Surviving Special Order 3 – Limitation on Pretextual Stops
Last month, I discussed the IG report that resulted in the Police Commission requiring the Department to implement a policy on pretextual stops. It is now policy, and it is time to discuss the rules imposed by Special Order 3 and what an officer needs to consider before flipping on those reds and conducting a stop.
It was on March 1, 2022, that the Commission discussed and approved the policy. You can watch the Police Commission meeting here at 78 minutes after the meeting is called to order.
It started with City Council Member Marqueece Harris-Dawson applauding this big step in building trust in the community. The Department promised the Commission that the policy would be rolled out with lots of training for officers including videos and a short exam to make sure officers understand. The Department was asked to report back on the training in 90 days.
Commissioner Briggs expressed the opinion that pretext stops did not result in taking guns off the street and curtailing violent crimes, it only promotes alienation and lack of trust in segments of the community harming black and brown communities without stopping crime. The revised policy is that officers can make pretext stops if they can articulate safety concerns. What does that mean? According to the order “Therefore, absent intelligence or information connecting an individual to a crime or public safety concern, less attention should be given to observations of vehicle equipment violations where no strong causal connection to collisions — and hence public safety — exist.” [emphasis added]
As a practical matter, whether you agree or disagree with this philosophy, it is the policy. In fact, the Special Order incorporates discipline language. “Note: A failure to sufficiently articulate the information which – in addition to the traffic violation – caused the officer to make the pretext stop, shall result in progressive discipline, beginning with counseling and retraining. Discipline shall escalate with successive violations of this mandate.” [Emphasis added]
So, to avoid discipline, how do you decide whether you can make a stop without violating this policy? It can be confusing. For instance, a pretext stop is defined as using a minor traffic or code violation as a pretext to investigate a more serious crime that is unrelated to that violation. “It is the Department’s policy that pretextual stops shall not be conducted unless officers are acting upon articulable information in addition to the traffic violation, which may or may not amount to reasonable suspicion, regarding a serious crime.”
What is considered a serious crime? “(i.e., a crime with potential for great bodily injury or death), such as a Part I violent crime, driving under the influence (DUI), reckless driving, street racing, street takeovers, hit and run, human or narcotics trafficking, gun violence, burglary, or another similarly serious crime.” [emphasis added]
Furthermore, apparently pretextual or not, any stops for minor traffic or code violations can be made “only when the officer believes that such a violation or infraction significantly interferes with public safety.”
That would mean that a broken taillight cannot be used as the basis for a stop unless you can articulate why this stop is connected to a serious crime. And the Special Order specifically tells you that “Such decisions should not be based on a mere hunch or on generalized characteristics such as a person’s race, gender, age, homeless circumstance, or presence in a high-crime location.” Paradoxically, if you can articulate that the stop is connected to a serious crime, do you need an equipment violation to make the stop? Probably not, but my advice would be to throw it in anyway.
If you do decide to make a stop, the Special Order requires some further actions.
First, the order advises that you should articulate your “public safety reason” for the stop on Body Worn Video (BWV) and should include any questions asked by the suspect and your answers.
Second you must pay attention to the duration of the stop. “Duration and Scope of All Stops. Officers’ actions during all stops (e.g., questioning, searches, handcuffing, etc.) shall be limited to the original legal basis for the stop, absent articulable reasonable suspicion or probable cause of criminal activity that would justify extending the duration or expanding the scope of the detention. Officers shall not extend the duration or expand the scope of the detention without additional reasonable suspicion or probable cause (beyond the original legal basis for the stop).” [emphasis added] Based on the first requirement, you can assume the reasons for asking to exit the vehicle, searches, handcuffing or any extended time must be explained on BWV. And don’t forget the special rules for obtaining consent for anything you do. (Must be obtained on BWV, must have advisement that consent can be withdrawn, etc.) And finally, read the new Field Interview rules before you decide to write an FI.
Third, the order requires that you follow the tenets of your Procedural Justice training. “Conduct During the Stop. Officers are to ensure their conduct during the course of any stop demonstrates the tenets of Procedural Justice, fairness, and impartiality. Consistent with the Department’s procedural justice and community engagement initiatives, when tactics, operational security, and investigative continuity permit, officers shall, as early as practicable, provide the detainee(s) with the information that caused officers to stop them.” [emphasis added] And you can bet there will be an audit of your BWV somewhere down the line for the next IG report.
The US Supreme Court has no problem with the legality of pretextual stops (Whren (1996) 517 U.S. 806), nor does the California Supreme Court (Suff (2014) 58 Cal. 4th 1013). It is the Los Angeles Police Commission that has the problem. Your career can be damaged or ended if you decide to make a stop and do not follow the new rules. This Special Order will also be spotlighted and your stop will be placed under an administrative microscope if your stop ends up with a use of force or personnel complaint. Beware and hear Warning Bells.
Be legally careful out there.
