By Robert Phillips, Deputy District Attorney (Ret).
Except for Vehicle Code violations, citizen contact quotas are not illegal in California even though probably not a good idea.
I’ve recently heard rumors concerning various California law enforcement agencies imposing upon their patrol and traffic officers a requirement that they conduct a minimum number per shift of what might best be termed as “contacts” (or “citizen contacts”) with individuals on the street. On its face, the apparent intent of such a policy is to encourage officers to get out of their respective patrol and traffic cars and talk to citizens, making their presence known. On its face, such a requirement seems appropriate, good police work, and if conducted in a positive, respectful manner, good public relations. But when a law enforcement agency attaches to such a policy a required minimum number of such citizen contacts, often with possible counseling or discipline imposed for an officer’s failure to adequately comply, we have to ask ourselves whether we are wandering into the area of a possibly prohibited “quota” system.
In evaluating any individual law enforcement agency’s policies dealing with this issue, we have to ask ourselves three questions:
(1) What is meant by the term “citizen contact?”
(2) Does a requirement that an officer conduct a minimum number of citizen contacts impose upon that officer what might otherwise be called a “quota?”
(3) If this requirement is a quota, does an agency’s policy requiring its officers to conduct a specified number of citizen contacts violate any prohibitions or restrictions imposed by statute or case law?
An officer-initiated citizen contact, in practice, can be found to have occurred in any number of situations. If we can first eliminate interviews with crime victims or witnesses, or anytime someone is arrested upon an officer responding to a reported crime, we are left with what are commonly categorized as “consensual encounters” and “detentions.” A consensual encounter occurs any time an officer walks up to someone on the street and seeks to merely talk with him or her, and when the person is free to ignore the officer and simply walk away. (Wilson v. Superior Court (1983) 34 Cal.3rd 777.) A detention, on the other can, occurs whenever an officer can articulate a reasonable suspicion to believe that the person contacted was, is, or is about to be involved in criminal activity. (Terry v. Ohio (1968) 392 U.S. 1.) Police-citizen contacts, when the result of a traffic stop, also fall into the category of a detention. (Navarette v. California (2014) 572 U.S. 393.) Any of these situations may very well evolve, upon the development of “probable cause,” into an arrest; a circumstance that makes it no less of a citizen contact. All of these situations (i.e., consensual encounters, detentions, and field-initiated arrests) are likely to be classified as “citizen contacts” for purposes of a law enforcement agency’s requirement that a minimum number of contacts be made per shift. But do they violate any statutory or case law prohibition as they might relate to quotas?
California’s sole statutory restrictions on the use of quotas are contained in Vehicle Code §§ 41600 through 41603. Section 41600 defines an “arrest quota” as “any requirement regarding the number of arrests made, or the number of citations issued, by a peace officer, or parking enforcement employee, or the proportion of those arrests made and citations issued by a peace officer or parking enforcement employee, relative to the arrests made and citations issued by another peace officer or parking enforcement employee, or group of officers or employees.” Note that consensual encounters and detentions are specifically not listed. But with section 41600’s definition in mind, we see that Veh. Code § 41602 prohibits a state or local police agency from maintaining a policy requiring any peace officer or parking enforcement employee to meet an arrest quota, which, again, includes citations. Section 41602, however, limits this prohibition by its terms to “peace officers or parking enforcement employees engaged in the enforcement of this code or any local ordinance adopted pursuant to this code,” (Italics added) By “this code,” we’re talking about the Vehicle Code. Similarly, section 41603 (prohibiting quotas to be used as the “sole criterion for promotion, demotion, dismissal, or the earing of any benefit provided by the agency”) also limits its restrictions to “peace officers or parking enforcement employees engaged in the enforcement of this code.” (Italics added.) No reference is made by these sections to the Penal Code or any other California code, and no similar statutes exist in any code other than the Vehicle Code. The problem is, without a statutory Penal Code-related prohibition on the books, if a police agency establishes a quota system for anything other than Vehicle Code-related violations, there is no available means for the “victim” of such a quota to seek redress (absent a non-statutory constitutional violation; but see below).
A law enforcement agency, as noted above, might set out a minimum number of “contacts” or “citizen contacts” an officer is required to make per shift. In so doing, the agency is arguably seeking to avoid the “quota” stigma by not requiring that any minimum number of actual arrests or citations be made; just that their officers are to make a dictated number of “contacts.” As already noted, the term “contacts” is likely to be defined by a law enforcement agency to include consensual encounters, detentions and field-initiated arrests. However, avoiding the term “quota” isn’t necessarily going to duck the issue. A December 17, 2013, Los Angeles Times article (authored by L.A. Times reporters Joel Rubin and Catherine Saillant) describes how a group of L.A.P.D. motor officers won a $6 million civil judgment by suing over the imposition of “a secret traffic ticket quota system.” Although the then Police Chief Charlie Beck defended the practice (as did the traffic lieutenant who initiated the policy) by arguing that management had merely set broad “goals” for the laudatory purpose of reducing traffic violations, changing the label from “quota” to “goal” did not exonerate the department’s administration. This argument having failed to save L.A.P.D. from civil liability at least once before (as mentioned only in passing in the article), the City of Los Angeles was prompted to settle this particular claim before it ran up the bill any higher than it already was; $10 million after adding on the court and legal fees. Unfortunately, this is not a decision out of the appellate courts, but rather a mere pre-trial disposition of a pending civil suit. As such, it is of no value as appellate court-imposed precedent. But it should serve as a warning to police departments which think that labeling a policy something other than “quota” isn’t necessarily going to protect it from having to pay big dollars should their authority to do so be challenged.
The topic of law enforcement quotas is unfortunately devoid of any citable case law to help us understand this issue. However, the federal Fourth Circuit Court of Appeal has contributed an unpublished decision (i.e., not available to cite as prior case authority) to the debate. In Gravitte v. North Carolina Division of Motor Vehicles (4th Cir. Mar. 25, 2002) 33 Fed. Appx 45, plaintiff—a law enforcement officer working for North Carolina’s Division of Motor Vehicles (DMV)—alleged in a lawsuit that his employer’s imposition of specific quotas of certain types of citations violated his constitutional rights. Specifically, he was reprimanded for writing too many moving as opposed to commercial violations; the latter being what he was supposed to be doing. The DMV did in fact have a quota system, such as it was. Under this program, officers were expected to (1) average five “enforcement actions” per day; (2) average two inspections per day on commercial vehicles; (3) issue “a certain number” of traffic citations; and (4) issue “enough” overweight citations on commercial vehicles. Plaintiff was reprimanded in writing by his supervisors for violating these policies by writing tickets to too many non-commercial drivers and not enough truckers. So he sued in federal court, alleging a number of constitutional violations (i.e., Equal Protection, Due Process, Privileges and Immunities, and just for good measure, the Fourth Amendment), tossing the proverbial poop against the wall to see what might stick. Unfortunately for him, none of it did. In affirming the trial court, the Fourth Circuit Court of Appeal ruled that nothing in the Constitution applied to imposition of a quota system such as that used by North Carolina’s DMV. Gravitte can easily be differentiated from Los Angeles’ experience in the civil lawsuit mentioned above by the simple fact that California has statutory restrictions on quotas—at least in Vehicle Code-related situations—where the North Carolina case discussed contact and citation quotas as they might relate to the U.S. Constitution. Whole different ball game.
So what’s the bottom line as to those California law enforcement agencies that seek to impose a “contact” or a “goal” requirement? First off, attempting to sneak it in by the back door by calling it a “contact” or a “goal” requirement and not what it really is, i.e., a “quota,” isn’t going to work. It is what it is. Labeling it something else only serves to insult the intelligence of the reader. Secondly, if we were to try to blend North Carolina’s Gravitte case with a California law enforcement agency’s citizen contact requirement, at least to the extent that the latter is a non-traffic situation and thus not governed by the Vehicle Code, we would have to conclude that a law enforcement agencies’ quotas (again, to the extent it refers to non-traffic Vehicle Code related situations) do not violate either California statutory law or, if Gravitte is to be followed, the U.S. Constitution. But that doesn’t mean it’s a good idea. Encouraging any form of police-citizen contact via imposition on a police officer of a minimum quota is just a bad idea, opening up any number of related problems. My position: Don’t do it. How a California (or 9th Circuit) court of law might respond, however, not being bound by the Gravitte decision, is yet to be determined.