Selective enforcement defence?

What is the name of your state (only U.S. law)? MA

I was issued a citation for 'non-compliance with regulations' for being in a park after sunset by an officer I've known for 8 years and worked with for two, while another person also known personally by the officer, and also in the park after sunset just minutes before me was merely given a verbal warning (both of us were in the process of exiting the park when stopped). The other person stopped told the officer that I was coming along just a few minutes behind. The officer allowed him to leave and then stopped and cited (fined) me. I have been a well known outspoken public critic of the parks management and policies.
Is this a violation of the Equal Protection Clause with a clear intent to discriminate? In this case is a regulation being administered 'with an unequal hand, so as practically to make unjust and illegal discriminations between persons in similar circumstances, material to their rights'?
Thanks for any informed opinions.

The fact that someone else was not (apparently) subject to enforcement action is not a defense to your violation. You have no way of knowing the exact details of the interaction between the other party and the officers, and can only infer that some ulterior motive exists. But, the courts (including the USSC) have consistently ruled that the underlying reason for an officer's lawful action (stop and/or citation) is not an issue so long as a valid offense has occurred and the discrimination was not otherwise unlawful (i.e. you were stopped and cited solely because of your membership in a protected class, etc.).

If you feel that unfair favoritism was granted, perhaps you can contact the agency employing the officer(s) and make a complaint.

- Carl

CdwJava said:

If you feel that unfair favoritism was granted, perhaps you can contact the agency employing the officer(s) and make a complaint.

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OP, please note that this will likely not affect your charges as you are obviously guilty of the charge being held against you.

Hey Carl, you're usually good about pointing this out to people!

My argument is that the citation was indeed issued as a purposeful, intentional decision to discriminate, to concentrate enforcement upon me, based upon an unjustifiable and arbitrary standard, in this case a desire to inhibit First Amendment freedoms. The officer knew both of us personally, and knew I was an outspoken public critic of the management of the agency that employs him. The officer, in a premeditated fashion selected me for enforcement while giving just a verbal warning to others.

jaeger said:

My argument is that the citation was indeed issued as a purposeful, intentional decision to discriminate, to concentrate enforcement upon me, based upon an unjustifiable and arbitrary standard, in this case a desire to inhibit First Amendment freedoms. The officer knew both of us personally, and knew I was an outspoken public critic of the management of the agency that employs him. The officer, in a premeditated fashion selected me for enforcement while giving just a verbal warning to others.

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That's not illegal discrimination. If he stopped you (stopped, not ticketed), because you were, say, an Eskimo, or a lesbian, or Chinese, then you might have an argument. Merely because you did not receive the same treatment as someone else does not negate your offense.

In addition to what others have posted, it could be argued that, since you took a few minutes longer to exit the park area, your violation was the more egregious of the two, therefore, more deserving of a citation. Your prior activism and knowing the officer could also be used to show that you were fully aware of the parks time restriction and willfully chose to ignore it. Especially if he testifies that he's advised you of such during prior contacts.

-or-

Since it's often difficult to stop another vehicle while an officer has one vehicle stopped, it could be argued that the first person stopped would have the same defense as you're claiming now, ie: since he can't ticket both, he shouldn't be able to ticket either one (putting the officer in a bit of a quandry).

You're basically saying that if all traffic is speeding, the cops shouldn't be allowed to stop and ticket anyone for speeding.

Lastly, a third argument could be made that such defenses didn't work when you were a child ("Why am I getting grounded for staying out late, none of the other kids got busted"), why would you think it would work now?

I'm more interested in your beef with the park service. Are you unsatisfied with their hours?

jaeger said:

My argument is that the citation was indeed issued as a purposeful, intentional decision to discriminate, to concentrate enforcement upon me, based upon an unjustifiable and arbitrary standard, in this case a desire to inhibit First Amendment freedoms. The officer knew both of us personally, and knew I was an outspoken public critic of the management of the agency that employs him. The officer, in a premeditated fashion selected me for enforcement while giving just a verbal warning to others.

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Did you violate the statute for which you were cited?

THAT is the only question that will be before the court. You were not cited solely because you were a member of a protected class. Unless you can show (with proof) that you were cited for being a "whistle blower" on something, then this argument is likely to be a waste of time.

However, you have the right to hire an attorney and attempt to make the case. Keep in mind that an attorney will likely cost at the low end of $1,500 ... how much is the fine for this offense, anyway?

- Carl

You Are Guilty said:

That's not illegal discrimination. If he stopped you (stopped, not ticketed), because you were, say, an Eskimo, or a lesbian, or Chinese, then you might have an argument. Merely because you did not receive the same treatment as someone else does not negate your offense.

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I believe that's incorrect. I think that selective enforcement that is designed to concentrate enforcement on an individual for the purpose of inhibiting First Amendment freedoms or to punish past speech violates both the 1st Amendment and the Equal Protection clause of the 14th. I don't believe that the equal protection clause applies only to discrimination based upon race or religion.

jaeger said:

I believe that's incorrect. I think that selective enforcement that is designed to concentrate enforcement on an individual for the purpose of inhibiting First Amendment freedoms or to punish past speech violates both the 1st Amendment and the Equal Protection clause of the 14th. I don't believe that the equal protection clause applies only to discrimination based upon race or religion.

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Then you should fight it. I'd guess $100K to get started.

jaeger said:

I believe that's incorrect. I think that selective enforcement that is designed to concentrate enforcement on an individual for the purpose of inhibiting First Amendment freedoms or to punish past speech violates both the 1st Amendment and the Equal Protection clause of the 14th. I don't believe that the equal protection clause applies only to discrimination based upon race or religion.

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And just HOW are you going to PROVE that the officer cited you solely because you were a critic of the agency? Did he admit to this? Is there some internal document you have come into possession of that shows this? Merely inferring this is not going to fly - especially when you were, apparently, in violation of the statute for which you were cited.

And I think you are taking the term "equal protection" WAAAY outside its legally defined parameters.

If you intend to make such a defense, I strongly suggest you consult local counsel to see if your state has some strange and unusual law that requires them to cite all or no violators, or that prevents officers from exercising discretion in some way. Lacking that, I suspect you will end up paying an attorney a lot of money for nothing.

And, just how much is the fine for this?

Also, one can argue that as an employee (or ex-employee) you KNEW the hours of the park and still violated those rules. That can make your case even tougher to make - especially if the first individual out was close to the closing time or had NOT worked at the park.

- Carl

Unless you can show (with proof) that you were cited for being a "whistle blower" on something, then this argument is likely to be a waste of time.
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Perhaps. Then the question is what constitutes sufficient proof to demonstrate that inhibiting free speech or punishing past speech indeed was the motivation of the officer? It is impossible to determine what is in a persons mind. However, the circumstances, the intentional selective enforcement of a person well known to the officer, a person who has been an outspoken critic of environmental management and conservation policy (who chairs a committee and published articles to the end), while two others the officer also knew personally (in the same car) were passed over for enforcement for the same violation, might lead one to reasonably conclude that this was his motivation in selectively discriminating. Why else? There were only two vehicles and he could easily have cited both as we were 5 minutes apart and he was told I was coming along just behind the first. The regulation (not a statute) was never previously strictly enforced, which I know, as a former employee and frequent visitor, so there was no expectation or reasonable understanding that it would be now. I have never been previously cited or warned.

If the burden of proof is so high that it requires actual witnessed speech or documented written material emanating from the officer that demonstrates his intent was to inhibit speech then it seems to me that that requirement is so strict as to be untenable in 99% of cases where the officer may indeed have malicious intent. Allowing any officer this kind of arbitrary discretion, particularly involving individuals he knows personally, to pick and choose who gets cited and who does not, invites an abuse of power.

jaeger said:

Perhaps. Then the question is what constitutes sufficient proof to demonstrate that inhibiting free speech or punishing past speech indeed was the motivation of the officer?

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An admission, an internal document, comments made by him to you or others indicating that this was hi motive or that he had been ordered or advised to retaliate against you ... it requires something more than you being cited for committing some infraction! If that were all it took, then if you ever complained about the local police, you would be immune from any and all traffic citations and arrests.

It is impossible to determine what is in a persons mind.

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Which is why the subjective motivation of the officer is generally not relevant to the issue at hand, only whether a violation had indeed occurred and the actions taken by the officer were lawful.

while two others the officer also knew personally (in the same car) were passed over for enforcement for the same violation, might lead one to reasonably conclude that this was his motivation in selectively discriminating. Why else?

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You can always ask this question at trial ... if the judge permits it. Depending on the nature of the violation, it may or may not be permitted, and it is very likely not entirely relevant. But, if it is a court trial, and the judge chooses to adhere to your inference, he is free to find you not guilty. Not knowing the details or the nature of the offense for which you are charged, I cannot possibly say what a judge might decide. But, legally, the officer's subjective motives are almost NEVER an issue unless they can be shown to be unlawful (which is very, very difficult - at least in my state o CA).

The regulation (not a statute) was never previously strictly enforced, which I know, as a former employee and frequent visitor, so there was no expectation or reasonable understanding that it would be now. I have never been previously cited or warned.

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If it is a codified violation of state or local law for which there is a prescribed penalty, then it is a statute whether it is referred to as a a "regulation" or not.

If the burden of proof is so high that it requires actual witnessed speech or documented written material emanating from the officer that demonstrates his intent was to inhibit speech then it seems to me that that requirement is so strict as to be untenable in 99% of cases where the officer may indeed have malicious intent.

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It is that way because anyone can make an allegation ascribing pernicious motives to an officer or an agency. That is the reason the courts have generally ruled that the subjective reasoning is generally not relevant so long as a violation occurred.

As I said, you are free to try and raise this as reasonable doubt, but it may still come back to a question of, "Did you violate the ordinance/statute/regulation?" If the answer is, "Yes" then you are guilty. You may then seek counsel to see if you have some kind of a civil claim against the agency for its retaliatory actions, but these may well be two different issues and the alleged retaliation is not likely to be a legal defense to the violation.

Allowing any officer this kind of arbitrary discretion, particularly involving individuals he knows personally, to pick and choose who gets cited and who does not, invites an abuse of power.

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NOT to allow discretion requires a standard that is impossible to adhere to. If there is an abuse of discretion, or you think you can make a case for some sort of retaliatory conduct, consult local counsel about a civil suit. But, don't expect to prevail with it as a defense to the violation at trial ... you might get lucky, but it wouldn't likely fly out here, and my state is very anal about such things.

- Carl

It is that way because anyone can make an allegation ascribing pernicious motives to an officer or an agency. That is the reason the courts have generally ruled that the subjective reasoning is generally not relevant so long as a violation occurred.
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But how could an anonymous violator in an hypothetical case make a pernicious allegation of this kind against the officer? The officer wouldn't know the views or past speech of an anonymous person previously unknown to him. Isn't it different given the fact that in this case the officer knows the parties personally here, and knows of my previously expressed views regarding the agency that employs him? Isn't that the simplest and most reasonable explanation for his selective enforcement?

The relatively small fine is not the point, and I won't be hiring a lawyer, and I'll pay it if the judge rules against me, but I truly believe the citation was with malicious intent as described.

Carl, I appreciate your experience and knowledge in responding to my questions and points. Thanks.

jaeger said:

But how could an anonymous violator in an hypothetical case make a pernicious allegation of this kind against the officer? The officer wouldn't know the views or past speech of an anonymous person previously unknown to him. Isn't it different given the fact that in this case the officer knows the parties personally here, and knows of my previously expressed views regarding the agency that employs him? Isn't that the simplest and most reasonable explanation for his selective enforcement?

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There can be MANY reasons for discretionary enforcement, and almost none of them would be a defense to the criminal allegation (the violation). What you MIGHT have is two separate issues here - one criminal (the citation) and the other, civil (retaliatory conduct on the part of your employer).

Discretion is not unlawful, therefore, even by inference, you cannot make a solid defense alleging that the only reason you were cited was due to retaliation. Like I said, absent some admission, this is not likely going to go any where as a defense. Like I said, if the judge allows you to bring it up, the judge might decide to agree with you (provided this is a more or less informal traffic court like setting). But, absent some real proof of his discretion being retaliatory, you should be found guilty.

The civil aspect can rely on inferences and totality of conduct on part of your employer. If you can show by a preponderance of the evidence that you have been targeted for retaliation, then you might prevail. However, being cited for violating a statute/regulation which you indeed DID violate is NOT going to be sufficient to carry the day on that account, either.

But, as I said, your state may have different rules and you may have additional details that an attorney might be able to turn in your favor. Merely being a critic does not make any citation against you a retaliatory or unlawful action by any stretch.

but I truly believe the citation was with malicious intent as described.

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What you believe and $.4.35 can buy you a Venti Mocha with an extra shot of espresso at Starbucks. Court is not about what you believe, it is about what can be proven. The state only has to show that you violated the statute for which you were cited. That sounds as if it will be easy. You will have to raise reasonable doubt that you violated the case ... arguing your belief that the officer cited you solely because of your past criticism is not going to be a defense by itself.

I don't know about you, but I wouldn't want to continue working somewhere if I felt my employer was out to get me. Maybe it's time to find another job.

- Carl