read the paragraph above, again, which tells how the law is triggered. Punishment—the confiscation of the car, and it’s impoundment for a 30 day period—begins when “a peace officer determines” that a crime has been committed. Thus, easily, fluidly, effortlessly, with barely a whimper in protest from conservatives or civil libertarians or progressives alike, what we thought was sacred to our Constitution is tossed and abandoned.

But it gets worse, my friends.

In Oakland, to meet the various exceptions that allow an owner to retrieve the car before the 30 day impoundment period is up, the owner must appear—not before an independent court headed by a judge—but before a hearing officer who works for the City of Oakland, the same city government which was responsible for seizing the vehicle in the first place.

The sideshow car confiscation law also has a problem with defining the offenses which trigger that confiscation. When it was drafted by Mr. Perata in 2002, SB1489 (now reincarnated as SB67) piggybacked onto existing state law which already allowed 30 day impoundments for “motor vehicle speed contests.” Those things are easily defined and understood—we know them as “racing.”

But as much as some people confuse the two, sideshows have never involved racing. Instead, the activity most associated with the events are what is called “siding” or “doing donuts,” in which drivers perform intricate, controlled car maneuvers in a confined space, with the engine torqued up, usually accompanied by smoke from the rubber burning off the tires, often leaving a dark pattern behind in the pavement. To bring this type of activity under the new law, Mr. Perata added the provisions “reckless driving” and “exhibition of speed” to the original “motor vehicle speed contest” offense which triggered the law’s penalties.

That in itself seems impermissibly and fatally vague to leave to the sole discretion of a police officer’s judgment as to guilt or innocence, but Oakland, under the since-departed administration of Mayor Jerry Brown—did not leave it there.

In a memo to the City Administrator entitled “STATUS REPORT FROM THE CHIEF OF POLICE ON THE ABATEMENT OF CRUISING/SIDESHOW ACTIVITIES IN THE JACK LONDON SQUARE/LOWER BROADWAY AREA” issued in January of 2002, former Oakland Police Chief Richard Word defined sideshow activity as including “cruising, loud music, loitering, and various events designed to demonstrate the prowess of individual vehicles (e.g., spinning “donuts” and “laying rubber”).” And, in fact, it is this broader, more inclusive definition of the triggering event—playing loud music while riding in a car, for example—that at least some Oakland police have been using to enforce Mr. Perata’s sideshow confiscation bill.

In the most well-known application of that expanded sideshow offense definition, 41 year-old African-American Oakland resident and basketball coach Eugene Davis had his van seized by Oakland police in the summer of 2005 in East Oakland while Mr. Davis was driving two of his team members home. His offense, according to the police? Playing his car radio too loud. Eventually, Mr. Davis got both his van and some of his money back from the impoundment lot, as well as a public apology from Police Chief Wayne Tucker. But that, perhaps, was only because Mr. Davis had the help of Oakland police monitors PUEBLO organization, and the fact that Mr. Davis’ activity—even if he was playing his van radio “too loud” while riding through East Oakland—did not remotely fit the category that state legislators intended when they passed Mr. Perata’s sideshow car confiscation law. If Mr. Davis had been 23 instead of 41, however, most people hearing about his situation would have assumed that he was guilty. Solely on the word of an unknown, unnamed police officer.

We also know of the most horrific result of the bill, the shooting of three Latino youth from Sacramento while the youth were walking through East Oakland streets in the early morning hours last September. The youth were walking—not riding—on the streets of East Oakland because Oakland police had seized their car on the word of one of the officers that the youth had been doing donuts in their car at a sideshow, leaving the youth to make their way out of Oakland on foot, the best way they could. This was a violation of Oakland police policy, which says that drivers and passengers should not be left out on the street after a car is seized, but that police should conduct them to a safe location. And so, thought to be members of a rival gang by another group of Latino youth driving by, they were shot.

But these are just the two most publicized abuses of Mr. Perata’s sideshow car confiscation law. How many others are there?

When the California Legislature originally passed Mr. Perata’s bill in 2002, it provided for a procedure for us to find out. The bill was scheduled to last only until the end of 2006 at which time Oakland, or any other interested city, could return to Sacramento and say that the law continued to be necessary, and ask that it be renewed. Inherent in that “sunset” provision would be that Oakland—which had originally requested he law—provide facts and figures in a detailed study as to how the law had been applied and what was its effects, as well as have officials present themselves for questioning by state legislators.

So far, both Oakland officials and state legislators have failed to do that.

Neither the City of Oakland nor State Senator Perata came to the legislature last year to ask for renewal of the original bill in time to meet the sunsetting deadline, which would be an indication that neither the city nor the senator thought the law was all that important. And so the law expired, in January of 2007. But then came both the city and Mr. Perata, insisting that the law was important, so important that it must now be reinstated on an “urgency” basis, without the usual scrutiny that ought to be used when a basic Constitutional right is breached.

How lax was that scrutiny? At the first hearing on SB67, held before the Senate Public Safety Committee last month, Captain David Kozicki, representing the Oakland Police Department and the man who has run OPD’s sideshow abatement program since its beginning, said that “the law hasn’t been used that much in Oakland. Maybe 25 times since it was passed.” “Maybe” 25 times in five years? Wasn’t he sure? Was there some report somewhere, either to the legislature itself or to the City of Oakland, to back that up? Anxious to get on the other business, the assembled State Senators did not ask Mr. Kozicki to clarify further.

Myself, I’m not so anxious. I’ve put in a public records act request to the Oakland Police Department, asking for their records on the use of Mr. Perata’s sideshow car confiscation law over the last five years, how many times it has actually been imposed, for what offenses, and under what circumstances.

Meanwhile, while the law was initiated by Oakland officials to apply to a unique Oakland situation, it applies statewide, and Oakland police say other police jurisdictions are now using it as well. Which jurisdictions? How? Again, we don't know.

If we are going to suspend parts of the federal Constitution in both Oakland in particular and California in general, which dearly treasures its progressive reputation, we ought to know why, and for what, don’t you think? Or are we not interested because, after all, we believe it only involves people participating in sideshows? But if no-one is asking the questions, how do we know that’s true?