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Memo to Police: Your Power To Coercively Stop People Shouldn't Be Used for Tourism Gimmicks:

The Chicago Tribune [UPDATE: link fixed] reports:

Last week [Kalona, Iowa's] Chamber of Commerce and Washington County sheriff pulled over people with out-of-state license plates and offered them an all-expense paid visit ... to the town of 2,300, about 20 miles southwest of Iowa City....

[L]ast Thursday chamber member Larry Moeller and Sheriff Jerry Dunbar set out to find a tourist to "arrest."

"We'll go up to the car and ask them if they have about 20 hours to spend with us here in Kalona," Moeller said.

Armed with binoculars and flashing red lights, the pair began looking for an unsuspecting passer-by....

It didn't take long before [one couple] were persuaded to take the detour into Kalona, where they were given a basket full of goodies from local businesses, toured the local attractions and met the town's mayor.

They also were treated to dinner and even a night's stay.

"It's interesting, it's fun. He probably pulled over the right people. We didn't really have an agenda," said Cheri Cunningham. "Everybody's been so nice, so friendly, and the little downtown area here is darling."

Well, I'm pleased that the Cunninghams aren't personally upset by this. But it seems like an abuse of power, and a Fourth Amendment violation. As I wrote about a similar program, a police officer's flashing red lights at a driver, which causes the driver to support, constitutes a seizure — a situation "when the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen." Under the Fourth Amendment, such seizures must be reasonable, which generally means (for brief seizures) either that there's reasonable suspicion that the seized person has committed a crime (including a traffic infraction), or that there's some administrative need mandating a particular non-law-enforcement search or seizure system (such as airport screening). Neither is present here — the desire to promote tourism is surely not enough of an "administrative need" to justify seizures — so the stop violates the Fourth Amendment.

More broadly, a police officer is giving you a fright, taking up your time, and likely slowing down other drivers (who are concerned about safety, or who are stuck behind other drivers who are gawking). As importantly, the police officer is exercising his coercive authority over you. That he's doing it for a good motive doesn't change the fact that for the few moments that you're being pulled over, your liberty is being restrained, however briefly. Some such restraints on liberty have to be tolerated, but it seems to me that for each there should be a very good reason. An invitation to stay in town, even combined with free goodies does not, I think, qualify as a very good reason.

For yet another similar story from five years ago, see here. Thanks for the pointer to PopeHat, which has more thoughts on the case.

Laura(southernxyl) (mail) (www):
The similar story is pretty horrifying. I4 is 70 mph for most of the stretch between Orlando and Tampa. There's a heavy traffic load pretty much all the time and spectacular wrecks often enough to make me nervous about driving on it. Anything that needlessly complicates that stretch of highway - if that's where the cops were working - is a very bad idea.
9.21.2009 7:55pm
Mikhail Koulikov (mail):
Isn't the point of getting into a position of power - becoming a police officer - or a government official, a professor, a senior corporate officer, law firm partner, or whatever - being able to do whatever you want and not having to justify yourself?
9.21.2009 8:02pm
corneille1640 (mail) (www):
Another disadvantage to such a program might also be that it would endanger officers. Who knows what type of person they might try to pull over?
9.21.2009 8:05pm
Harry Lime:
Prof. Volokh-

When I clicked on the "Chicago Tribune" link it went to a photo of you (I think).

[Whoops, fixed, thanks! -EV]
9.21.2009 8:16pm
Ken at Popehat (mail) (www):
Prof. Volokh-

When I clicked on the "Chicago Tribune" link it went to a photo of you (I think).



The Chicago Tribune became a Volokh fansite so gradually that I never even noticed.
9.21.2009 8:44pm
Specast:
Seems like an abuse of power? It's a pretty clear abuse of power.
9.21.2009 8:45pm
Monty:
If the officer finds drugs or other contraband would it be supressed?

What if the person being pulled over under this program flees? You could imagine a string of events following resulting in injury or death to the person, police officers, or innocent bystanders. What impact would the suspicionless stop have on the chain of criminality? Would the whole chain be tainted?
9.21.2009 8:55pm
clerk1231231234 (mail):
The professor's post, while correct, is a clear example of why most people hate lawyers.
9.21.2009 8:59pm
SuperSkeptic:
I'm with Specast:

More broadly, a police officer is giving you a fright, taking up your time, and likely slowing down other drivers (who are concerned about safety, or who are stuck behind other drivers who are gawking). As importantly, the police officer is exercising his coercive authority over you.

As importantly? Should read more importantly.
9.21.2009 9:01pm
Ken at Popehat (mail) (www):

The professor's post, while correct, is a clear example of why most people hate lawyers.


I doubt "most people." Perhaps people conditioned and willing to be submissive to the government, or to view constitutional limitations on government power as technicalities or irritations.
9.21.2009 9:12pm
D.O.:
It reminds me of an anecdote about a person of leftist persuasion stopped by a cop in Salazar's Portugal. There was even a low-level chase involved. The guy was stopped to be presented with a "driver of the month" award...
9.21.2009 9:12pm
einhverfr (mail) (www):
Qualified immunity wouldn't protect the officers in this case, would it?
9.21.2009 9:17pm
Bama 1L:
a person of leftist persuasion stopped by a cop in Salazar's Portugal

How long until someone starts arguing that Salazar, like Franco and Mussolini, was a leftist himself?
9.21.2009 9:18pm
Rod Blaine (mail):
Marge Simpson: You've worked hard at the bowling alley. Why don't you ask for a raise?

Homer: Yeah, a raise. I've never been good enough at any job to deserve one before, but I'm damn good at this one. That's it: I'm going to march right up to Al and say --

[at the alley]

Homer: Steve! I mean, Al! I think I deserve a raise.

Al: Aw, you're a hard worker, and I'd like to give you a raise, but the alley just ain't doing enough business to pay that kind of money.

Homer: How about...if I _triple_ the business? Then could I get a raise?

Al: Well, yeah, but --

Homer: [motions him to stop]

[shot of Homer reading "Advanced Marketing" at home] [shot of garbage can containing "Advanced Marketing" and Homer reading "Basic Marketing"]

[shot of both books in garbage and Homer reading the dictionary]

Homer stares at a bowling ball for a while after looking up "marketing", then leaps forward: "Of course!" He stands in front of the bowling alley firing a shotgun repeatedly into the air and entreating the screaming people around him to come and bowl.

Lisa: Mom, make Dad tell the story right!

Marge: That's what really happened.

Lisa: Oh...

- "And Maggie Makes Three" (1995)
9.21.2009 9:24pm
FantasiaWHT:
And yet we've chosen suppression as the remedy for these violations, to protect the guilty instead of the innocent who suffer constitutional violations.
9.21.2009 9:27pm
Gov98 (mail):
Um, It's pretty clearly unconstitutional, but so? Even for a civil lawsuit, what are the damages in this case? Some inconvenience, but that's probably less than the overnight stay and whatever, and I bet if you get the package you have to waive a civil suit, if you don't want the package and still want to sue, what are the damages? $100 for your time?

It is absolutely clear that if you have drugs or some other illegal substance (fireworks) or a murder weapon in your car all that evidence would have to be suppressed so it seems like a stupid policy since it could only result in bad results to the police (suppression of important evidence say a body for example), or goodies to the law abiding citizen. The innocent and the crook get a bonus out of the program. That's why it's a bad idea, but not that much worse that cash for clunkers.
9.21.2009 9:38pm
Joseph DiPalermo:
Robert Jordan sued the New Haven, Conn., police department after it rejected him as a police officer because he scored too high on an intelligence test. But U.S. District Judge Peter C. Dorsey has dismissed Jordan’s suit, ruling that he “may have been disqualified unwisely, but he was not denied equal protection” as defined by law. Jordan’s IQ is approximately 125, versus a national average police officer IQ of 104. New Haven argued that a too-smart cop “could soon get bored with police work and quit after undergoing costly academy training.”(AP)

Q.E.D.
9.21.2009 10:06pm
jackal (mail):
Given this was Kalona, I wouldn't worry too much about the other drivers being slowed down - probably half of them were driving horse-n-buggies anyway, and the other half was stuck behind them Amish.
9.21.2009 10:51pm
Bob from Ohio (mail):

I doubt "most people." Perhaps people conditioned and willing to be submissive to the government, or to view constitutional limitations on government power as technicalities or irritations.


Maybe "most people" means people with an actual sense of humor.

I guess those United Way "arrests" would be even more of an "abuse of power".

Only lawyers would see anything wrong with this harmless stunt.
9.21.2009 11:09pm
Ken at Popehat (mail) (www):
Say, Bob, answer me this:

What would have happened if someone had not pulled over, and just kept driving?
9.22.2009 12:07am
Ricardo (mail):
It sounds like the town's Chamber of Commerce is too cheap to spend real money on a professional marketing campaign. What's next?

Cop: License and registration please. Do you know why I pulled you over?

Driver: No, officer.

Cop: Well I see here your insurer is AAA. Now, that's not a crime in this jurisdiction but it ought to be. Do you know how much you can save by switching to GEICO? If you call this 800-number here within 24 hours and mention my name, you get a free souvenir T-shirt!
9.22.2009 12:49am
Brooks Lyman (mail):
A friend, driving with his wife one evening in a nearby town, was pulled over by a cop who asked him if he knew he was going 35 MPH in a 45 MPH zone. My friend that that over and threw the question incredulously back at the cop, who said something like, "just thought you'd like to know." That particular cop had a reputation for pulling this sort of stunt.

In my opinion, police far too often create a worse hazard by pulling people over on roads where one cannot safely get out of the way of traffic, than the offender posed while driving. I generally turn on my flashers and proceed to a safe spot to pull over if subject to a traffic stop; the cops get a bit upset until I explain what I was doing....
9.22.2009 1:20am
Harsh truth:
I generally turn on my flashers and proceed to a safe spot to pull over if subject to a traffic stop; the cops get a bit upset...


That's felony eluding. No kidding.
9.22.2009 7:44am
Tom Tildrum:
"a police officer's flashing red lights at a driver, which causes the driver to support, constitutes a seizure"

Support?
9.22.2009 8:21am
Just Dropping By (mail):
I guess those United Way "arrests" would be even more of an "abuse of power".

There's no constitutional dimension since United Way isn't a state actor. I will say, however, that the third time I got a call at work telling me that I would be "arrested," I ripped the guy a new one about how inappropriate that whole scheme is and told him I was never donating to the organization again as long as they kept calling me at work about it. That was almost three years ago and they haven't called me back.
9.22.2009 9:16am
Bob from Ohio (mail):

What would have happened if someone had not pulled over, and just kept driving?


Nothing.
9.22.2009 9:52am
Ex-Fed (mail) (www):
Bob from Ohio:

Nothing.



So, Bob, you are taking it on faith that if some out-of-state tourist refused to pull over, that the deputies featured in this story, recognizing that they had no lawful authority to pull the car over in the first place, would not escalate? That they would not take it as an affront to their AUTHORITAH, and call for backup and hound the car until it stopped and then arrest the person?

You think they wouldn't invent some traffic violation to justify the initial stop under those circumstances?

Your experience with law enforcement is different than mine. Also, we differ on whether it is appropriate for law enforcement to detain people involuntarily -- however briefly -- for a joke or for fun or for some charitable program.

[I posted above as Ken -- lost my login from home]
9.22.2009 10:16am
U. Va. Grad:
what are the damages? $100 for your time?

To the extent it's a § 1983 violation, the damages are $100 for your time, plus attorneys' fees. If I were the town, I would stop this sooner, rather than later, on the off chance that someone gets upset enough to make an example of the town using the court system, most likely by bleeding them as much as possible through fees.
9.22.2009 10:55am
Miss P (mail) (www):
It's clearly a constitutional violation, and quite possibly a serious misdemeanor false imprisonment under Iowa Code 710.7.

That said, I'm not surprised those 'stopped' didn't think about that, or that there weren't any complaints to speak of - this is the first I've heard of it and I practice in the area and have a bunch of family that live nearby. That stretch of 218 is mostly local, with the exception of people traveling from Minnesota to St. Louis. Many locals would think it's a cute idea, not an affront to liberty.

As far as PR goes, my guess is that it was more the
Washington County powers-that-be, rather than the Amish in Kalona, who thought this one up. It would be fairly typical.
9.22.2009 11:27am
Miss P (mail) (www):
Oh, and for Harsh Truth - putting on the flashers and pulling over at the next safe place is NOT a felony eluding in Iowa. Not unless you're going 25 MPH over the speed limit, AND either 1) You injure someone; 2) You're DUI/OWI; or 3) You're participating in a felony. The best/worst you could get is a serious misdemeanor, and that only if they could convince an Iowa jury that you were willfully disobeying - good luck with that.
9.22.2009 11:33am
extractor:
Because officer is in position of authority, surely some people will be coerced to go visit the town even when they had other plans. I personally would feel uncomfortable rejecting such an advance.
9.22.2009 11:52am
Harsh truth:
Oh, and for Harsh Truth - putting on the flashers and pulling over at the next safe place is NOT a felony eluding in Iowa.


Miss P,

This isn't a debate.

Take the plea. Or tell it to the jury.

Good luck with that driving while black conviction on your record.
9.22.2009 12:04pm
Gary McGath (www):
It's intimidation, plain and simple. If a cop stops me with flashers and asks if I have 20 hours to spend in their town, all expensies paid, that amounts at least to making me feel that I'm under arrest.

I would ask if I was under arrest, and if so, under what charge. If they refused to answer, then I would demand access to a lawyer. But I would have the feeling through all this that I was dealing with out-of-control cops who might do anything. At least with a real address with real charges I'd know what I was dealing with.
9.22.2009 1:19pm
Virginian:
Twice in my life I have been pulled over by the police for the sole purpose of conveying a (non-urgent) message to me. Of course, those were cops that I knew and it was in my home town.

The second time was by the police chief to tell me that my concealed handgun permit was ready to be picked up.
9.22.2009 1:29pm
ChrisTS (mail):
The professor's post, while correct, is a clear example of why most people hate lawyers.

I do not understand this, and none of the subsequent discussion has helped.

Is the idea that it only some kind of ambulance-chasing mentality would lead one to think this use of the police is unacceptable?

Most people, ahem, do not expect to be pulled over by the police unless the latter have reason to believe something is wrong. If I were pulled over while traveliing, I would be damned angry to find out that it was a marketing ploy to get me to visit some local town.
9.22.2009 2:28pm
Brooks Lyman (mail):
Harsh Truth &Miss P,

Not that I get pulled over very often, but once I pulled over as far as I could go (on a narrow curve with no shoulder between the pavement and the guardrail) and it was so obviously unsafe that the cop told me (they had a loudspeaker in their car) to drive ahead to a safer spot. Seems like a sensible thing to do anyway, and I value our police, so don't want to have them get flattened by some idiot as they are getting out of their cruiser to walk up to my car.

I'll take my chances on the felony evading bit, since I am driving with flashers on and at a slow speed - obviously not evading. Never had any problem so far; this only happens once every 4 or 5 years, anyway. This is Massachusetts, for what it's worth.
9.22.2009 2:53pm
jimsjournal (www):
And what about other traffic? Many states have recently passed laws saying that if there is an emergency vehicle (police car, ambulance, fire vehicle, etc.) stopped on the right shoulder of a road with its flashing lights turned on, then any vehicle passing that emergency vehicle must slow down. If this is a multi=lane highway and they are traveling in the right hand lane, they must move one lane to the left and slow down before passing the parked emergency vehicle.

I have a sister-in-law who came upon a state police car (in a southern state) parked on the shoulder of a multi-lane highway shortly after that state had passed such a law (although she had never heard of this new law). The trooper had evidently written someone a speeding ticket. That person had received a ticket and had left and the trooper was sitting in his parked car (with his flashing lights still on) completing some paperwork. My sister-in-law slowed to just below 50 (on a 65 mph highway) but did not shift to the left lane) and as she passed the trooper, he pulled out behind her, hit his siren, and pulled her over and gave her a ticket for passing a stopped emergency vehicle. Many more states have since passed such laws, but have failed to give them much publicity -- apparently southern states are no longer the only ones viewing these laws as being handy revenue generators.

So... would other cars on the highway be risking tickets if they failed to move one lane to the left... or risking accidents if they did make such a move?
9.22.2009 5:14pm

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