Metropolitan News-Enterprise


Tuesday, December 30, 2014


Page 3


City Attorney Feuer Expresses Glee Over Decision Upholding ‘Special Order 7’


By a MetNews Staff Writer


Los Angeles City Attorney Mike Feuer yesterday hailed the Court of Appeal’s ruling upholding the power of Police Chief Charlie Beck to issue “Special Order 7” which limits circumstances under which officers may, pursuant to state statute, impound a vehicle being driven by a person lacking a driver’s license.

Feuer said he was “extremely pleased” by the decision, issued Friday by Div. Eight of this district’s appeals court, adding:

“The court’s ruling validates what we’ve been fighting for: Chief Beck’s ability to guide how his officers implement state law regarding impoundment of vehicles.”

Feuer’s press release contained this comment, attributed to the Los Angeles Police Department:

 “We are pleased by the court’s decision reaffirming the Department’s authority to provide direction to its officers regarding this important matter. Maintaining the public’s trust is improved when the communities we serve believe the actions of our officers are fair, consistent and constitutional in each neighborhood of the city. Many thanks to Mike Feuer and his staff at the Office of the City Attorney for their support and outstanding work on this issue.”

Beck issued the order in 2012 in light of his perception that a disproportionate number of vehicles being impounded for 30 days were driven by illegal aliens who needed those vehicles to get to and from work. (Under legislation effective Thursday, illegal aliens will be eligible for special driving permits.)

Judge Green’s Ruling

Friday’s opinion reverses a decision by Los Angeles Superior Court Judge Terry A. Green who on Aug. 12, 2013, enjoined the city and the LAPD from enforcing Beck’s special order on the ground that it contravenes statutes. Green acted in an action brought by Harold Sturgeon, in the capacity of a Los Angeles County taxpayer, and the Los Angeles Police Protective League, a volunteer association of officers.

Div. Eight, signaling its eventual decision, issued a writ of supersedeas, leaving the order in place.

Writing for Div. Eight, Justice Madeleine Flier  said:

“We conclude that Special Order 7 is within the wide discretion of the police chief, and that neither Sturgeon nor the League has standing to challenge the chief’s implementation of the state statutes.”

Finds No Conflict

Flier concluded that the order does not contravene Vehicle Code §14607.6(c)(1) which provides:

“If a driver is unable to produce a valid driver’s license on the demand of a peace officer enforcing the provisions of this code,...the vehicle shall be impounded regardless of ownership, unless the peace officer is reasonably able, by other means, to verify that the driver is properly licensed.”

In addition, §14602.6 provides that where a driver is found to be unlicensed, a law enforcement officer may “immediately arrest that person and cause the removal and seizure of that vehicle.”

Curbing an officer’s discretion, “Special Order 7” bars the impounding of a vehicle driven by an unlicensed driver where “The registered owner or his/her designee has a valid California Driver’s License or is a nonresident with a valid license or otherwise exempt under the Vehicle Code; [¶] The registered owner and licensed driver are immediately available; [¶] The registered owner authorizes the licensed driver to drive the vehicle; and, [¶] The vehicle’s registration is not expired over six (6) months.”

Flier’s Reasoning

Flier wrote:

“Here, Special Order 7 implements state law; it does not create a new law.…The doctrine of preemption does not apply to the police chief’s implementation of state law because preemption requires the comparison of two separate laws to determine if one duplicates or conflicts with the other….The order seeks to ensure uniform application of the Vehicle Code among the 10,000 sworn officers in Los Angeles.  It accurately reports that several different statutes authorize impounding vehicles. It sets forth criteria for officers to use in selecting which statute to apply.

“Setting such uniform criteria falls within the broad discretion of the police chief. City officials may set policies that are consistent with state law and constitutional standards….A chief of police may set policies for the City on police matters, and the Los Angeles chief of police is an ‘authorized policymaker on police matters.’…Officers’ discretionary decisions may be constrained by an authorized policymaker.”

Cooley’s View

Former Los Angeles County District Attorney Steve Cooley said he had been an opponent of Beck’s order and agreed with Green’s ruling, adding:

“The appellate court has weighed in, and I think this issue should be resolved at the Supreme Court level.”

The former chief prosecutor said that “there are serious questions here” about whether state legislation should be subject to differing application in the various municipalities.

Attorney Brent Braun, a former supervisory special agent of the FBI, remarked:

“A certain amount of discretion is inherent to all law enforcement actions with the exception of serious crimes.  The key challenge for Chief Beck is the consistent, fair and proportional implementation of this Special Order in a manner that reflects the spirit of the law without sacrificing public safety. That challenge to Chief Beck cannot be understated.”

The case is Los Angeles Police Protective League v. City of Los Angeles, 14 S.O.S. 5886.

  Arguing for the city were Chief Deputy City Attorney James P. Clark and Deputy City Attorney Gerald M. Sato, Deputy City Attorney. Representing the Protective League were Richard A. Levine and Brian Ross of Silver, Hadden, Silver, Wexler & Levine. Sterling E. Norris and Paul J. Orfanedes of  Judicial Watch, Inc. were attorneys for Sturgeon.

The ACLU Foundation of Southern California was allowed to intervene. It was represented by Peter Bibring, Michael Kaufman and Lucero Chavez.

The Office of Attorney General and he League of California Cities filed amicus curiae briefs.


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