There is law. There is duty. And then there is the question of discretion, who gets to decide whether it’s to be executed or not. This is an issue that’s reared its head on numerous levels over the past few years, most notably when progressive prosecutors ran for and won office upon the campaign promise that they would categorically refuse to prosecute laws with which they disagreed.
There’s no doubt that a prosecutor has the individualized discretion to decide not to pursue a particular case. Maybe the evidence isn’t there. Maybe the facts and circumstances are such that she feels it would be an improper or counterproductive exercise of authority. Regardless, it’s within their authority to decide to toss a case. But individualized discretion is very different than categorical exceptions.
If the legislative body enacts a law criminalizing conduct, and it’s the responsibility of a prosecutor to prosecute violations of that law, do they get to shrug and say, “nah, I don’t wanna”? But the lege said so, and is it not the prosecutor’s duty to follow the law as dictated by the governmental body with the authority to enact laws?
In Pittsburgh, this scenario got turned on its head.
Pittsburgh Police officers have been instructed to resume enforcing minor traffic violations — like an expired registration sticker or a poorly secured license plate — despite a 2021 ordinance to prevent them from doing so in the absence of a larger infraction.
A spokesperson for the department said the memo came as a result of “recent changes in state law.” But some legal experts question whether there’s sufficient reason to compel a reversal of the policy.
The city ordinance prohibits Pittsburgh police officers from pulling over a motorist if the primary reason is one of eight minor traffic violations. (Officers could pull over a motorist for another reason and still issue a ticket for a secondary infraction.) Advocates argued that racial bias can lead to disproportionate enforcement against Black and Latino residents. The ordinance was an attempt to mitigate those disparities modeled on similar legislation in Philadelphia.
After the Supreme Court blessed pretext stops in Whren, and as people became more attuned to the crime of “driving while black” as a mechanism to conduct a warrant check or drug search, the question arose how to prevent police from using the vast and largely unchecked authority to pull over cars for trivial (if not fabricated) violations for improper purposes.
According to Pittsburgh Police data, Black residents make up only about 22% of the city’s population, but accounted for 42% of traffic stops in 2021.
If a cop wants to pull a car over with a traffic violation, all he needs do is follow for a bit and he’ll find one, or be able to make one up. On behalf of the disproportionate stopping of black and Hispanic drivers, Pittsburgh decided to assert its civilian control over its police department and say “enough.”
Acting Police Chief Thomas Stangrecki said “enough” too, just the other way.
A public information officer for the Pittsburgh Bureau of Police told WESA that the procedure dictated by the ordinance “was pulled down by Acting Chief [Thomas] Stangrecki to be reviewed in light of recent changes in state law.”
The bureau’s statement did not provide a full account of those changes, though it cited as an example, “the relatively recent amendment to the section of the PA vehicle code regarding license plate obstruction.” Given the change, “rescinding the memo made sense at this time in order to provide clarity for officers in the field.”
The change in state license plate obstruction law to conform with state caselaw, that it meant obstruction of the plate numbers, not the vacation url at the bottom of the plate, smells like a complete excuse to ignore the local ordinance because the local cops didn’t like being told what laws they couldn’t enforce.
Stangrecki told WESA another reason for the reversal was to boost morale among the city’s police ranks. He said he’s received steady feedback that the ordinance is “preventing them from doing their jobs.”
“The officers who are employed here come here for a reason, and that’s to enforce the law,” Stangrecki said. “I thought it was imperative that I send out some strong messaging to the officers that are still here on this police force that you can do your job, you can enforce the law.”
And, indeed, the legislative change regarding the license plate law is the law. So, too, however, is the local ordinance prohibiting the cops from enforcing the law through stops. Chief Stangrecki is choosing to enforce one law and ignore another, one expressly directed at him and his force. Seems very wrong, very un-law-abiding, for the Pittsburgh police to refuse to comply with their own city ordinance, and they have been roundly taken to task for rejecting civilian control of their conduct.
But then, is this any different than a local district attorney refusing to prosecute categories of law that he or she doesn’t like? Each of these roles were part of a system of law enforcement, as the opening to Law & Order reminded us, but when the office holders or department heads are in conflict, who gets to decide which laws are followed?
*Tuesday Talk rules apply.
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