CC 081213 Dept 14 Lapp L

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SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF LOS ANGELES DEPARTMENT 14 LOS ANGELES POLICE PROTECTIVE LEAGUE, HON. TERRY GREEN
) ) ) PLAINTIFF, ) ) SUPERIOR COURT VS. ) CASE NO. BC483052 ) ) CITY OF LOS ANGELES, ) ) ) DEFENDANT. ) __________________________________) REPORTER'S TRANSCRIPT OF PROCEEDINGS MONDAY, AUGUST 12, 2013
APPEARANCES: FOR THE PLAINTIFF LAPPL: FOR PLAINTIFF HAROLD STURGEON: FOR THE DEFENDANT CITY OF LOS ANGELES: FOR DEFENDANT INTERVENORS: SILVER, HADDEN, SILVER, WEXLER & LEVINE BY: RICHARD A. LEVINE, ESQUIRE 310.393.1486 JUDICIAL WATCH BY: PAUL J. ORFANEDES, ESQ. 202.646.5172 CITY ATTORNEY BY:GERALD MASAHIRO SATO, DEP. CITY ATTY. 213.473.6875 AMERICAN CIVIL LIBERTIES UNION BY: MICHAEL KAUFMAN, ESQ. LUCERO CHAVEZ, ESQ. PETER BIBRING, ESQ. 213.977.9500 X232
ANITA B. ALDERSON, CSR NO. 11843 OFFICIAL COURT REPORTER PRO TEMPORE
COALITION OF COURT REPORTERS OF LOS ANGELES 213.471.2966 WWW.CCROLA.COM
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CASE NUMBER: CASE NAME: LOS ANGELES, CALIFORNIA DEPARTMENT 14 REPORTER: TIME: APPEARANCES:
BC483052 LAPPL VS. CITY OF LOS ANGELES MONDAY, AUGUST 12, 2013 HON. TERRY GREEN, JUDGE ANITA B. ALDERSON, CSR NO. 11843 A.M. SESSION (AS HERETOFORE NOTED.)
THE COURT: MR. LEVINE:
GOOD MORNING. GOOD MORNING YOUR, HONOR, RICHARD
LEVINE WITH SILVER, HADDEN, SILVER, WEXLER & LEVINE, FOR PLAINTIFF, LOS ANGELES POLICE PROTECTIVE LEAGUE. MR. ORFANEDES: GOOD MORNING YOUR, HONOR, PAUL
ORFANEDES WITH JUDICIAL WATCH FOR PLAINTIFF HAROLD STURGEON. MR. SATO: GOOD MORNING, YOUR HONOR, GERALD SATO,
DEPUTY CITY ATTORNEY, FOR THE CITY OF LOS ANGELES, CHIEF BECK AND THE MEMBERS OF THE BOARD OF POLICE COMMISSIONERS. MR. KAUFMAN: GOOD MORNING, YOUR, HONOR, MICHAEL
KAUFMAN, ON BEHALF OF DEFENDANT INTERVENORS, CHIRLA AND L. A. VOICE. I'M HERE APPEARING WITH PETER BIBRING AND
LUCERO CHAVEZ. THE COURT: WELL, HAVE A SEAT. THE FIRST ITEM OF KCAL 9,
BUSINESS IS I HAVE A COUPLE OF MEDIA REQUESTS.
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CBC 2, ANYBODY OBJECT TO ME SIGNING THESE? MR. LEVINE: MR. KAUFMAN: NO OBJECTION, YOUR HONOR. NO, YOUR HONOR. SIR, I'M WITH KNBC AS WELL, MAY WE
UNIDENTIFIED PERSON:
AND MY PEOPLE ARE SCRAMBLING TO FAX YOU PAPERWORK.
ALSO HAVE PERMISSION TO BRING OUR CAMERAS INTO THE COURT? THE COURT: ANY OBJECTION? NO, OBJECTION.
UNIDENTIFIED PERSON: MR. SATO: THE COURT: YES.
NO, OBJECTION. DO YOU WANT A MINUTE? THE ANSWER IS
DO YOU WANT SOME TIME?
(BRIEF PAUSE IN PROCEEDING.)
THE COURT:
OKAY.
I'VE READ ALL YOUR PAPERS.
NOW KNOW ALL I EVER WANTED TO KNOW ABOUT IMPOUNDING VEHICLES IF YOU HAVE NO LICENSE, WAS AFRAID TO ASK IN THE PAST, BUT NOW I KNOW. SO I CAN BE A WHIZ AT COCKTAIL
PARTIES ALONG WITH THE REST OF YOU ENTERTAINING THE GUESTS WITH THE INTRICACIES OF THE IMPOUND, PARDON ME, REMOVAL/IMPOUND/FORFEITURE BECAUSE I'M TOLD THERE IS A DIFFERENCE. OKAY. WHEN I FIRST STARTED READING THIS I WAS
WONDERING IF THIS WAS A REAL CONTROVERSY OR WE WERE DEBATING HOW MANY ANGELS CAN DANCE ON THE HEAD OF A PIN. OBVIOUSLY SPECIAL ORDER IS DIFFERENT THAN 14602. AND IN
ONE OF THE BRIEFS, I THINK IT WAS PLAINTIFF STURGEON, SAID THAT THERE HAD BEEN A DRAMATIC DECREASE IN THE NUMBER OF
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IMPOUNDS FOR PEOPLE WHO HAVE NEVER HAD A LICENSE OR DIDN'T HAVE A LICENSE. AND I DIDN'T SEE THAT GOING CHALLENGED, SO
APPARENTLY THIS IS A REAL ISSUE AFFECTING MANY THOUSANDS OF PEOPLE ON AN ANNUAL BASIS. DO YOU ALL AGREE WITH THAT BY THE WAY? I THINK
YOUR PAPERS HAVE A 26,000 TO 13,000 OR SOMETHING LIKE THAT NUMBER OF IMPOUNDS. MR. LEVINE: YOUR, HONOR, THOSE WERE STATISTICS
THAT THE CITY PROVIDED TO US. MR. SATO: IT WAS A REPORT MADE TO THE COMMISSION.
IT DID REFLECT DOWNWARD TRENDS STARTING EVEN BEFORE SPECIAL ORDER 7, BUT THE NUMBERS THE PLAINTIFFS PRESENTED ARE CORRECT. THE COURT: THANK YOU. SO THIS IS A REAL LIFE
PROBLEM, AND I'M GLAD THAT ALL OF YOU HAVE BRIEFED IT AND BROUGHT IT FOR AT LEAST A RESOLUTION HERE. I'LL TAKE THE POLICE PROTECTIVE LEAGUE MOTION FIRST, AND I WILL GRANT JUDICIAL NOTICE AS REQUESTED. THE
FIRST ISSUE WHICH THEY SPENT THE MOST TIME ON, MOVING PARTY SPENT THE MOST TIME ON, WAS WHETHER IT WAS PREEMPTED BY VEHICLE CODE SECTION 21, I'M SORRY --
(BRIEF INTERRUPTION WITH THE CLERK AT SIDEBAR.)
THE COURT:
OKAY, IS THERE A CHANNEL 22 HERE? CHANNEL 22, YES.
UNIDENTIFIED PERSON: THE COURT: MR. LEVINE:
ANY OBJECTION TO THEM SETTING UP? NO.
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MR. SATO: THE COURT:
NO, YOUR, HONOR. DO YOU WANT A MINUTE? YES, JUST ONE MINUTE.
UNIDENTIFIED PERSON:
(BRIEF PAUSE IN PROCEEDINGS.)
THE COURT:
SO THE POLICE PROTECTIVE LEAGUE HAD A
CONSIDERABLE AMOUNT OF EFFORT SPENT ON THE PREEMPTION UNDER VEHICLE CODE SECTION 21. THE CITY DID NOT DEVELOP MUCH
TIME TO THIS ALTHOUGH THE INTERVENORS DID. AND VEHICLE CODE SECTION 21 IS RATHER EXPLICIT. SAYS THAT EXCEPT AS OTHERWISE EXPRESSLY PROVIDED THE PROVISION OF THIS CODE ARE APPLICABLE AND UNIFORM THROUGHOUT THE STATE AND IN ALL COUNTIES AND MUNICIPALITIES THEREIN AND A LOCAL AUTHORITY SHALL NOT ENACT OR ENFORCE ANY ORDINANCE OR RESOLUTION ON THE MATTERS COVERED BY THIS CODE. INCLUDING ORDINANCES OR RESOLUTIONS THAT ESTABLISH IT
REGULATION OR PROCEDURES FOR ACCESS, A FINE, PENALTY OR ASSESSMENT OR FEE FOR A VIOLATION OF MATTERS COVERED, THAT IS THE KEY PHRASE, BY THIS CODE OR UNLESS EXPRESSLY AUTHORIZED. THAT IS OUR STARTING POINT BECAUSE WE ALL KNOW THIS STATE LAW HAS SUPREMACY AND UNIFORMITY AND IN FACT THERE ARE CASES, I THINK IT WAS -- I HAVE THE CITE HERE SOMEPLACE IN MY NOTES ZACK VERSUS -- ZACK VERSUS CITY OF SAUSALITO, 2008, 165 CAL.APP. 4TH 1163, ANOTHER MATTER, I READ THE LEGISLATIVE COUNSEL BUREAU'S REPORT. THEY ALSO TALKED
ABOUT THE SUPREMACY OF THE STATE VEHICLE CODE SECTION, HOW
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LOCAL AUTHORITIES CAN'T ESTABLISH THINGS THAT ARE MATTERS COVERED BY THE VEHICLE CODE. THERE WAS A CASE CITED,
O'CONNELL VERSUS CITY OF STOCKTON -- THAT WAS A FORFEITURE CASE, PROSTITUTION FORFEITURE CASE, BUT STILL THE BROAD PRINCIPLES WERE ANNOUNCED ABOUT HOW STOCKTON IN THAT CASE COULDN'T HAVE A STATUTE OR A REGULATION OR AN ORDINANCE THAT DIFFERED FROM THE FORFEITURE STATUTES FOR THE STATE THAT IS 41 CAL.4TH 1061. I LOOK THROUGH THIS, AND AS I SAID, MY FIRST REACTION WAS ARE WE REALLY ARGUING OVER SOMETHING THAT IS IMPORTANT. DOES THIS MAKE A DIFFERENCE BECAUSE I DON'T
KNOW WHETHER JUST FROM READING THE STATUTES WHETHER OR NOT THEY CONFLICT OR WHETHER OR NOT THEY MODIFY OR WHAT SORT OF REAL WORLD EFFECT THEY HAVE. WHEN I READ THE STURGEON BRIEF, IT OBVIOUSLY HAS A REAL WORLD EFFECT AND AT LEAST SHOWS A CONSIDERABLE DECREASE ON THE IMPOUNDS. REAL WORLD EFFECT. SO OBVIOUSLY THIS IS HAVING A
I THINK WE'RE KIDDING OURSELVES IF WE
SAY THAT THE SPECIAL ORDER DOES NOT HAVE AN EFFECT JUST COMPLEMENTS, DOESN'T CONTRADICT, DOESN'T MODIFY 14602 BECAUSE APPARENTLY IT DOES. IT DOES. NOW ALSO WHEN YOU READ IT, IT DOES. IT BREAKS OFF APPARENTLY IN THE REAL WORLD
NO LICENSE FROM REVOKE LICENSE, OR SUSPENDED LICENSE, TREATS THEM NOTICEABLY DIFFERENT UNDER THE OTHER CODE SECTION 22651 OR SOMETHING -- YOU NEED THAT -- WHICH I READ AND I TEND TO AGREE WITH THE D.A.'S OFFICE. I DON'T BELIEVE THAT IS AN IMPOUND STATUTE. IT
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SAYS ON ITS FACE THAT IT IS A COMMUNITY CARETAKING STATUTE AND DEALS WITH REMOVAL OF CARS AND, IN FACT, EXPRESSLY IMPLIES WHEN THERE IS NOT AN IMPOUND. IS A DIFFERENCE. READ IT. SO THERE OBVIOUSLY
THIS DIFFERENCE IS MEANINGFUL WHEN YOU
IT'S BEEN WELL ARGUED ABOUT WHAT IT COVERS, HOW
IT CHANGES. THE STURGEON BRIEF, AGAIN, WAS VERY INSTRUCTIVE GIVING HYPOTHETICALS OF WHAT WOULD HAPPEN UNDER VARIOUS SCENARIOS. HOW THE 1462 HANDLES THE SITUATION. HOW
SPECIAL ORDER 7 HANDLES THE SITUATION, AND IT'S NOTICEABLY DIFFERENT. SO THIS IS A REGULATION IN A QUOTE MATTER
COVERED CLOSED QUOTE BY THE VEHICLE CODE THAT DOES CONTRADICT OR MODIFY THE EXISTING STATE LAW. AND I WAS INTERESTED, I READ THE ATTORNEY GENERAL OPINION, I READ THE D.A. OPINION, AND THEY BOTH WERE VERY WELL DONE WHICH IS NOT SURPRISING. ALTHOUGH I TEND TO
AGREE WITH THE D.A. OPINION, THERE IS A MEANINGFUL DIFFERENCE AT LEAST IN CRIMINAL LAW BETWEEN REMOVING A VEHICLE AND IMPOUNDING A VEHICLE. IF YOU WANT, OR IF YOU
FIND EVIDENCE IN THE VEHICLE AND YOU WANT TO USE IT IN TRIAL AND THERE IS A SUBSEQUENT MOTION TO SUPPRESS, THERE IS A MEANINGFUL DIFFERENCE AND THOSE CASES WERE CITED BY THE D.A.'S OFFICE. THEN THEY CAME UP WITH, AND I ALSO READ WITH GREAT INTEREST, THE DECLARATIONS OF SOME L.A.P.D. PEOPLE, HIGH-RANKING L.A.P.D. PEOPLE, I THINK ONE WAS MOORE AND I READ A COUPLE. AND THEY WERE SAYING, LOOK, WE RECOGNIZED WE TRIED TO SOLVE THIS PROBLEM BY GIVING
WE HAD A PROBLEM.
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GUIDANCE TO OUR OFFICERS IN THE FIELD.
AND THIS WAS A
RESULT OF TRYING TO GET SOME SORT OF UNIFORM POLICY TO THE CITY OF LOS ANGELES SO WE WOULDN'T HAVE UNEQUAL APPLICATION. THEIR CONCERN WAS 14602 THUS DISCRETION WITH AND IF THE OFFICER DECIDES TO
THE OFFICER -- MAY IMPOUND.
IMPOUND, WE HAVE THIS MANDATORY 30-DAY IMPOUND PERIOD, BUT THERE ARE SOME SUBSEQUENT SECTIONS THAT TALK ABOUT, WELL, THERE IS AN APPEAL PROCESS, WHATEVER. BUT WE DECIDED THAT THE MAY WAS TOO VAGUE, AND WE WANTED TO HAVE SOME GUIDELINES WHICH IS ALL VERY UNDERSTANDABLE AND VERY LAUDABLE, AND I'M NOT IMPUGNING AT ALL THE MOTIVES OF THE L.A.P.D. IN DOING THIS. IT'S WHAT
YOU EXPECT FROM PEOPLE WHO RUN LARGE ORGANIZATIONS IS TO TRY AND GIVE GUIDANCE TO THEIR PEOPLE. BUT THIS SPECIAL IT'S MUCH MORE IT CHANGES THE
ORDER 7 IS MUCH MORE THAN JUST GUIDANCE. THAN JUST TRAINING. LAW. IT ACTUALLY CHANGES.
IT CHANGES THE OUTCOME.
AND FOR THAT MATTER, I CAN'T
JUST SAY THIS IS GUIDANCE OR TRAINING AND THEREFORE IT'S NOT AN ORDINANCE OR REGULATION BECAUSE AS THE D.A. POINTED OUT THAT IS JUST SEMANTICS. CHANGER. THIS IS SORT OF A GAME
SO IT'S, I BELIEVE FROM WHAT I'VE READ, IS THAT I AM HAPPY
THE VEHICLE CODE DOES PREEMPT SPECIAL ORDER 7.
TO HEAR ARGUMENT FROM YOU, AND I HAVE READ YOUR BRIEFS THAT ARE VERY INTERESTING. THEY TOOK UP A GOOD PART OF FRIDAY
AND A LARGE CHUNK OF SUNDAY, BUT, NO, IT WAS VERY INTERESTING READING. ARGUMENTS ON THIS. I HAVE READ THE MATERIAL YOU GAVE ME. I HAVE READ I LOOK FORWARD TO HEARING YOUR ORAL
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THE DECLARATIONS. DO YOU HAVE THOSE? THE CLERK: THE COURT:
I RULED ON THE OBJECTIONS.
MA'AM CLERK,
THEY WERE NOT SENT DOWN THIS MORNING. THE OBJECTIONS HAVE BEEN RULED ON.
THERE WERE SOME OTHER ISSUES HERE THAT WERE HOPPING AROUND THAT I SAW. I WANTED TO DISCUSS THOSE AND THEN HEAR YOUR IS THE DISCRETIONARY AUTHORITY OF AN
THOUGHTS ON THEM.
OFFICER TO IMPOUND A VEHICLE UNDER SECTION 14602 INTERCHANGEABLE WITH DIVISIONS OF 22651 (E). THEY ARE DIFFERENT. I BELIEVE THERE IS A MEANINGFUL DIFFERENCE BETWEEN REMOVAL OF A VEHICLE FOR CARETAKING PURPOSES AND IMPOUNDING A VEHICLE. AS I SAID, THERE IS A DIFFERENCE. I BELIEVE WELL, NO,
THERE IS A DIFFERENCE IN CRIMINAL LAW FOR SEARCH AND SEIZURE PURPOSES, BUT THESE HAVE DIFFERENT MEANINGS. NOW I UNDERSTAND THAT 22651 DOES OVERLAP BY CITING 12500 AND 14601 AND OTHER STATUTES. AND IT GIVES THE
OFFICER ANOTHER JUSTIFICATION FOR TAKING A VEHICLE OFF THE ROAD, BUT I DON'T BELIEVE THEY ARE THE SAME. NOW THERE WAS
A CASE CITED, AND THE CITY ATTORNEY ARGUED VERY VIGOROUSLY, THE CASE, THE CHP CASE, I HAVE IT HERE, ARGUED THAT THIS CASE HELD THE PROPOSITION THAT THEY WERE THE SAME IN CALIFORNIA. CALIFORNIA HIGHWAY PATROL, 162 CAL. 4TH 1144,
BUT THAT IS SURE NOT HOW I READ THIS CASE. THIS CASE HAD NOTHING TO DO WITH 22651. INTERESTING CASE, YOU'VE ALL READ IT. IT'S AN
BUT THE CHP PULLED
THE PERSON OVER FOR DRUNK DRIVING AND RATHER THAN -- HE ALSO HAD A SUSPENDED LICENSE. RATHER THAN USING 14602 HE
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USED THE 22651, AS A CONSEQUENCE THE CAR WAS RELEASED A FEW HOURS LATER AND SADLY WAS USED THAT DAY TO -- WAS IN A FATAL AUTO ACCIDENT. AND THE DECEDENTS, HIS NEXT OF KIN,
SUED THE CHP SAYING IT WAS A VIOLATION OF A MANDATORY DUTY. THE COURT SAID NO BECAUSE 14602 SAYS "MAY" AND I THINK THE COURT IS RIGHT. IT HAD NOTHING TO DO WITH 22651; IT WASN'T IT JUST SAID THERE WAS A LINE
EVEN CITED IN THE OPINION.
THAT SAID THE DEFENDANT'S VEHICLE WOULD BE STORED RATHER THAN IMPOUNDED OR RELEASED PURSUANT TO 22651 SUBDIVISION H AND THEN IT CITES TO A FOOTNOTE. OTHERWISE, THE CASE IS
NOT CITEABLE FOR ANY PROPOSITION THAT THESE WERE SOMEHOW COEXTENSIVE BECAUSE THEY ARE NOT -- ON ITS FACE THEY ARE NOT. I ALSO NOTE THE ARGUMENT THAT 14602 VIOLATES THE FOURTH AMENDMENT. I HAD SOME CASES CITED, NINTH CIRCUIT I READ THAT AND
CASE, JUDGE HENDERSON WROTE AN OPINION.
AGAIN I DON'T SEE WHERE THERE IS A FOURTH AMENDMENT COMMUNITY CARETAKING ELEMENT IN THE FOURTH AMENDMENT. IN
THAT CASE, AS I READ IT, THERE WERE TWO PEOPLE WHO WERE FROM MEXICO ONE WAS NAMED RUIZ I THINK, I FORGET THE NAME. RUIZ PARKED HIS TRUCK OR CAR OR WHATEVER IN A WAY THAT OBSCURED A LICENSE TAB. IT WAS NOT CLEAR FOR WHAT. AND THE OFFICER ARRESTED HIM,
AND HE SAID, RUIZ SAID, I HAVE
A LICENSE; I HAVE A MEXICAN LICENSE, BUT HE WAS ARRESTED UNDER THE NEVER BEEN ISSUED A LICENSE SECTION AND THE COURT -- THERE WAS A SUBSEQUENT CIVIL RIGHTS LAWSUIT AND THE COURT POINTED OUT THAT HE SHOULD NOT HAVE BEEN POPPED UNDER THE NEVER HAD A LICENSE SECTION BECAUSE HE HAD A
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LICENSE IN MEXICO. BUT I DIDN'T READ THAT AS READING IN SOME KIND OF FOURTH AMENDMENT LIMITATION HERE, AND I DON'T THINK THE 14602 WAS UNCONSTITUTIONAL AS WRITTEN. LEGITIMATE STATE PURPOSE. MAYBE. IT IDENTIFIES A
THOSE FINDINGS ARE IN 14607.4
IT WAS GETTING LATE LAST NIGHT, I RAN OUT OF
COFFEE, AND THAT SET FORTH A LEGITIMATE STATE PURPOSE. I DIDN'T REALIZE THAT UNLICENSED DRIVERS AND DRIVERS THAT NEVER HAD A LICENSE WERE RESPONSIBLE FOR A DISPROPORTIONATE AMOUNT OF AUTO ACCIDENTS. I JUST DIDN'T
KNOW THAT AND THOSE WERE THE FINDINGS OF THE LEGISLATURE AND NOBODY SEEMS TO CHALLENGE THAT. DIRECTS ATTENTION TO THAT. THIS IS A STATUTE THAT
IT SAYS, WE RECOGNIZE THIS IS A
PROBLEM AND FOR THE PROTECTION OF ALL RESIDENTS OF CALIFORNIA, WE ARE GOING TO INCREASE THE POWERS OF THE POLICE TO IMPOUND VEHICLES IN THOSE SITUATIONS AND THE PURPOSE OF THE IMPOUND WAS TO DENY ACCESS TO THE NEVER BEEN LICENSED PERSON OR REVOKED LICENSE PERSON SO THEY WOULDN'T HAVE THE CAR TO DRIVE FOR 30 DAYS AND, THEREFORE, BE LESS APT TO BE INVOLVED IN AN ACCIDENT WITH SOMEBODY ELSE AND HURT SOMEBODY ELSE. THIS IS A FOURTH AMENDMENT; I DON'T SEE THAT VIOLATING THAT. I CAN'T THINK OF ANY LESS ONEROUS SO I DON'T THINK IT
ALTERNATIVES THAT ARE MEANINGFUL.
VIOLATES THE FOURTH AMENDMENT AS WRITTEN SO THAT WAS ONE OF THE ARGUMENTS THAT WAS RAISED. WHAT WAS THE OTHER ONE. I
THINK THAT PRETTY MUCH COVERS IT. SO I WOULD, IN SUMMARY, I WOULD GRANT THE MOTIONS
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FOR SUMMARY JUDGMENT FROM THE L.A. POLICE PROTECTIVE LEAGUE AND FROM MR. STURGEON AND DENY THE OTHERS. I WILL SAY SOMETHING ELSE. THE INTERVENORS AND
OTHERS MADE ARGUMENTS, THE ACLU MADE ARGUMENTS, THAT WERE MORE IN THE LINE OF POLICY ARGUMENTS. MAY BE GOOD POLICY. AND, YOU KNOW, IT
I'M NOT HERE TO DISCUSS WHETHER A WE DON'T DO WE JUST EXAM
POLICY IS A GOOD POLICY OR A BAD POLICY. PUBLIC POLICY HERE IN THE SUPERIOR COURT. LAWS AND DECIDE DISPUTES.
WHEN I WAS READING IT, I SAID THAT MAKES SENSE, I CAN SEE YOUR POINT OF VIEW. LEGISLATURE. BUT ISN'T THAT WHY WE HAVE A
ISN'T THAT WHY WE ELECT REPRESENTATIVES,
ASSEMBLYMEN OR ASSEMBLY PERSONS OR SENATORS AND ELECT A GOVERNOR THAT IS WHY THEY ARE THERE. PITCH TO THESE PEOPLE. YOU CAN MAKE YOUR
I DON'T THINK THE LEGISLATURE AND
THE GOVERNOR ARE NECESSARILY HOSTILE TO YOUR POSITION AB INITIO. SO MAYBE YOU CAN CARRY THE DAY IN A PUBLIC DEBATE, BUT I DON'T KNOW THAT IT'S MY PLACE AS A JUDGE TO MAKE THOSE, WELL, I DO KNOW, IT'S NOT MY PLACE AS A JUDGE TO MAKE THOSE POLICY DETERMINATIONS. SO WHO WANTS TO GO FIRST. CITY, I ENJOYED YOUR WORK. TELL ME WHERE I'M WRONG. I
I ENJOYED YOUR PAPERS.
ALWAYS HATED IT WHEN I WAS IN TRIAL, AND THE JURY CAME BACK AGAINST ME AND THE JURY SAID, WE THOUGHT YOU WERE REALLY GREAT, OF COURSE, THEY VOTED FOR THE OPPONENT. MR. SATO: TOO, YOUR, HONOR. I'VE HEARD THAT A MORE THAN A FEW TIMES
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THE COURT:
I HEARD MORE THAN MY FAIR SHARE I
MR. SATO:
YOUR, HONOR, THE CITY DOES APPRECIATE
THE TIME THE COURT HAS OBVIOUSLY DEVOTED TO THIS CASE, BUT HERE IS MY CHANCE TO PERSUADE YOU OTHERWISE. THE CITY WOULD PHRASE THE ISSUE A LITTLE MORE NARROWLY THAN I THINK THE COURT HAS. ON THE FACE OF THE
SPECIAL ORDER 7, IT HAS AS ITS STATED PURPOSE GUIDELINES FOR APPLICATION OF THE COMMUNITY CARETAKING DOCTRINE. AND
THAT DOCTRINE DOESN'T HAVE ITS SOURCE IN THE VEHICLE CODE. THE SOURCE OF THAT DOCTRINE IS IN CASE LAW INTERPRETING THE FOURTH AMENDMENT. THE COURT: MR. SATO: I KNOW. SO I THINK IN PHRASING THE PREEMPTION
ISSUE, IT SHOULD BE PHRASED, IS THERE ANYTHING ABOUT THE VEHICLE CODE THAT PROHIBITS A LAW ENFORCEMENT AGENCY FROM ISSUING GUIDELINES AND EVEN DISCIPLINARY RULES OF WHETHER THEY ARE IN WRITING LIKE SPECIAL ORDER 7 OR VERBALLY LIKE IN ROLL CALL TRAINING THAT PROHIBITS THAT AGENCY FROM CREATING THOSE GUIDELINES. THE COURT: NOTHING, NOTHING. BUT WAIT, AS PHRASED THE ANSWER IS IN FACT I EXPECT L.A.P.D. TO HAVE ROLL I
CALL OR HAVE GUIDELINES ABOUT HOW TO EXERCISE ITS POWER. WAS A D.A. FOR MANY YEARS. OFFICE. WE HAD THAT IN THE D.A.'S BUT
WE HAD GUIDELINES ABOUT HOW TO DO OUR JOB.
APPARENTLY, I CAN READ THIS AND I CAN SEE HOW THE STATUTES AND THE ORDER ARE DIFFERENT. WORLD DIFFERENCE. APPARENTLY THIS IS A REAL
IT'S A REAL WORLD THING.
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IF IT'S A REAL WORLD THING, I HAVE TO CONCLUDE THIS IS MORE THAN JUST A GUIDANCE FOR TRAINING, BUT THIS ACTUALLY HAS REAL WORLD EFFECT, WHERE AM I WRONG ON THAT? MR. SATO: WELL, I KNOW IN THOSE REPORTS THAT ARE
IN EVIDENCE, CHIEF BECK ATTRIBUTED SOME OF OR A BETTER PART OF THE DECLINE TO ISSUING SPECIAL ORDER 7. BUT I THINK
IT'S FAIR TO SAY THAT THE DOWNWARD TREND THAT YOU SEE EVEN FROM BEFORE SPECIAL ORDER 7 REFLECTS THE GROWING CASE LAW IN WHICH THE DIFFERENT COURTS, STATE AND FEDERAL, HAVE APPLIED THE COMMUNITY CARETAKING DOCTRINE TO DECISIONS TO IMPOUND VEHICLES. THE COURT: I'M SORRY, I HATE TO INTERRUPT. I SAY
I WANT TO HEAR FROM YOU THEN I INTERRUPT YOU. WHY NOT TAKE THIS TO THE LEGISLATURE? WHY NOT SAY,
WE THINK THE BETTER PUBLIC POLICY IS TO MODIFY VEHICLE CODE 21, 14602, AND THE OTHER SECTIONS, AND ACTUALLY MAKE THIS PART OF THE LAW. THIS. THAT IS THE FRUSTRATION I HAD IN READING
YOU ARE MAKING ARGUMENTS THAT ARE -- YOU'RE SAYING
OR OTHERS ARE SAYING THIS DISPROPORTIONATELY NEGATIVELY AFFECTS A GIVEN PORTION OF OUR COMMUNITY AND THEREFORE WE OUGHT TO MODIFY IT A CERTAIN WAY, ISN'T THAT A LEGISLATIVE DETERMINATION? MR. SATO: LET ME TRY TO RESPOND THIS WAY.
WE CITED CASE LAW THAT SAYS THAT THE STATUTORY AUTHORITY TO IMPOUND UNDER 14602.6 A-1 DOES NOT -- STILL THE IMPOUND STILL HAS TO COMPLY WITH THE COMMUNITY CARETAKING DOCTRINE OR COMPLIES WITH THE FOURTH AMENDMENT. THESE CASES POSIT POTENTIAL SITUATIONS WHERE FOLLOWING
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14602.6 A-1 TO THE LETTER STILL MIGHT NOT COMPLY WITH THE COMMUNITY CARETAKING DOCTRINE. WE CITED TWO CASES, I HAVE FORGOTTEN NOW WHICH -THE COURT: MR. SATO: CITY OF SAN MATEO -PEOPLE VERSUS TORRES AND PEOPLE VERSUS
WILLIAMS AND THOSE BOTH ADDRESS THE ISSUE OF HOW STATUTORY, HERE STATUTORY AUTHORITY UNDER 14602.61 AND ANOTHER CASE UNDER A DIFFERENT PART OF 22651, WAS NOT AN AUTOMATIC. THERE STILL HAD TO BE COMPLIANCE WITH THE COMMUNITY CARETAKING DOCTRINE AND IN ONE CASE BECAUSE THERE WASN'T THAT COMPLIANCE EVIDENCE THAT WAS TAKEN AT AN IMPOUND SEARCH, OR INVENTORY SEARCH, EXCUSE ME, AFTER THE IMPOUND WAS EXCLUDED AT TRIAL. SO THE TWO ARE NOT COEXTENSIVE AND THE COMMUNITY CARETAKING DOCTRINE I THINK THE CASES HAVE POSITED THERE MAY BE SITUATIONS WHERE IT TRUMPS THE VEHICLE CODE. AND THERE IS NO SUGGESTION AND NOTHING IN THE EVIDENCE THAT THE LOS ANGELES POLICE DEPARTMENT IN SAYING THAT SPECIAL ORDER 7 WAS MEANT TO APPLY TO THE COMMUNITY CARETAKING DOCTRINE THAT SOMEHOW IS A SHAM OR IT WAS MEANT TO ACCOMPLISH SOMETHING ELSE -THE COURT: I APPLAUD THE L.A.P.D. FOR DOING --
THEY ARE KNOWN FOR EXCELLENT TRAINING AND GUIDANCE TO THEIR OFFICERS THAT IS NOT WHAT I'M SAYING. MORE THAN JUST TRAINING AND GUIDANCE. MR. SATO: I THINK IT MAY BE MORE INTO THE EXTENT, I'M SAYING THIS IS
I GUESS, OF COURSE I DON'T AGREE IT REQUIRES THINGS DIFFERENT FROM THE VEHICLE CODE, BUT TO THE EXTENT IT DOES,
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I THINK THE QUESTION IS, IS THERE ANYTHING IN SPECIAL ORDER 7 THAT REALLY IS INCONSISTENT WITH THE COMMUNITY CARETAKING DOCTRINE BOTH IN THE IMPOUND DECISION ITSELF OR IN THE DISPOSITION OF THE VEHICLE ONCE IT ACTUALLY IS IMPOUNDED. THERE ISN'T MATERIAL REGARDING WHAT HAPPENS AFTER A CAR IS STORED AND SPECIAL ORDER 7 IS LESS CLEAR. ALTHOUGH
I THINK THAT REFLECTS JUST THE FACT THAT THE CASE LAW INVOLVING THAT PART OF THE IMPOUND PROCESS IS LESS DEVELOPED THAN WHAT I THINK IS A UNIFORM BODY OF CASE LAW SAYING THE COMMUNITY CARETAKING DOCTRINE APPLIES IN EVERY WARRANTLESS SEIZURE OF A VEHICLE. AND THE OTHER THING IS, REGARDING THE 30-DAY MANDATORY RULE. THE COURT: MR. SATO: RIGHT. WHEN YOU LOOK AT THE DIFFERENT
EXCEPTIONS THAT FOLLOW THAT ARE ALSO IN 14602.6 A-2 AND THEN THE REST OF THAT STATUTE YOU HAVE EXCEPTIONS THAT PRACTICALLY SWALLOW THE RULE. AND IF YOU HAD TO SUMMARIZE
ALL OF THAT BASICALLY WHAT IT SAYS, WELL, IF THERE IS A PERSON WHO CAN LAWFULLY TAKE POSSESSION OF THE VEHICLE AND THERE IS INSURANCE, AND IT CAN BE TAKEN IN A WAY THAT IS NOT LAWFUL, FOR EXAMPLE JUST GIVING THE VEHICLE BACK TO SOME UNLICENSED PERSON, WELL, POSSESSION HAS TO BE RESTORED, AND I DON'T THINK THERE IS ANYTHING IN SPECIAL ORDER 7 THAT IS INCONSISTENT WITH THAT. THE COURT: STARTS OFF WITH THE PRESUMPTION, FIRST
OF ALL, IT TAKES THE UNLICENSED SITUATION, BREAKS IT INTO
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TWO, TREATS THEM DIFFERENTLY AND HAS THE PRESUMPTION. YOU READ IT, IT DOESN'T SAY PRESUMPTION, BUT IT SAYS, STARTS OFF WITH SHALL NOT IMPOUND. SHIFTING THE BURDEN.
IF
SO IT STARTS OFF WITH
SHIFTING THE GAME WHICH, AS I SAID,
WE SHOULDN'T BE SURPRISED THERE IS A DECREASE IN THE NUMBER OF IMPOUNDS. IT DOESN'T SAY THAT, BUT IT DOES SAY SHALL
NOT IMPOUND OR SHALL RELEASE, I THINK IT'S SHALL RELEASE BUT IT'S -MR. SATO: THE COURT: MR. SATO: THE COURT: I'M SORRY. NO, PLEASE. I DON'T WANT TO INTERRUPT. NO, I'M THE ONE. I ASKED FOR YOUR
INPUT AND THEN I INTERRUPT YOU. MR. SATO: I WOULD BE WEARY ABOUT BASING STATUTORY
INTERPRETATION ON THE STATISTICS BECAUSE THE SUGGESTION IS THAT SAY FOR SOME REASON THE NUMBER OF ACTUAL DECISIONS TO IMPOUND THE VEHICLE INCREASED. I DON'T THINK THAT WOULD
HAVE ANY BEARING ON HOW THE COURT SHOULD INTERPRET WHETHER THERE IS AN ACTUAL CONFLICT OR WHETHER THERE IS AN APPLICATION OF THE COMMUNITY CARETAKING DOCTRINE. THE COURT: NO, I'M JUST CITING THIS AS BEING A
REAL WORLD ISSUE AND HAVING A REAL WORLD IMPACT THAT IS WHY WE'RE HERE. MR. SATO: I DID WANT TO POINT OUT THAT THOSE THEY
STATISTICS REFLECT THE DECISION TO IMPOUND AT ALL.
DON'T APPLY TO WHAT HAPPENS TO THE VEHICLE ONCE IT IS IMPOUNDED. BUSINESS. SO IT DOESN'T HAVE TO DO WITH THE 30-DAY I KNOW THERE WAS SOMETHING ELSE I WAS GOING TO
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ADD. THE COURT: YES, SIR. MR. KAUFMAN: JUST TO FOLLOW UP ON A COUPLE OF IF YOU THINK ABOUT IT RAISE YOUR HAND.
POINTS THE CITY ATTORNEY MADE. I THINK YOUR HONOR IS ABSOLUTELY CORRECT, SPECIAL ORDER 7 HAS REAL WORLD EFFECTS IN THE SAME WAY THAT ROLL CALL TRAINING AND OTHER INSTRUCTIONS AND POLICIES THAT L.A.P.D. PUTS OUT, HAS REAL WORLD EFFECTS ON OFFICERS' CONDUCT IN THE FIELD. THE QUESTION THOUGH IS WHETHER THOSE REAL WORLD EFFECTS ARE INCONSISTENT WITH THE TERMS OF THE VEHICLE CODE. THIS IS A PREEMPTION ISSUE IN TERMS OF WHETHER THERE
IS CONFLICT BETWEEN THE STATUTES PASSED AT THE STATE LEVEL AND SPECIAL ORDER 7. ALL THE PARTIES ARE IN AGREEMENT THAT
THE VEHICLE CODE PROVISIONS AT ISSUE HERE, 22651 AND 14602.6 ARE DISCRETIONARY. THEY NEVER MANDATE AN IMPOUND SO ALL THE L.A.P.D.
OR SEIZURE UNDER ANY CIRCUMSTANCES.
HAS DONE IS TAKEN THAT DISCRETIONARY AUTHORITY AND PROVIDED INSTRUCTIONS TO THEIR OFFICERS ON WHEN THEY SHOULD EMPLOY EITHER PROVISION ACCORDING TO UNIFORM STANDARDS. THEY ARE
OPERATING ENTIRELY WITHIN THE DISCRETION GIVEN UNDER THE VEHICLE CODE. PLAINTIFF STURGEON THEMSELVES ADMIT THAT EVERY SINGLE ACTION CALLED FOR BY SPECIAL ORDER 7 COULD BE UNDERTAKEN BY AN INDIVIDUAL OFFICER IN HIS OR HER OWN INDIVIDUAL CAPACITY. THERE IS NOTHING IN THE POLICY ITSELF GIVEN THAT
THE ACTIONS IT CALLS FOR THAT IS A CONFLICT.
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THE DEPARTMENT IS TRYING TO STANDARDIZE THE OFFICERS' CONDUCT ACROSS 10,000 UNIFORMED OFFICERS TO PROVIDE CONSISTENCY TO ENSURE ALL THE CONCERNS THAT ASSISTANT CHIEF MOORE MENTIONED IN HIS DECLARATION ABOUT CONSISTENCY AND CONCERNS FOR THE PUBLIC, VEHICLE CODE VIOLATIONS AND FEDERAL CONSTITUTIONAL VIOLATIONS SIMPLY A WAY FOR THE DEPARTMENT TO STANDARDIZE THAT DISCRETION ACCORDING TO DEPARTMENT STANDARDS. THE COURT: IF THEY ARE THE SAME, THEN WHY NOT JUST
LIVE WITH THE VEHICLE CODE SECTIONS AND NOT HAVE THE -- NOT HAVE SPECIAL ORDER 7 THAT IS AN ARGUMENT I ALSO DID NOT UNDERSTAND. IF YOU'RE TRYING TO SHOW THIS DOESN'T
CONTRADICT, MODIFY OR CHANGE THE STATE LAW, THEN WHY HAVE IT? WHY NOT JUST STICK WITH THE STATE LAW THEN? MR. KAUFMAN: BECAUSE THE STATE LAW, THE DISCRETION
GIVEN UNDER 14602 IS EXTREMELY BROAD AS IS THE DISCRETION GIVEN IN 2261. THE DEPARTMENT'S EXPERIENCE PRIOR TO
SPECIAL ORDER 7 WAS THAT WHEN THEY HAD INDIVIDUAL OFFICERS MAKING DECISIONS ON THEIR OWN, THERE WAS INCONSISTENT PRACTICES ACROSS DIFFERENT PRECINCTS. YOU HAD SOME
PRECINCTS IMPOUNDING CARS AUTOMATICALLY FOR 30 DAYS EVERY CIRCUMSTANCE WHERE THEY PULLED OVER AN UNLICENSED DRIVER. YOU HAD SOME DOING SOME MIX, BUT THERE WAS NO STANDARD POLICY AND THAT IS A PROBLEM FROM WITH THE DEPARTMENT'S PERSPECTIVE. PRACTICES. THE CHOICE HERE IS NOT BETWEEN UNIFORMITY ACROSS THE STATE AND SPECIAL ORDER 7. THE CHOICE IS WHETHER YOU THEY WANT TO HAVE SOME CONSISTENCY IN THEIR
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HAVE ONE POLICY WITHIN L.A. OR YOU HAVE 10,000 POLICIES WHERE EACH INDIVIDUAL OFFICER GOES OUT INTO THE FIELD AND APPLIES THE VEHICLE CODE ACCORDING TO THEIR OWN PERSONAL PREFERENCE. THE COURT: IF YOU ARE IN SACRAMENTO, ISN'T THE
ISSUE ARE WE GOING TO HAVE ONE POLICY THROUGHOUT THE STATE OR A DIFFERENT POLICY IN LOS ANGELES, VENTURA, SAN DIEGO, SAN BERNARDINO AND EVERY OTHER COUNTY IN CALIFORNIA. MR. KAUFMAN: THAT IS ALREADY THE CASE, YOUR,
HONOR, BECAUSE THE VEHICLE PROVISIONS PROVIDE SUCH BROAD DISCRETIONARY AUTHORITY YOU HAVE THAT. WITHOUT SPECIAL
ORDER 7 YOU HAVE THAT DISCREPANCY HAPPENING BLOCK TO BLOCK WITHIN YOUR CITY BECAUSE ONE OFFICER MAY IMPOUND A CAR FOR 30 DAYS AUTOMATICALLY AND ANOTHER ONE MAY CHOOSE NEVER TO IMPOUND THE CAR AT ALL FOR A LICENSED DRIVING VIOLATION. THE COURT: WHAT WOULD HAPPEN RATHER THAN BEING
PULLED OVER -- THE QUESTION I HAVE WHAT WOULD HAPPEN IN MARCH OF 2012 BEFORE THIS WENT INTO EFFECT AS OPPOSED TO MAY OF 2012. ANOTHER QUESTION WOULD BE, WHAT WOULD HAPPEN
TODAY IF WE HAD THE SAME SITUATION RATHER THAN BE IN THE CITY OF LOS ANGELES THEY DROVE UP THE COAST AND WERE IN VENTURA. IF UNIFORMITY IS A GOAL THEN SHOULDN'T UNIFORMITY COME FROM THE STATE OF CALIFORNIA. ISN'T THAT WHY THEY SAY
IN THE VEHICLE CODE IN THE ZACK CASE THAT THEY DON'T WANT THE LOCAL REGULATIONS THAT ADD TO, VARY, OR MODIFY THE STATE LAW. WHAT THEY WANT IS TO THE EXTENT POSSIBLE IN THE
STATE BASIS, NOT JUST PRECINCT BASIS, BUT THE STATE BASIS
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THEY WANT THE UNIFORMITY.
AREN'T WE DEFEATING THAT BY
HAVING EACH OF THE 50-SOME COUNTIES IN CALIFORNIA, I DON'T KNOW HOW MANY CITIES THERE ARE IN CALIFORNIA, HAVING THEIR OWN. MR. KAUFMAN: NOT AT ALL, YOUR HONOR. WE ALREADY
HAD THAT KIND OF INCONSISTENCY EXISTING BEFORE SPECIAL ORDER 7 WAS ADOPTED WITH DIFFERENT PRACTICES HAPPENING WITHIN THE CITY OF LOS ANGELES ITSELF BETWEEN INDIVIDUAL OFFICERS WHICH MAY DIFFER IN WHAT WAS HAPPENING IN SANTA BARBARA OR ANY OTHER CITY IN CALIFORNIA. THIS AT LEAST ENSURES SOME UNIFORMITY WITHIN THE CITY LOS ANGELES ITSELF. THE LEGISLATURE MADE ITS INTENT
CLEAR HERE BY PROVIDING THAT SECTION 14602 IS DISCRETIONARY. IF THEY WANTED CERTAIN ACTIONS TAKEN AS A
RULE, THEY WOULD HAVE MADE THAT MANDATORY AS THEY DID IN SECTION 14607.6 THE FORFEITURE PROVISION THAT YOUR, HONOR ALLUDED TO EARLIER. THERE ARE CERTAIN CIRCUMSTANCES WHERE
AN IMPOUNDMENT IS MANDATORY. THE LEGISLATURE HERE MADE A DIFFERENT DISTINCTION WHEN IT CAME TO 14602.6. THEY SAID WE'RE GOING TO ALLOW
LAW ENFORCEMENT TO DEVELOP THEIR OWN POLICIES, THEIR OWN INDIVIDUAL PRACTICES DEPENDING ON WHATEVER THEY THINK IS APPROPRIATE FOR THEIR JURISDICTION AND THEIR COMMUNITIES IN WHICH THEY WORK. THE COURT: WHY NOT TAKE THIS TO THE LEGISLATURE
AND SAY THROUGHOUT THE STATE OF CALIFORNIA, GOD KNOWS HOW MANY CITIES WE HAVE IN THE STATE OF CALIFORNIA, EVERY ONE IS GOING TO HAVE THEIR OWN DIFFERENT POLICIES THAT HAVE
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REAL WORLD EFFECTS.
RATHER THAN DRIVING FROM DOWNTOWN LOS
ANGELES TO SAN FRANCISCO AND PASSING THROUGH HOW MANY CITIES, EACH ONE HAS A DIFFERENT RULE, WHY NOT TAKE THESE ARGUMENTS TO SACRAMENTO AND SAY SPECIAL ORDER 7 IS SUCH A GREAT IDEA LET'S JUST MAKE IT PART OF THE VEHICLE CODE AND NOT HAVE THIS PROBLEM AND THEN IT WOULD BE A PUBLIC DEBATE; THEN WE WOULD HAVE A PUBLIC DEBATE ABOUT IT; LEGISLATORS WOULD ARGUE IT; IT WOULD BE IN THE PRESS; THERE WOULD BE EDITORIALS. GROUPS THAT ARE AFFECTED ONE WAY OR THE OTHER
WOULD CHIME IN, AND WE COULD GET SOME SORT OF STATE POLICY THAT WOULD BE UNIFORM. WE WOULDN'T HAVE THE PRECINCT BY
PRECINCT OR CITY BY CITY OR COUNTY BY COUNTY DIFFERENCE AND IT WOULD BE UNIFORM THROUGHOUT THE STATE AND WE WOULDN'T HAVE THESE ISSUES. MR. KAUFMAN: YOUR, HONOR, THIS IS THE DECISION THE
LEGISLATURE HAS ALREADY MADE BY MAKING SECTION -THE COURT: WHY NOT TAKE THIS TO THE LEGISLATURE IT SAYS MAY AND
AND SAY, LOOK YOU HAVE A HOLE IN THIS LAW. THAT IS TOO BROAD.
WE'RE HAVING TOO MANY DIFFERENT
DECISIONS BEING MADE THROUGHOUT THE STATE OF CALIFORNIA. TAKE THIS SPECIAL ORDER 7, THIS IS A TEMPLATE OR A PROPOSAL, AND TAKE IT TO THE LEGISLATURE. I AM A BIG BELIEVER IN DEMOCRACY AND PUBLIC DEBATE. I'M RELUCTANT TO HAVE JUDGES, WHO FOR ALL INTENTS AND PURPOSES, ARE UNELECTED MAKING THESE DECISIONS. MR. KAUFMAN: YOUR, HONOR, WE CERTAINLY UNDERSTAND
YOUR HONOR'S CONCERN THAT THIS IS IN SOME WAY POLICY MAKING, BUT IT'S REALLY NO DIFFERENT THAN L.A.P.D.'S
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APPROACH TO ITS INSTRUCTIONS AND GUIDANCE TO ITS OFFICERS ON NUMEROUS AREAS THAT TOUCH ON THE VEHICLE CODE. WE HAVE
PROVIDED A NUMBER OF EXAMPLES, OTHER L.A.P.D. POLICIES THAT WOULD BE NECESSARILY INVALIDATED IF YOUR HONOR ACCEPTS PLAINTIFFS BROAD READING OF SECTION 21. AND WE HAVE
PROVIDED A NUMBER OF OTHER JUST HYPOTHETICAL EXAMPLES I THINK THAT WOULD MAKE THIS ABUNDANTLY CLEAR. LET'S SAY ON NEW YEAR'S EVE CHIEF BECK ISSUES A DIRECTIVE SAYING THEY WANT ALL ITS OFFICERS TO FOCUS, PRIORITIZE ON DRUNK DRIVING VIOLATIONS AT THE EXPENSE OF OTHER VIOLATIONS. UNDER PLAINTIFFS VIEW OF SECTION 21 THAT
DIRECTIVE WOULD BE UNLAWFUL BECAUSE IT'S PUTTING CONDITIONS. CODE ITSELF. ANOTHER EXAMPLE, YOUR, HONOR, SECTION 40303 IN THE VEHICLE CODE PROVIDES LAW ENFORCEMENT THE DISCRETION TO EITHER CITE AND RELEASE A DRIVER FOR CERTAIN ENUMERATED OFFENSES OR TO EFFECT A CUSTODIAL ARREST. ON PLAINTIFFS PRIORITIZATION DOESN'T EXIST IN THE VEHICLE
VIEW OF SECTION 21, CHIEF BECK CAN'T ISSUE A POLICY ON WHEN HE WANTS HIS OFFICERS TO BE MAKING CUSTODIAL ARRESTS FOR CERTAIN AND ANY SORTS OF VIOLATIONS THAT WOULD FALL UNDER 4303. THESE ARE BASIC AND FUNDAMENTAL POLICY-MAKING ROLES THAT THE CHIEF FULFILLS AS THE EXECUTIVE OF THE L.A.P.D. AND IF YOUR HONOR ACCEPTS PLAINTIFFS VIEW OF SECTION 21, IT WOULD BE STRIPPED OVER ANY ABILITY TO REGULATE, SUPERVISE, INSTRUCT, DIRECT HIS OFFICERS' CONDUCT ON MATTERS COVERED BY THE VEHICLE CODE.
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THIS IS A BREATHTAKING BROAD VIEW OF SECTION 21. REAL REVOLUTION IN HOW TO STRUCTURE LAW ENFORCEMENT IN CALIFORNIA.
YOU HAVE UNDER PLAINTIFFS VIEW SECTION 21 ALL
THE AUTHORITY, ALL THE POWER UNDER THE VEHICLE CODE RESIDES IN THE INDIVIDUAL OFFICERS, THE LOWEST LEVEL OF INDIVIDUAL OFFICERS, WHO CAN HAUL THEIR BOSSES INTO COURT ANY TIME THEY DISAGREE WITH ANY INSTRUCTIONS THEIR BOSSES GIVE THEM ABOUT HOW THEY WANT THEM TO IMPLEMENT THE DISCRETIONARY PROVISIONS OF THE VEHICLE CODE. THE COURT: FROM THEIR POINT OF VIEW THEY ARE SWORN
TO UPHOLD THE LAWS OF THE STATE OF CALIFORNIA AND THE LAW SAYS ONE THING AND SPECIAL ORDER 7 SAYS SOMETHING ELSE. AND THAT PUTS THEM IN THIS QUANDARY ABOUT DO THEY VIOLATE POTENTIALLY THE STATE LAW OR DO THEY VIOLATE THE ORDERS OF THE L.A.P.D. LIABILITY. THEY SAY THAT SUBJECTS THEM TO CIVIL
I DON'T KNOW, THE CHP CASE I CITED SAID NO AT
LEAST UNDER THOSE FACTS, BUT I CAN SEE POTENTIALLY WHERE THAT CONFLICT COULD COME UP. BUT EVEN IF A CONFLICT DOESN'T COME UP THEY ARE SWORN TO UPHOLD THE LAW IN THE STATE OF CALIFORNIA AND HERE YOU CAN READ SPECIAL ORDER 7 AND IT IS DIFFERENT AND IT HAS REAL WORLD EFFECTS. WHAT DO THEY DO? WHAT DO YOU THEY
TELL THE OFFICER TO DO? MR. KAUFMAN: YOUR, HONOR, LET'S SAY L.A.P.D.
PASSED A POLICY THAT SAID WE MANDATE YOU USE 14602 EVERY CIRCUMSTANCE; THEY WANT 30-DAY IMPOUNDS AS A RULE. THAT
POLICY ALSO WOULD BE UNLAWFUL BECAUSE IT'S INSTRUCTING THEIR OFFICERS ON HOW TO IMPLEMENT DISCRETION WITH 14602.
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THIS WORKS BOTH WAYS AND IT'S GOING TO ELIMINATE NOT ONLY POLICIES ON SECTION 14602, BUT BROADLY ANY POLICIES UNDER THE VEHICLE CODE THE L.A.P.D. CURRENTLY HAS. AND IF THIS
RULE WAS ADOPTED STATEWIDE IT WOULD ELIMINATE LAW ENFORCEMENT AGENCIES' AUTHORITY TO ADOPT ANY POLICIES WHATSOEVER THAT TOUCH ON THE VEHICLE CODE. THE COURT: I DON'T THINK IT'S THAT DRACONIAN. I
L.A.P.D. IS FAMOUS FOR ITS EXCELLENT TRAINING AS I SAID.
USED TO ACTUALLY DO CIVIL RIGHTS LITIGATION AT ONE POINT IN ONE OF MY PRIOR LIVES. L.A.P.D. IS A TRENDSETTER WHEN IT I DON'T SEE
COMES TO OUTSTANDING EDUCATION AND TRAINING. IT AS THAT DRACONIAN.
I CAN SEE THEM DRAFTING A SPECIAL
ORDER 7 IN A WAY THAT DIDN'T SPLIT OUT DIFFERENT CATEGORIES OF UNLICENSED DRIVERS, FOR EXAMPLE, DIDN'T START OFF WITH THE PRESUMPTION OF DO NOT IMPOUND. I COULD SEE THEM
WRITING ONE THAT WOULD COMPORT MORE CLOSELY WITH EXISTING STATE LAW AND, NO, I'M NOT GOING TO DO THAT HERE THAT IS NOT MY EXPERTISE. I DON'T THINK IT'S THAT DRACONIAN. YOUR, HONOR, I THINK RESPECTIVELY
MR. KAUFMAN:
PLAINTIFFS THEMSELVES WOULD DISAGREE WITH THAT UNLESS THE TERMS OF THE SPECIAL ORDER ARE IDENTICAL TO THE VEHICLE CODE THEMSELVES, L.A.P.D. CANNOT HAVE A POLICY ON IT BECAUSE IT WOULD THEN BE INSTRUCTING OR DIRECTING THEIR OFFICERS IN WHATEVER TINY DIFFERENCES DIFFERENT THAT THE TERMS OF THE VEHICLE CODE ITSELF THAT WOULD BE UNLAWFUL. THE COURT: DEPENDS ON WHAT THE DIFFERENCE IS. NOW WE'RE TRULY SPECULATING BUT I DON'T SEE THIS
OKAY, I'D HAVE TO SEE IT.
ABOUT WHAT COULD BE OR WHAT MIGHT BE.
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AS BEING THAT DRACONIAN.
IF I RULE FOR THE PLAINTIFFS IN
THIS CASE THEN IT'S UPHELD IN THE APPELLATE COURT THAT SOMEHOW THE L.A.P.D. WILL BE HANDCUFFED AND UNABLE TO HAVE TRAINING OF THEIR OFFICERS, I JUST DON'T SEE THAT. MR. KAUFMAN: CERTAINLY IF THE TRAINING IS OFFERED
AND THEN THE OFFICERS ARE EXPECTED TO CONFORM THEIR CONDUCT TO MANDATE IN THE WAY THAT SPECIAL ORDER 7 IS WRITTEN THERE IS THE EXPECTATION THAT L.A.P.D. OFFICERS -- YES ALL OF THOSE TRAININGS WILL BE UNLAWFUL TOO. PLAINTIFFS HAVE OFFERED NO LIMITING PRINCIPLE AS TO WHY THEIR INTERPRETATION OF SECTION 21 WOULDN'T APPLY TO ALL L.A.P.D. POLICIES THAT TOUCH ON MATTERS COVERED BY THE VEHICLE CODE; IT IS THAT BREATHTAKING. THE COURT: LET'S ASK. POLICE PROTECTIVE LEAGUE,
ARE YOU HANDCUFFING THE L.A.P.D. FROM DOING LEGITIMATE FUNCTIONS AS TO TRAINING AND GIVING GUIDANCE TO THEIR OFFICERS? MR. LEVINE: ABSOLUTELY NOT, YOUR HONOR. THE
PROBLEM WITH SPECIAL ORDER NO. 7 IS THAT IT REMOVED THE DISCRETION VESTED TO THE OFFICERS THAT WAS SPECIALLY VESTED UNDER THE VEHICLE CODE AND MANDATED AN OUTCOME AND DEPRIVED THEM OF THE DISCRETIONARY RIGHT. WE'RE NOT SAYING THE LOS ANGELES POLICE DEPARTMENT CANNOT PROMULGATE SPECIAL ORDERS THEY DO THAT ALL THE TIME. THE PROBLEM WITH THIS CASE IS, ON ITS FACE, THE SPECIAL ORDER CONFLICTED WITH THE TERMS AND CONDITIONS OF VEHICLE CODE SECTION 14602.6. ONCE REMOVED THE DISCRETION AND
MANDATED THAT THERE SHOULDN'T BE ANY IMPOUNDS WITH RESPECT
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TO DRIVERS DRIVING ON REVOKED OR SUSPENDED LICENSE OR HAVING NOT EVER BEEN ISSUED A LICENSE, THE SPECIAL ORDER REALLY CONFLICTED WITH THE LEGISLATIVE PURPOSE THAT WAS SET FORTH IN THE REQUEST FOR JUDICIAL NOTICE 14602.6. THE COURT: MR. LEVINE: RIGHT. THE LEGISLATURE EXPANDED, WANTED TO
EXPAND, THE AUTHORITY OF POLICE OFFICERS TO IMPOUND UNDER -THE COURT: MR. LEVINE: RIGHT. -- UNDER THAT SECTION BECAUSE THE
PRIOR CONDITION WAS THERE BE NO IMPOUNDS IF THERE WAS A LICENSED PASSENGER IN THE CAR. WHAT SPECIAL ORDER 7 WOULD
DO IS, EVEN IF THERE WAS A LICENSED DRIVER AVAILABLE YOU STILL CANNOT IMPOUND. AND THAT IS ABSOLUTELY CONTRADICTORY
WITH WHAT THE EXPRESS LEGISLATIVE PURPOSE WAS WITH 14602.6. AS THE COURT INDICATED IF EVERY JURISDICTION IMPLEMENTED SPECIAL ORDER 7, THERE WOULD BASICALLY BE A REPEAL BY MUNICIPAL FIAT OF THE STATE LEGISLATIVE MANDATES. AND IN CONTRAST TO WHAT THE CITY ATTORNEY INDICATED, I DON'T BELIEVE YOU CAN REASONABLY LOOK AT SPECIAL ORDER 7 AND BELIEVE IT'S JUST GUIDANCE, IT'S MANDATORY. THE COURT: MR. SATO: IT DOES SAY, SHALL REFER TO 22651. I THINK IT SAID DISCIPLINARY. SUBSECTIONS II, A AND C WHICH BREAK
MR. LEVINE:
OFF THE DIFFERENCE BETWEEN REVOKED AND SUSPENDED LICENSE AND DRIVERS WHO HAVE NEVER BEEN ISSUED A LICENSE BOTH COUCH THE LANGUAGE AS SHALL RELEASE IN LIEU OF IMPOUND. WE THINK
THAT IS CONTRARY TO THE STATE LEGISLATIVE OBJECTIVE OF
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14602.6 CONTRARY TO THE STATED LEGISLATIVE PURPOSE SET FORTH IN 14607.4 THAT YOUR HONOR REFERRED TO. AND EVEN IF,
EVEN IF, YOU'RE GOING TO APPLY THE COMMUNITY CARETAKING DOCTRINE TO 14602.6, THAT WOULD ELIMINATE DISCRETIONARY ABILITY OF THE OFFICER TO LOOK AT ALL THE CONDITIONS IN THE FIELD AND DECIDE WHETHER OR NOT IMPOUND IS APPROPRIATE. SO
THE COMMUNITY CARETAKING DISCRETIONARY ABILITY WOULD EVEN BE UNDERMINED. SO FOR ALL THE REASONS THE COURT SET FORTH IN ITS TENTATIVE RULING, WE BELIEVE THE COURT'S CONCLUSIONS ARE CORRECT AND THIS CERTAINLY IS A CONFLICT. SPECIAL ORDER 7
CERTAINLY IS A CONFLICT WITH THE STATE VEHICLE CODE. THANK YOU. THE COURT: WITH COUNSEL. MR. KAUFMAN: YOUR HONOR, A COUPLE OF POINTS. I DOES THAT SATISFY? I TEND TO AGREE
THINK THIS IS CLARIFYING ONE THING CLEAR ABOUT PLAINTIFFS POSITION HERE. THEIR ARGUMENT IS PREMISED ON THE PROBLEM
AS THEY SEE IT IS THAT SPECIAL ORDER 7 REMOVES THE DISCRETION OF INDIVIDUAL OFFICERS WHICH THEY BELIEVE THE VEHICLE CODE SOLELY VESTED WITHIN IT THE INDIVIDUAL OFFICERS AT THE EXPENSE OF THEIR SUPERIORS. THIS CASE IS FUNDAMENTALLY A QUESTION ABOUT WHO GETS TO DECIDE HOW IMPORTANT DECISIONS ABOUT IMPOUNDING WILL BE MADE IN LOS ANGELES. PLAINTIFFS BELIEVE THAT THE
DISCRETION GIVEN IN THE VEHICLE CODE IS VESTED SOLELY WITH INDIVIDUAL OFFICERS WHILE DEFENDANTS BELIEVE THAT LAW ENFORCEMENT AGENCIES RETAIN THEIR TRADITIONAL AND VERY
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BASIC AUTHORITY TO REGULATE HOW THEIR OFFICERS ARE GOING TO CONDUCT THEMSELVES IN THE FIELD. THIS IS REALLY AN
EXTRAORDINARY VIEW OF SPECIAL ORDER 7. THE COURT: WITH THAT. SORRY TO INTERRUPT YOU, BUT I DISAGREE
YES, 14602 SAYS, MAY, AND IT'S WHOLLY
DISCRETIONARY AND IT DOESN'T LIST ANY CONDITIONS ON HOW TO APPLY THAT. THAT IS WHAT THE COURT SAID IN THE CHP CASE
WHICH IS WHY IT WAS NOT A VIOLATION OF A MANDATORY DUTY. I DON'T SEE THIS DRACONIAN SPLIT. I CAN EASILY SEE
HOW A GOVERNMENT AGENCY, A D.A.'S OFFICE, CITY ATTORNEY'S OFFICE, OR L.A.P.D. OR OTHER AGENCIES CAN ISSUE TRAINING AND GUIDANCE TO THE OFFICERS THAT DOESN'T MATERIALLY CHANGE THE APPLICATION OF VARIOUS LAWS. I JUST DON'T SEE THIS AS
BEING A CHOICE BETWEEN OFFICERS RUNNING RAMPANT IN THE FIELD DOING THEIR OWN THING AND THE TOP BRASS REGULATING WHAT AND HOW AND WHEN THEY DO IT. DRACONIAN SPLIT. I JUST DON'T SEE THIS
I CAN EASILY SEE THERE COULD BE, YOU
COULD HAVE SOME GUIDANCE AND TRAINING THAT WOULD BE OFFEND THE PREEMPTION DOCUMENT. MR. KAUFMAN: RESPECTFULLY, YOUR, HONOR, I THINK
THE DEPARTMENT'S EXPERIENCE PRIOR TO SPECIAL ORDER 7 BEARS OUT PRECISELY THOSE CONCERNS WHERE WE HAVE HAD INDIVIDUAL OFFICERS DISCRETION AND GET WIDELY INCONSISTENT RESULTS AROUND THE DEPARTMENT. WE'VE HAD OFFICERS REPORTING THEY
ARE CONFUSED ABOUT WHAT THEIR OBLIGATIONS WERE UNDER THE VEHICLE CODE. THE COURT: ALL THE CITY OF LOS ANGELES HAS DONE
HERE IS MADE A PROBLEM THAT YOU'RE SAYING WAS ON A PRECINCT
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LEVEL NOT MADE ON A STATE LEVEL.
NOW EVERY CITY IN THE AND I AGREE WITH EVERY EVIL THAT
STATE IS GOING TO HAVE THEIR OWN POLICY.
THE PLAINTIFF, AGAIN, IT'S REPEAL BY FIAT.
YOU'RE TALKING ABOUT NOW IS GOING TO BE MAGNIFIED ON A STATE BASIS, CITY BY CITY, WHICH IS WHY SACRAMENTO HAS TO DO THIS. MR. KAUFMAN: YOUR, HONOR, THE NOTION THIS IS A AS YOUR, HONOR, MENTIONED
REPEAL BY FIAT, YOUR HONOR.
THERE IS A DIFFERENCE BETWEEN WHAT IS IN SPECIAL ORDER 7 AND THE VEHICLE CODE, BUT THAT DIFFERENCE DOESN'T MEAN THERE IS A CONFLICT. THAT IS THE QUESTION, WHETHER THERE
IS A CONFLICT BETWEEN SPECIAL ORDER 7 AND WHAT PROVIDES IN THE VEHICLE CODE. I INVITE PLAINTIFFS TO POINT TO ANYTHING THAT SPECIAL ORDER 7 REQUIRES, ANYTHING IT REQUIRES, THAT IS IN CONFLICT WITH WHAT THE VEHICLE CODE PROVIDES. THAT IS,
COULD AN OFFICER IN HIS OR HER OWN INDIVIDUAL DISCRETION DECIDE OUT IN THE FIELD I'M GOING TO DO THIS ACCORDING TO INTERNALLY, I'M GOING TO INTERNALLY DO WHAT SPECIAL ORDER 7 DOES AND NOW IT SOMEHOW VIOLATES THE VEHICLE CODE AND THAT IS CERTAINLY NOT THE CASE, YOUR, HONOR. MR. SATO: THE COURT: MR. SATO: IF I CAN REPLY -HE ASKED A QUESTION OF THE PLAINTIFF. OKAY. THIS WON'T TAKE LONG.
JUST TO THE POINT, AGAIN, THE FACE OF SPECIAL ORDER 7 SAYS THAT THE COMMUNITY CARETAKING DOCTRINE RESIDES WITH THE OFFICER CONSIDERING THE TOTALITY OF THE CIRCUMSTANCES THAT IS JUST THE CORRECT RESTATEMENT OF WHAT
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THE COMMUNITY CARETAKING DOCTRINE IS. AND BECAUSE WE'RE TALKING ABOUT AN AREA THIS IMPLICATES A CONSTITUTIONAL RIGHT THAT IS A RIGHT TO POSSESSION OF A VEHICLE, BECAUSE WE'RE TALKING ABOUT A CONSTITUTIONAL RIGHT, THE CITY IS IN A POSITION WHERE IT HAS TO HAVE GUIDELINES. I THINK FIRST AS A BASIC TENET OF
LABOR LAW AND PROCEDURAL DUE PROCESS YOU WANT YOUR EMPLOYER TO MAKE AS CLEAR IS IT CAN WHAT IS PROHIBITED AND WHAT IS ALLOWED. SO I THINK GUIDELINES ARE ALLOWED FROM THAT
PERSPECTIVE. THE COURT: MR. SATO: GENERICALLY I DON'T DISAGREE WITH YOU. I THINK WE DISCUSSED IN YOUR BELIEFS THE
CASE LAW THAT SAYS IF YOU HAVE A MUNICIPALITY THAT DOESN'T HAVE GUIDELINES OR DOESN'T TRAIN OR HAVE THESE KINDS OF RULES REGARDING SITUATIONS WHERE THE CONSTITUTIONAL RIGHTS OF CITIZENS AND THIRD PARTIES ARE GOING TO BE IMPLICATED, THAT MAKES BOTH THE CITY AND THE OFFICER MORE VULNERABLE NOT LESS VULNERABLE TO CIVIL LIABILITY. REGARDING THE LEGISLATURE, THE COMMUNITY CARE DOCTRINE IS A CONSTITUTIONAL, ITS SOURCE IS THE FOURTH AMENDMENT. ITS CREATION IS JUDGE MADE. IT MAY BE THAT THE
STATE LEGISLATURE COULD BE PERSUADED TO ADDRESS SOME OTHER STEREOTYPICAL SITUATIONS WHERE A PROCEDURE ISSUE WOULD COME UP. BUT THIS IS STILL SOMETHING THAT I THINK HAS TO BE AND THAT IS WHY I
PLAYED OUT ON A CASE-BY-CASE BASIS.
THINK THE FACIAL CHALLENGE THAT IS BEING MOUNTED ON SPECIAL ORDER 7 IN THIS CASE IS UNWARRANTED. THE COURT: I DON'T UNDERSTAND YOU WERE TALKING
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ABOUT A HIGHER STANDARD AND THE CONSTITUTIONAL CHALLENGE THAT IS NOT WHAT I READ. ISSUE. ISN'T. THIS IS A STANDARD PREEMPTION
IT'S A STANDARD PREEMPTION EITHER IT IS OR IT I DON'T SEE THIS ANYMORE CONSTITUTIONALLY COMPLEX
THAN THAT. MR. SATO: THE WAY WE CONCEPTUALIZE IT BECAUSE
WE'RE TALKING ABOUT A CONSTITUTIONAL ISSUE, THE PROHIBITION AGAINST UNREASONABLE SEARCHES OR UNREASONABLE WARRANTLESS SEARCHES. CONCEPTUALLY SPECIAL ORDER 7 IS NOT DIFFERENT
THAN OTHER POLICE GUIDELINES, DISCIPLINARY RULES AND SO ON CAN ADDRESS OTHER SITUATIONS WHERE THE CONSTITUTIONAL RIGHT OF PERSONS ARE IMPLICATED AN EXCESSIVE FORCE POLICY FOR EXAMPLE, THOSE KINDS OF THINGS. AND WHETHER THERE IS A
CONFLICT WITH THE VEHICLE CODE, THE COMMUNITY CARETAKING DOCTRINE, I THINK THE CASES SAY, I URGE THE COURT TO TAKE ANOTHER LOOK AT THE TORRES AND WILLIAMS CASES THAT WE HAVE CITED COMMUNITY CARETAKING TRUMPS THE VEHICLE CODE. AND ONE OTHER POINT I WANTED TO MAKE, AGAIN REGARDING WHETHER IT'S THE OFFICER WHO IS GOING TO HAVE COMPLETE DISCRETION. ALTHOUGH 14602 A-1 OR I'M GETTING
MIXED UP, THE PARTS REGARDING THE DECISION TO IMPOUND, REFERS TO WHAT THE OFFICER CAN DO. ALL THE REST OF IT
REGARDING HOW THE VEHICLE -- HOW LONG THE VEHICLE SHOULD BE STORED, WHEN IT SHALL BE RELEASED AND SO ON, DESCRIBES THE DUTIES OF QUOTE ISSUING AGENCY, CLOSED QUOTE. I THINK THE
CITY HAS THE RIGHT TO MAKE REGULATIONS HOW ITS OWN DUTIES UNDER THE CODE ARE GOING TO BE PUT INTO EFFECT. THE COURT: JUST AS A BROAD BRUSH, I DON'T
32
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DISAGREE, BUT DEPENDS HOW IT'S DONE. STURGEON, YOU WERE CHALLENGED HERE A MINUTE AGO BY INTERVENOR. MR. ORFANEDES: JUST A COUPLE OF POINTS, YOUR,
HONOR, I THINK WE HAVE BEATEN SOME OF THE PREEMPTION ISSUES TO DEATH. THE COURT HAS NOT YET RULED ON OUR REQUEST FOR JUDICIAL NOTICE. THE COURT: GRANTED. THANK YOU, VERY MUCH, YOUR HONOR.
MR. ORFANEDES:
WE HAD ALSO MADE A SUBSIDIARY ARGUMENT THAT SPECIAL ORDER 7 CONFLICTS WITH 14607.6 WHICH IS THE MANDATORY 30-DAY IMPOUND PROVISION THAT APPLIES IN VERY LIMITED CIRCUMSTANCES. OUR REVIEW OF THE SPECIAL ORDER IS THAT IT IT DOES NOTE THAT CERTAIN
BASICALLY ELIMINATES THAT.
IMPOUNDS AFFECTED UNDER 14602 SHOULD INCLUDE AN ANNOTATION THAT A VEHICLE IS ELIGIBLE FOR FORFEITURE UNDER 14627.6, BUT THE IMPOUND IS STILL BEING EFFECTED UNDER THE MORE LENIENT 14602 PROVISION. THE COURT: OF COURSE. IN OUR VIEW THAT DOESN'T ANSWER
MR. ORFANEDES: THAT.
SPECIAL ORDER 7 PRACTICALLY ELIMINATES 14607, AND WE
HAVEN'T TALKED ABOUT THAT. THE COURT: I AGREE. OBVIOUSLY IT DOES --
MR. ORFANEDES: THE COURT: ARE HERE. MR. ORFANEDES:
JUST A FEW --
-- THAT IS ONE OF THE REASONS WHY WE
A FEW OTHER THINGS I WANTED TO
33
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NOTE.
THERE HAS BEEN SOME DISCUSSION ABOUT UNIFORMITY OR ONE OF THE THINGS I THINK IS SO
LACK OF UNIFORMITY.
IMPORTANT ABOUT THE TWO STATUTES, 14602 AND 14607, IS THEY CREATE A UNIFORMITY OF DETERRENT EFFECT ACROSS THE STATE. IF YOU HAVE MUNICIPALITIES DECIDING THEY ARE GOING ON THEIR OWN WAY ON WHETHER OR NOT THEY ARE GOING TO ENFORCE THE ISSUES, THE STATUTES, YOU'RE GOING TO DESTROY, YOU HAVE DESTROYED THE UNIFORMITY OF THE DETERRENTS THAT THE LEGISLATURE INTENDED TO HAVE. POINT TO NOTE. FINALLY ON THE PREEMPTION FOURTH AMENDMENT ISSUE, WHETHER OR NOT THE STATUTE IS PREEMPTED DOESN'T AFFECT ANY SORT OF FOURTH AMENDMENT CONSIDERATION. PREEMPTED OR IT'S NOT. ARIZONA LAWSUIT. IT'S EITHER I THINK THAT IS AN IMPORTANT
ACLU POINTED TO THE U.S. VERSUS
IN THAT CASE THE SUPREME COURT FOUND THE IT WAS PREEMPTED.
ARIZONA STATUTE WAS UNCONSTITUTIONAL.
THE ANALYSIS WASN'T WHETHER OR NOT ARIZONA HAD A GOOD REASON FOR WHY OR A PUBLIC POLICY REASON FOR WHY IT WAS PREEMPTED, IT WAS JUST PREEMPTED. THE COURT: RIGHT. FINALLY THE CITY'S COMMUNITY
MR. ORFANEDES:
CARETAKING DOCTRINE APPLICATION 14606.6 IS SITUATIONAL DEFENSE. THEY WON A CASE EARLIER THIS YEAR CLAIMING THERE
WAS NO FOURTH AMENDMENT VIOLATION AND AN APPLICATION 14602 WE CITED THAT IN OUR BRIEFS, MIRANDA VERSUS BONNER. IN
THAT SITUATION EARLIER, MARCH OF THIS YEAR, THEY WERE DEFENDING IT SAYING THERE WAS NO COMMUNITY CARETAKING DOCTRINE. THE ISSUE THERE, TODAY THEY ARE SAYING SOMETHING
34
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ELSE. THE COURT: OKAY. BRIEFLY I'M IN TRIAL.
MR. KAUFMAN:
I UNDERSTAND, YOUR HONOR, WE INVITED
PLAINTIFFS TO SHOW ANY ACTUAL CONFLICT BETWEEN WHAT SPECIAL ORDER 7 CALLS FOR AND THE VEHICLE CODE AND THEY CANNOT POINT TO A SINGLE EXHIBIT. WHOLE CASE, YOUR, HONOR. I THINK THAT IS PRETTY MUCH THE
THERE IS NO CONFLICT WITH WHAT
SPECIAL ORDER 7 REQUIRES AND WHAT THE STATE'S -THE COURT: ACADEMIC EXERCISE. THEN WHY ARE WE HERE? THEN THIS IS AN
OBVIOUSLY THERE IS A DIFFERENCE THAT IS
WHY WE HAVE A LAWSUIT. MR. KAUFMAN: BUT A DIFFERENCE DOESN'T MEAN A SIMPLY BECAUSE THERE ARE ADDITIONAL
CONFLICT, YOUR, HONOR.
GUIDELINES OR REGULATIONS, WHATEVER TERM WE WANT TO GIVE IT, TO INSTRUCT OFFICERS ON HOW THEY SHOULD EXERCISE THEIR VERY BROAD DISCRETION GIVEN UNDER 14602 DOESN'T MEAN THERE IS A CONFLICT BETWEEN THE PROVISION. THIS IS A VERY COMMON LAW ENFORCEMENT POLICY IN THE SENSE WE HAVE BROAD AUTHORITY GIVEN TO LAW ENFORCEMENT AGENCIES, AND THEY NEED TO INSTRUCT THEIR OFFICERS ON HOW TO EXERCISE THAT ACCORDING TO UNIFORM STANDARDS. THE COURT: AS I SAID, THIS IS A REAL WORLD ISSUE AND I'M NOT SAYING IT COULD BE A GOOD
THAT HAS MADE A REAL WORLD DIFFERENCE. I'M NOT SAYING IT'S A BAD DIFFERENCE.
DIFFERENCE FROM A PUBLIC POLICY STANDPOINT; IT IS JUST FACT. IT'S A PUBLIC POLICY ISSUE. SO THE APPROPRIATE BODY
TO HEAR THIS IS THE LEGISLATURE. I HAVE TO MOVE ON. ONE LAST WORD? YOU ARE
35
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WINNING, SO YOU SHOULDN'T HAVE THE LAST WORD. MR. LEVINE: MR. SATO: WE'LL SUBMIT.
GOING BACK TO SOMETHING YOUR HONOR SAID
AT THE VERY BEGINNING OF OUR MEETING, IT'S NOT THE CITY'S POSITION THAT SOMEHOW 14602 THAT SERIES OF STATUTES IS ON IT'S FACE UNCONSTITUTIONAL THAT IS NOT THE CITY'S ARGUMENT. THE COURT: WELL DONE. ALL RIGHT. LOOK. THIS HAS BEEN VERY
I APPLAUD ALL THE PARTIES FOR THE EXCELLENT BUT I'M GOING TO GRANT BOTH
WORK WRITTEN AND ORAL.
PLAINTIFFS SUMMARY ADJUDICATIONS, SUMMARY JUDGMENTS, AND DENY THE TWO OTHER SUMMARY JUDGMENT MOTIONS. OKAY. SO WE HAVE AN EXCELLENT RECORD HERE. I WISH
ALL OF YOU, I ASSUME THERE IS GOING TO BE A NEXT STEP AND I WISH ALL OF YOU GOOD LUCK IN THE NEXT STEP. MR. LEVINE: MR. SATO: THANK YOU, YOUR HONOR.
I KNOW YOUR HONOR'S RULING TODAY DOESN'T
GO TO REMEDY OR MAYBE IT DOES, BUT I JUST DIDN'T HEAR IT. WE WOULD ASK TO STAY ANY REMEDY THAT YOUR HONOR WAS CONTEMPLATING IF THAT WAS PART OF YOUR HONOR'S RULING. THE COURT: NO. THIS WAS A DECLARATORY RELIEF AND TO NOW
INJUNCTIONS, SUMMARY ADJUDICATION, SUMMARY JUDGMENT. THE EXTENT THERE IS AN INJUNCTION, I'M GRANTING THAT. YOU WANT A STAY.
I DON'T KNOW, HOW DO YOU FEEL ABOUT THAT,
YOU WANT A STAY TO APPEAL, RIGHT? MR. SATO: THE COURT: YES. WHAT IS WRONG WITH THAT? FIRST OF ALL, DEFENDANTS HAVE A THEY HAVE TO
MR. ORFANEDES:
VERY HEAVY BURDEN ON STAYS PENDING APPEAL.
36
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MAKE A SHOWING OF SUBSTANTIAL HARM. SHOWING WHATSOEVER.
THERE HAS BEEN NO
MAYBE THEY WANT AN OPPORTUNITY TO TRY
AND SHOW THAT, BUT WE CERTAINLY HAVEN'T HEARD ANYTHING HERE AS TO WHY THIS IS GOING TO CAUSE SUBSTANTIAL HARM. WHAT WE'RE EFFECTIVELY DOING IS RETURNING TO THE STATUS QUO PRE-APRIL, 2012. I DON'T KNOW WHY THERE IS SOME
URGENT NEED TO FIX WHAT WAS BROKEN BACK IN APRIL, 2012, AND NOW THE COURT SHOULD STAY ITS RULING. THE COURT: THEY HAVE A POINT OF VIEW, AND IT'S THE
OPINION OF THE LOS ANGELES POLICE DEPARTMENT TOP PEOPLE WITH WHOM I RESPECT, IT'S THEIR OPINION, I DON'T AGREE WITH THEM, BUT THEIR OPINION IS THIS IS NECESSARY AND MEANINGFUL TO THE OPERATION OF THEIR DEPARTMENT. I'M INCLINED TO
GRANT THE STAY PENDING APPEAL JUST SO WE CAN HAVE IT HEARD BY AN APPELLATE COURT, AND I'M CONFIDENT I'M RIGHT, BUT JUST AS JURIES HAVE TOLD ME OTHERWISE, SO HAS THE COURT OF APPEAL. MR. LEVINE: YOUR HONOR, MAY I BE HEARD ON THAT.
TO THE EXTENT JUDGMENT HASN'T EVEN BEEN ENTERED IN THIS CASE YET. THE COURT: MR. LEVINE: THAT'S ANOTHER POINT, YES. PERHAPS THIS MATTER CAN BE BRIEFED IN
TERMS OF THE CITY OR THE INTERVENORS MOTION FOR A STAY. THERE IS GOING TO BE NO CHANGE IN WHAT IS NOW THE STATUS QUO UNTIL JUDGMENT IS ENTERED, AND IT WOULD GIVE OUR CLIENTS AN OPPORTUNITY TO CONSIDER THE STAY REQUEST. THE COURT: I AM NOT HOSTILE TO A STAY AT ALL FOR BUT I THINK THE PLAINTIFFS
ALL THE REASONS YOU'RE SAYING.
37
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SHOULD HAVE A CHANCE TO BRIEF THIS.
AND THERE IS
ESSENTIALLY NO CHANGE UNTIL WE HAVE AN ORDER. SO LETS WAIT FOR THE ORDER. IF YOU FOLKS WANT TO
BRIEF A STAY OR NOT, I'M TELLING YOU I'M INCLINED TO GRANT A STAY AND UNDER THESE FACTS. A LOT OF TIMES PEOPLE ASK ME
FOR A STAY AND I SAY NO, IF THE COURT OF APPEAL WANTS A STAY THEY CAN DO IT. MIGHT BE A GOOD IDEA. I THINK IN THIS SORT OF A CASE IT I'LL ABSOLUTELY WAIT TO HEAR OR READ
WHAT THE PARTIES HAVE TO SAY ON THAT ISSUE. MR. LEVINE: MR. SATO: THE COURT: THANK YOU, YOUR HONOR.
THANK YOU, YOUR HONOR. THANK YOU, GOOD WORK.
(END OF PROCEEDING.)

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THE COURT: MR. LEVINE:

GOOD MORNING. GOOD MORNING YOUR, HONOR, RICHARD

BUSINESS IS I HAVE A COUPLE OF MEDIA REQUESTS.

COALITION OF COURT REPORTERS OF LOS ANGELES 213.471.2966 WWW.CCROLA.COM

AND MY PEOPLE ARE SCRAMBLING TO FAX YOU PAPERWORK.

UNIDENTIFIED PERSON: MR. SATO: THE COURT: YES.

NO, OBJECTION. DO YOU WANT A MINUTE? THE ANSWER IS

DO YOU WANT SOME TIME?

(BRIEF PAUSE IN PROCEEDING.)

I'VE READ ALL YOUR PAPERS.

COALITION OF COURT REPORTERS OF LOS ANGELES 213.471.2966 WWW.CCROLA.COM

(BRIEF INTERRUPTION WITH THE CLERK AT SIDEBAR.)

OKAY, IS THERE A CHANNEL 22 HERE? CHANNEL 22, YES.

UNIDENTIFIED PERSON: THE COURT: MR. LEVINE:

ANY OBJECTION TO THEM SETTING UP? NO.

COALITION OF COURT REPORTERS OF LOS ANGELES 213.471.2966 WWW.CCROLA.COM

MR. SATO: THE COURT:

(BRIEF PAUSE IN PROCEEDINGS.)

SO THE POLICE PROTECTIVE LEAGUE HAD A

ABOUT THE SUPREMACY OF THE STATE VEHICLE CODE SECTION, HOW

COALITION OF COURT REPORTERS OF LOS ANGELES 213.471.2966 WWW.CCROLA.COM

I THINK WE'RE KIDDING OURSELVES IF WE

COALITION OF COURT REPORTERS OF LOS ANGELES 213.471.2966 WWW.CCROLA.COM

THIS DIFFERENCE IS MEANINGFUL WHEN YOU

IT'S BEEN WELL ARGUED ABOUT WHAT IT COVERS, HOW

COALITION OF COURT REPORTERS OF LOS ANGELES 213.471.2966 WWW.CCROLA.COM

GUIDANCE TO OUR OFFICERS IN THE FIELD.

AND THIS WAS A

THE OFFICER -- MAY IMPOUND.

IT CHANGES THE OUTCOME.

AND FOR THAT MATTER, I CAN'T

SO IT'S, I BELIEVE FROM WHAT I'VE READ, IS THAT I AM HAPPY

THE VEHICLE CODE DOES PREEMPT SPECIAL ORDER 7.

COALITION OF COURT REPORTERS OF LOS ANGELES 213.471.2966 WWW.CCROLA.COM

THE DECLARATIONS. DO YOU HAVE THOSE? THE CLERK: THE COURT:

I RULED ON THE OBJECTIONS.

BUT THE CHP PULLED

COALITION OF COURT REPORTERS OF LOS ANGELES 213.471.2966 WWW.CCROLA.COM

EVEN CITED IN THE OPINION.

CASE, JUDGE HENDERSON WROTE AN OPINION.

AND HE SAID, RUIZ SAID, I HAVE

COALITION OF COURT REPORTERS OF LOS ANGELES 213.471.2966 WWW.CCROLA.COM

THOSE FINDINGS ARE IN 14607.4

IT WAS GETTING LATE LAST NIGHT, I RAN OUT OF

IT SAYS, WE RECOGNIZE THIS IS A

ALTERNATIVES THAT ARE MEANINGFUL.

COALITION OF COURT REPORTERS OF LOS ANGELES 213.471.2966 WWW.CCROLA.COM

I'M NOT HERE TO DISCUSS WHETHER A WE DON'T DO WE JUST EXAM

ISN'T THAT WHY WE ELECT REPRESENTATIVES,

I DON'T THINK THE LEGISLATURE AND

I ENJOYED YOUR PAPERS.

COALITION OF COURT REPORTERS OF LOS ANGELES 213.471.2966 WWW.CCROLA.COM

I HEARD MORE THAN MY FAIR SHARE I

YOUR, HONOR, THE CITY DOES APPRECIATE

WE HAD GUIDELINES ABOUT HOW TO DO OUR JOB.

IT'S A REAL WORLD THING.

COALITION OF COURT REPORTERS OF LOS ANGELES 213.471.2966 WWW.CCROLA.COM

YOU ARE MAKING ARGUMENTS THAT ARE -- YOU'RE SAYING

COALITION OF COURT REPORTERS OF LOS ANGELES 213.471.2966 WWW.CCROLA.COM

COALITION OF COURT REPORTERS OF LOS ANGELES 213.471.2966 WWW.CCROLA.COM

OF ALL, IT TAKES THE UNLICENSED SITUATION, BREAKS IT INTO

COALITION OF COURT REPORTERS OF LOS ANGELES 213.471.2966 WWW.CCROLA.COM