Monday, May 7, 2012
Attorney General Harris Backs LAPD Policy on Auto Impounds
By KENNETH OFGANG, Staff Writer
The Los Angeles Police Department’s controversial policy allowing some owners of impounded vehicles to reclaim them less than 30 days after police find them being operated by unlicensed drivers does not violate state law, Attorney General Kamala D. Harris has opined.
Thursday’s opinion, which was requested by state Sen. Kevin de Leon, D-Los Angeles, puts Harris at odds with District Attorney Steve Cooley and the Office of Legislative Counsel, as well as the Los Angeles Police Protective League, which is challenging the policy in court.
De Leon praised the attorney general in a statement Friday, criticizing Cooley’s involvement.
“The District Attorney’s meddling into the internal policy making at LAPD was inappropriate and his conclusions were wrong,” the senator said. “As a result I had to ask the State’s top cop and lawyer to weigh in and settle the dispute between the City and the District Attorney. I hope that the opinion will put this to rest so the City can move forward.”
An LAPPL spokesperson cautioned, however, that the league has no intention of dropping its lawsuit. “A court will decide this,” the spokesperson said Friday.
At issue is Vehicle Code Secs. 22651(p) and 14602.6(a)(1), both of which address the issue of police authority to remove vehicles from a roadway when the driver has been found not to hold a valid license.
The former section does not specify the length of the impound period, but allows the registered owner to reclaim the vehicle upon proof of current registration and a driver’s license. But Sec. 14602.6(a)(1), the later-enacted of the two statutes, specifies a 30-day period of impoundment, subject to some exceptions.
LAPD Charlie Beck earlier this year requested, and obtained, Police Commission approval of a policy directing that vehicles be impounded under the 30-day statute in some circumstances, but that in less serious circumstances, the vehicles be released in as little as one day under Sec. 22651(p).
The more lenient policy applies to drivers stopped for infractions who have auto insurance, valid identification and no previous citations for unlicensed driving, unless they have been involved in a major collision and were at fault.
The chief and commission sided with advocates for unlicensed drivers, including illegal immigrants, who said that impounding cars for 30 days placed an unfair burden on those who need vehicles to get to work. De Leon noted in his statement that a 30-day impound can wind up costing the owner more than $1,000 in fees and storage charges, not to mention lost work income.
In an opinion prepared by Deputy Attorney General Marc J. Nolan, Harris said police departments may exercise discretion over which statute to use, rejecting the suggestion that the 30-day statute must be given precedence because it is more specific, as Cooley and the Legislative Counsel have insisted.
The attorney general cited California Supreme Court authority to the effect that the “specific-over-general” rule only applies when a conflict is irreconcilable. Because the two statutes here are both “permissive,” Harris reasoned, officers are left with discretion as to which to apply.
“To interpret these statutes in such a way as to deny an officer in the field the option of using section 22651(p) where he or she has chosen, based on standardized criteria, not to invoke the more severe sanction of section 14602.6(a)(1) would fail to harmonize the two related statutes as the authorities instruct us to do,” she wrote. “In addition, it would also lead to an anomalous gap in the officer’s authority to order a vehicle impounded under the otherwise permissive provisions of section 22651, thereby curbing the officer’s discretion and flexibility in responding to any number of competing concerns and demands he or she might encounter in the field, and violating the ‘fundamental rule’ that statutes should be construed to avoid such anomalies.”
The attorney general noted that the Legislature added Sec. 14602.6 and amended Sec. 22651(p) in a single 1994 bill, suggesting that lawmakers did not intend the former to repeal the latter.
The LAPPL filed suit last month, seeking declaratory and injunctive relief. The league expressed concern that officers might be subject to liability if a driver who got his car back early were involved in a collision before the 30-day impound would have expired.
A Cooley spokesperson said the attorney general acted with surprising haste, given that de Leon only requested the opinion two months ago and such opinions are generally issued a year or more after being requested.
In a letter sent to Beck and other area police chiefs, as well as county supervisors, dated Feb. 27, Cooley emphasized language in the legislation that contains the 30-day rule, commanding that vehicles operated by unlicensed drivers “shall be impounded” pursuant to that section. The language, he said, creates a mandatory duty which the employing agency could be held liable for violating under Government Code Sec. 815.6.
He also cited language in the 1994 legislation declaring legislative intent to crack down on unlicensed drivers in order to protect “innocent victims” from “pain and property loss at the hands of people who flaunt the law.”
Copyright 2012, Metropolitan News Company