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
The views expressed in this posting are the author’s alone and not those of the blog, the host, or other weekend bloggers. As an open forum, weekend bloggers post independently without pre-approval or review. Content and any displays or art are solely their decision and responsibility.
If a cop is chasing a bank robber or prison escapee, a citizen can’t communicate to aid and abet the criminal.
If a driver is speeding, the driver is a criminal.
The citizen with the warning sign is aiding and abetting a criminal.
Obstruction of justice.
Next case.
This was settled by the Supreme Court in Elli vs. Ellisville MO as a freedom of speech case. Not obstruction any more.
forgotwhoiam – telling someone to obey the law is NEVER obstructing justice.
I learn more about Isaac’s “knowledge” on the Constitution every time he pontificates. Fascinating.
L Brothers
‘Local laws don’t trump the Constitution’
Wrong. The Constitution is constantly being interpreted, with regards to ‘freedom of speech’. The Supreme Court is there to interpret and see to it that their interpretation of the Constitution or any law is upheld.
An idiot standing on the side of the road may technically mean one thing or another but in reality that person is obstructing police activity.
What the Constitution will or won’t trump is up to the Supreme Court, ultimately. Hopefully the local courts will prevail and the SCOTUS will simply not waste the time and refuse to hear it.
This does nothing more than diminish the purpose of the Constitution. There is the law, the intent of the law, and some semantic piece of technical BS. Yeah I know, Hitler, etc., etc., etc..
I forgot who we all were but I was assuming that we did not live in Russia. Warning a speeding driver to slow down is our duty. This is not a choice even. Not an echo. If you see a speeder and do not warn him to slow down and he runs over a small kid crossing the street then you are at fault too.
Why do we pay governmental workers if a citizen is going to destroy their work?
The citizen has wasted taxpayer dollars by nullifying the police effort/expenditure.
The citizen should petition the city council for redress.
If the cop is doing something wrong, his managers have failed and should be fired.
The elected municipal government should effect appropriate police behavior.
The citizen should be prosecuted for criminal obstruction of public policy and justice.
From Issac: ” The law says you can’t insert yourself into the traffic signage of the community. That’s it. The freedom of speech schtick is complete BS.”
Wrong. Local laws and ordinances don’t trump the Constitution. Period.
Looks like his amended sign is not in violation.
I live near an intersection that is a 4-way stop. On Saturday nights there is a stream of traffic to that intersection from a local speedway. One Saturday night the local sheriff’s department had several cars lined up in driveway where they are hard to see in anticipation of picking up folks sliding through the stop sign or not using turn signals. What they didn’t anticipate was a late arriving trailer that could see them. That night the cars came off the hill within the speed limit, used turn signals and came to a full stop at the stop sign. One car was stopped and, considering the amount of time taken, it was probably a DUI. I did appreciate the effective behavior modification but, as a tax payer, I would have been happier with only one car, prominently parked, each weekend.
For the record, the Waldo speed trap is no longer in operation. The entire police department there was disbanded last year after a state audit found a lot more improprieties than just the revenue machine.
Wasn’t this settled in Elli vs. Ellisville MO?
There needs to be a group formed in that town and for lack of a better name call it : Citizens United. They need to show up at traffic court with tee shirts with logos with the words: Cops Ahead!
On the rear of the shirt they need a logo depicting the middle finger and the Mayor of Seattle. Then they need black arm bands which say: Dont Tinker With Our Rights!
Please Google: Tinker v. Board of Education. The story of the Tinker family and the black arm bands in school and the Supreme Court is discussed.
Here they used to list where they were doing DUI stops, but not motorcycles, etc. Even with this they pick up a lot of drunks.
The guy with the sign would have been fine if he kept his sarcastic elitist mouth shut. The cops could not have had more forebearance for such a dilettante, so taken with his deep understanding of the constitutional ramifications of traffic control. For years I had habitually ignored a no left turn at a residential intersection. I saw the reason for the sign, but no one was ever around so I, apparently along with many others in the neighborhood, ignored it. One Sunday morning a cop was there and gave me a ticket. He asked me if I saw the no left turn sign and I said yes, and I said I had been doing it for years, along with many others. He politely said that’s why he was giving tickets. I accepted it. First be a gentleman, then go protest politely. If it’s serious enough, we’ll have another revolution. And it’s now getting close to “serious enough.” I doubt our dilettante will be in the front lines.
For many years now, every time I see a speed trap looking/working the opposite direction I’m headed I’ll put my arm out the window and with index finger up make a twirly sign to the oncoming traffic. I suppose most people have no idea what it means but to those who know, they slow down if speeding. It’s harmless and to my mind kind of nice.
BTW, I think some nice attorney make take this pro bono.
I had a couple of thoughts on this. 1) In traffic court the cops usually represent themselves so a good reading of the statute can do them in. 2) Since he recorded it, the silence by the officer can be taken as a yes (per SC decision this year). 3) I am surprised they only rolled out three officers for such an obviously dangerous subject.
In Arizona we had a situation where people were putting cardboard boxes over the speed cameras. Turns out it is not against the law. 😉
The Seattle Police must have all the murders, rapes, and robberies solved. I sometimes give the high beams when I see a speed trap. Sometimes I don’t. I’ve never assessed why. On this, I side w/ the citizen. In essence, he was getting people to obey the law proactively. The police were using negative consequences.
In KC, there has long been a kind man who gives out $100 bills to people he sees out in public. He studies people and looks for folks who look like they could use a pleasant surprise. Several months back, w/ all the police bashing, this good man gave the C-notes to cops to give to citizens obeying the law. The philanthropist asked cops do the same as he, look for someone who could use a little sunshine in their day. There should be POSITIVE reinforcement programs nationwide for cops to use. If you want to motivate people, positive beats negative, every day. Coaching taught me that.
There are different components of the First Amendment. It is free speech. He was also petitioning his government for redress of grievances by : letting others know that there was a speed trap ahead and informing others of the “trap”. By informing others he was informing the public and hence he and the public were asking the city, and cops to cease their endeavor to cash in on motorists.
The guy was obviously a terrorist and a threat to national security. He got off easy with a ticket. He should have been executed on the spot. There can be no leniency shown to those who interfere with those in authority.
Bailers
Years ago I worked in an office with a view of a blvd in Hermosa Beach in the LA area. The speed limit was 35 and for a good reason, lots of residential activity, driveways, strip malls, etc. The safe speed was 35. Near the end of the working day people would wiz through the neighborhood at speeds up to 50, generally 45. A motorcycle cop would show up around 4pm and pull over one after another. Regardless of whether or not he was ‘funding’ or how ever one wants to see it, the cop was doing a fantastic service to the community. Without that there would be more accidents and kids run over. The frequency of the catches increased as the week went on. Not so much Monday, more by Wednesday, and non stop Friday. In a perfect world he would be out of work.
Most cops allow a reasonable 5 or 7 miles over in a 35 zone but 45 + the car needs a tune up. Law enforcement can protect their funding and public safety. The two more often than not go together.
Reminds me of police getting upset over the app Waze. The claim was that it threatened officer safety for the public to know where police were running speed traps. In reality it was just threatening their funding stream. It’s so sad to see law enforcement that is more interested in protecting their funding than the public safety.
This is another example of the perversion of our basic rights by someone using them in a frivolous and cavalier manner. The law says you can’t insert yourself into the traffic signage of the community. That’s it. The freedom of speech schtick is complete BS.
Contesting this under the rights of free speech is nothing more than delinquent.
Speed traps are beneficial to the public but sometimes are taken to extremes that border on the bizarre. In North Central Florida the town of Waldo is infamous for its speed traps. One has next to no time to drop from 55 to 45 and if you are over by a couple miles per hour you get a ticket. The town supports itself from the revenue.
On the approaches to the town coming from both ways are huge standard billboards warning of the upcoming speed trap. They are posted outside the town’s limits and are perfectly legal having permits and conforming to approved structural and size conditions.
However, the guy with the plastic lid is outside the box both legal regarding approvals and conditions. To pervert the right of freedom of speech for this is to diminish the importance of that basic right.
To make a fight for the sake of making a fight about something so important, hopefully will result in this idiot spending a lot of time and money for nothing. Unfortunately he will be spending taxpayer money as well.