By Darren Smith, Weekend Contributor

While this might seem to some as a Tempest in a Tea Pot involving only a traffic infraction, the actions of a Seattle Police Department Motor Traffic Unit could put the city into a legal liability for a violation of free speech rights.

Several days ago, Daniel Gehlke saw motorcycle officers set up near the intersection of 14th Avenue South and South Washington and begin enforcing stop sign and speed laws. Mr. Gehlke then obtained a Rubbermaid container lid and wrote thereon the words “COPS AHEAD! Stop at sign and light!” He stood nearby the intersection displaying the lid to warn drivers of the traffic unit’s presence and recommend compliance with the law.

Unfortunately for Mr. Gehlke the traffic unit took exception to this and cited him under a Seattle Municipal Ordinance making the display of a sign “bearing any such words as ‘danger,’ ‘stop,’ ‘slow,'” and more… [with] Directions likely to be construed as giving warning to or regulating traffic.”

Seattle Police Spokesman Sean Whitcomb offered the department’s official position.

“The specific issue is that he was giving instructions to motorists through the words that he chose, like ‘slow down’ or ‘caution. That’s exactly the issue. It’s the words that give people orders referring traffic.”

SPD makes its case that this action was not due to Mr. Gehlke warning others of the upcoming speed trap but that it was simply enforcing a sign ordinance, in the view of your author this is a rather dubious claim.

When Mr. Gehlke chose to stand at a commuter station and hold the sign, three motor unit officers converged upon him—one directly. The contacting officer informed him that the sign constituted a violation of city ordinance relating to signage. The officer remained silent when asked if this had anything to do with the speed trap.

Mr. Gehlke recorded most of the encounter with a hand held device and is shown below:

The ordinance cited is as follows:

11.50.560 – Forbidden devices.

A.

No person shall erect or maintain at or near a street or alley any structure, sign, light or device that is:

1.

Visible from a street or alley and simulating any directional, warning, or regulatory sign or likely to be mistaken for such a sign or bearing any such words as “danger,” “stop,” “slow,” “turn,” “impound,” or similar words, figures, or directions likely to be construed as giving warning to or regulating traffic;

2.

Visible from a street or alley and displaying any red, green, or yellow light or intermittent or blinking light or rotating light identical or similar in size, shape and color to that used on any emergency or road equipment or any light otherwise likely to be mistaken for a traffic-control device;

3.

Visible from a street or alley and displaying any lights tending to blind persons operating vehicles upon the street or alley or any glaring light, or any light likely to be mistaken for a vehicle upon the street or alley or otherwise to be so mistaken as to constitute a hazard; or

4.

Visible from a street or alley, and flooding, or intended to flood, or directed across, the roadway of the street or alley with a directed beam, or with diffused light, whether or not the floodlight is shielded against directing its flood beam toward approaching traffic on the street or alley.

B.

Any structure or device erected or maintained contrary to the provisions of this section is a public nuisance and the Director of Engineering shall notify the owner thereof that it constitutes a public nuisance and must be removed, and if the owner fails to do so, the Director of Engineering may abate the nuisance. Any and all actions undertaken by the Director of Engineering or his duly authorized agent to abate such a nuisance shall not attach any liability to the City, its agents, or employees. (RCW 47.36.180)

The ordinance is mostly adopted by reference from Revised Code of Washington 47.36.180 having essentially the same language but modified to accommodate Seattle specifically. Title 47 RCW refers mostly to general highway construction, signage rules and official duties of the state whereas Title 46 RCW relates mostly to traffic enforcement laws.

The purpose of this law is to prevent the construction of signs or devices that tend to confuse motorists regarding directions intended to be conveyed by traffic engineers for a given roadway. An essential element to the Seattle Municipal Code and the referred RCW is for signage or devices “likely to be construed as giving warning to or regulating traffic.” The words “Stop at sign and light!” written with a black pen on a white plastic container lid held by a man standing next to a street are in not likely to be construed by a reasonable person as being an official traffic device.

By the same logic a sign in Seattle and Bellevue for an electronics store having a red octagonal sign with the words “Computer Stop” and the plastic sign at left would also be illegal.

From a procedural point of view citing the notice of infraction probably is invalid. The ordinance reads that the Director of Engineering may send a notice to the sign’s owner requiring removal. Failure to comply constitutes a public nuisance and is punishable by a misdemeanor. Instead the traffic officer issued a notice of infraction for $138.00, likely the default fine for violations of the traffic ordinance. This law deals with traffic devices from a public nuisance perspective not a traffic violation.

The most probable reason for the enforcement was that the motor traffic unit took exception to Mr. Gehlke preventing to the crew from writing traffic tickets and used the imposing of a sign, or at least throwing a legal process at him to punish rather than to abate a public nuisance. It would be curious to see if the motor traffic unit ever enforced this ordinance earlier, much less read the entire ordinance.

The main issue of concern for this article relates to the First Amendment and Article I Section 5 of the State Constitution. Are citizens free to hold signs warning of the presence of police officers and directing them to slow down and, actually, encourage the halo effect to afford compliance with the traffic code?

Case law applicable in Washington prohibits the state from prosecuting the crime of Obstructing a Law Enforcement Officer for citizens warning drivers of oncoming speed enforcement campaigns by police on free speech grounds. Similarly the flashing of headlights to warn other drivers of the presence of police, a custom in many areas, is also a protected practice where the state is barred from enforcing obstructing laws or failures to dim headlights against those engaged in this form of expression. States interpreting free speech rights include Oregon, Florida, Missouri, Ohio, Pennsylvania, and Tennessee.

Should Mr. Gehlke receive an unfavorable decision in the Seattle Municipal Court, it would provide a welcome free speech challenge at the appellate level at he is highly likely to prevail.

By Darren Smith

Sources:

KOMO News
Seattle Municipal Code

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