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

Portrait by John W. Pearson




September 7 , 2007

State Senator Don Perata’s SB67 sideshow vehicle tow bill passed in the Senate this week with no dissenting votes, not surprisingly, and now goes to the desk of Governor Arnold Schwarzenegger for consideration. It will not be surprising if Mr. Schwarzenegger signs it and thus propels it back into law, but it will be sad if he does. Fluidly, easily, without so much as a whimper of complaint from the usual civil liberties lobbies, California lops off a branch of the tree of Constitutional protections—the right of a citizen to due process before the seizure of property. But since the sideshows are so unpopular and the sideshow participants voiceless and unrepresented, we hardly think it matters, and wonder why this columnist—alone amongst all other sources—continues to make a fuss about it.

It matters.

It matters because Mr. Perata’s SB67 sideshow vehicle tow law—born in an Oakland experiment but available for application anywhere in the state—establishes and cements a precedent that allows police departments and cities throughout California to target “undesirable” elements in their jurisdiction, providing the ability to enact punishments without the bothersome necessity of having to first go before a court of law to determine that some law has been broken.

That should bother us because history has taught that once granted such extra-constitutional abilities to be enacted against one set of “undesirables,” governments get greedy and seek the power to enact them against others, and soon enough what we thought was a solid and flowering tree of constitutional protection has been hacked and sawed round and round, beyond recognition.

Already, ominously, it has begun to happen with SB67, even before the governor’s anticipated signature turns it into enforceable law.

Some brief background.

SB67 is the reinstatement of a bill originally passed in the sideshow hysteria of 2002, a bill that expired in January of this year after Oakland city and police officials failed to come back to the state legislature to provide information on how the original bill had been enforced, or why the bill was still needed. The original 2002 bill, the “U’Kendra Johnson Memorial Act,” the marriage of Oakland Police Department parsing and a local politician’s—Mr. Perata’s—desire to make a political gain out of a terrible tragedy. But to understand that you have to read carefully and patiently, all the way down to the end of the news accounts.

At the bottom of last week’s MediaNews story (“Bill Meant To Put Dent In 'Sideshows'”) about the passage of SB67 in the assembly, MediaNews Sacramento Bureau reporter Steve Geissinger writes: “The reinstated law would again be named the U'Kendra K. Johnson Memorial Act, after a 22-year-old Oakland woman who was killed in 2002. A suspected sideshow participant being pursued by police crashed into the car Johnson was riding in.”

“Pursued” is the operative word here.

It is against Oakland Police Department policy to “chase” an individual accused of a non-felony crime, as was the case in the U’Kendra Johnson death, when Oakland police officers went after the car which they had observed “doing donuts” in the middle of Foothill Boulevard near Seminary. So to keep from admitting that they broke OPD policy and “chased” a driver for a minor traffic violation, the police officers involved and OPD officials have consistently said that police did not “chase” the driver, but only “pursued” him. The difference in wording meant little to U’Kendra Johnson, who died instantly when the “pursued” or “chased” car ran a stopsign on Seminary Avenue and plowed into the side of the car Johnson was riding in. But the difference in wording meant Oakland police were able to get away with not breaking an OPD policy that directly led to the death of an innocent Oakland citizen. That police can be so shady when asked to give their “word” should be a sobering enough thought as California citizens now contemplate the passage (or re-passage) of a bill that allows the confiscation of major pieces of property solely upon a police officer’s “word.”

In Oakland, the original “U’Kendra Johnson Memorial Act” was designed to go after participants in Oakland’s sideshows, but since “sideshows” is not a term that is defined in state law, this has become a moving target aimed in many creative ways by Oakland police.

The original state law somewhat loosely defined the offenses under which a vehicle could be towed and impounded for 30 days—the offenses being generally “reckless driving”—but that was not loose enough for some Oakland police officers. Instead, some of them enforced the state car confiscation law by using the definitions of sideshows contained former Mayor Jerry Brown’s old arrest-the-sideshow-spectators Oakland city ordinance. Mr. Brown’s ordinance said that police could use several observations—cars spinning donuts, a large number of spectators, drivers playing their music loud, for example—to determine that a sideshow was going on. These occurrences were intended to be used in combination. Instead, some Oakland police took single occurrences—rather than the intended combinations of occurrences—out of the Oakland ordinance and then applied them to the state law. Thus you had the most infamous instances where Oakland police used the “U’Kendra Johnson Memorial Act” anti-sideshow law—written for violations of the state reckless driving statute—to tow and confiscate the car of a 35 year old basketball coach because the coach was driving through East Oakland taking team members home while allegedly playing his music too loud, something which the participating police officers said constituted participation in a sideshow.

How has the original bill actually been enforced? Some media outlets, at least, think there is enough data available to make a determination.

A September 1 online California Chronicle article describing the passage of SB67 in the Assembly (“Perata Bill Cracking Down On Sideshows Clears Assembly Floor”) reads, in part, “The bill, SB 67, would reenact the provisions of SB 1489, also by Perata, that was signed into law in 2002 and contained a sunset date of January 1, 2007. The city of Oakland requested extending the law after collecting data showing that it was effective in keeping the streets of Oakland safe.”

Really? The Oakland Police Department has never publicly released a report in Oakland, to my knowledge, showing data collected involving the enforcement of the original sideshow car confiscation bill, or what specific effect such enforcement had on sideshows in Oakland. Officials in the Oakland Police Department’s Records Division, in fact, have told me that they are unable to isolate such data between 2002 and 2004, the period when enforcement of the law was at its highest. So where is this data “collected” that is referred to in the California Chronicle article, and who was it “showed” to? I’ve asked repeatedly, and I haven’t seen it.

Meanwhile, while Oakland police fail to provide information on how the original law was enforced in the past, we are getting a foretaste on possible expansion of the newly-enacted law’s targets in the future.

In the same MediaNews article cited above, we learn that “(Governor) Schwarzenegger has not taken a position on SB67, but supporters expect him to sign it. … The governor also has been sympathetic toward Oakland's efforts to quell gang violence, which can spring from sideshows.”

The “gang violence … can spring from sideshows” is the phrase that should stick out, here, if you’re astute and have been paying attention. It's doubtful that the MediaNews reporters came up with this phrase themselves.

Gang violence is one of the new buzz words in California political and law enforcement circles, a serious and rising problem into the curbing of which a lot of state attention and money is being poured. It is a particular problem in Oakland, the source of many of the murders which have taken place in the city over the past couple of years.

But what is the connection between gang violence and sideshows? Do groups from different gangs make a habit of meeting at sideshows to fight? How much of the violence that takes place at sideshows can be attributed to gang rivalry? For that matter, how much violence takes place at sideshows? We have only anecdotal information, nothing more, because no official report written by any agency of the City of Oakland appears to exist that provides any documented evidence. And so we have a “solution” in hand, before we have determined or defined the problem. A bad way to run a government, as experience has taught us.

We have already seen instances where vehicles were towed and confiscated in Oakland—incorrectly applying the state sideshow law—for someone simply playing their music too loud. With the turn towards curbing gang violence, will we soon see vehicles towed and confiscated on the word of police that the vehicle was displaying something which the police interpreted to be a gang “color?” And, if so, will this actually do anything to actually stop gang violence, or will it be a convenience merely to be used by (some) police and (some) politicians to “show” that “something is being done about the problem, your civil servants are serving you, and your tax dollars are at work.”

There was a simple fix that would have remedied all of this, at least with regard to the new introduced “U’Kendra Johnson Memorial Act,” Mr. Perata’s SB67. Instead of allowing the 30 day car confiscation to take place immediately, upon the police officer’s word that a violation had occurred, with the towing and storage fees to be reimbursed if the charges were not proven in court, the act could have been amended so that the towing and confiscation could not take place until a conviction in court on the underlying offense. That would have preserved our Constitutional protections—which we say are supposed to be important—at the same time keeping intact all of the punishments in SB67 which supporters say are important.

Unfortunately, I couldn’t get anybody interested in making this change to the bill.

I worry about the loss of constitutional protections which are at the heart of Mr. Perata’s bill. I worry that it happened so easily, in the State of California, with almost no dissent. I worry about what will come next.

I worry that the rest of us don't seem to be worried.