OMAG's Police Liability Update (May 2024)
The ABLE Project
Years of academic research and on-the-ground experience have shown that effective, active bystandership can be taught. The Center for Innovations in Community Safety, partnering with global law firm Sheppard Mullin, has created ABLE* (Active Bystandership for Law Enforcement) to prepare officers to successfully intervene to prevent harm and to create a law enforcement culture that supports peer intervention.
ABLE training provides practical, scenario-based training for police agencies in the strategies and tactics of police peer intervention. ABLE is a national hub for training, technical assistance, and research, all to create a police culture in which officers routinely intervene—and accept interventions—as necessary to:
Prevent misconduct
Avoid police mistakes
Promote officer health and wellness.
Are you interested in ABLE training? If so, please contact OMAG Law Enforcement Specialist Kevin Katz and visit www.omag.org/able to learn more!
*ABLE Project, Project ABLE, ABLE, and Active Bystandership for Law Enforcement are trademarks of the President and Directors of Georgetown College.When is it OK to Impound a Vehicle on Private Property?
In recent weeks, OMAG has received many questions about impounding a vehicle from private property. So- I thought it might be helpful to rerun an article that was published in the July 1, 2022 issue of the PLU. The law as stated in the July 1, 2022 article has not changed. Interestingly, on December 15, 2023, the 10th Circuit issued United States v Ramos, 88 F.4th 862 (10th Cir. 2023), a published opinion, which also addressed impounding a vehicle from private property.
The Ramos opinion arose out of a federal, criminal case out of Frederick, OK, and further affirmed the discussion set out in the July 1, 2022, PLU on the issue of impounding a vehicle from private property. United States v. Venezia, 995 F.3d 1170 (10th Cir. 2021) is a Tenth Circuit opinion that was issued on May 3, 2021, which answers this question. The relevant facts in United States v. Venezia are these:
On January 2, 2019, at about 9:00 p.m., Officers Tubbs and Jewkes, two members of the Lakewood PD were conducting a routine patrol in Lakewood, Colorado. They observed an Audi pull into the parking lot of a motel and then drive to a gas station across the street. Along the way, the driver (who was later determined to be Venezia) committed a traffic violation by failing to signal a turn. The vehicle soon returned to the motel parking lot, and as it did so, the officers observed that the front and rear license plates were not properly affixed to the vehicle’s front and rear bumpers.
The officers ran the license plate number through their identification systems, which revealed the vehicle’s registered owner was a person named Luis Cuello. Venezia parked the vehicle in the motel’s private lot. The vehicle was legally parked, was not obstructing traffic, and did not pose an imminent threat to public safety. The motel and its parking lot were in a high-crime area of Lakewood. The officers approached the vehicle based on the illegal turn they had observed. The officers asked Venezia, the driver and sole occupant of the vehicle, for his license, registration, and insurance. He did not have these things, or a bill of sale.
Venezia told the officers his license was suspended; the officers confirmed his license had been revoked. Venezia presented the officers with his Colorado identification card, from which the officers determined he had an outstanding misdemeanor warrant for failure to appear on a traffic ticket. When asked about Cuello (the vehicle’s registered owner), Venezia stated he did not recognize the name. He told the officers he had recently purchased the vehicle from a person named Dustin Estep but had been unable to insure or register it due to the holidays. The officers contacted their communication center in an attempt to reach Cuello by telephone, but the attempt was unsuccessful. The officers arrested Venezia on the outstanding warrant and impounded the vehicle. Venezia objected to the impoundment.
Although he was not a guest at the motel, Venezia indicated that an individual he referred to as his brother was staying there. The officers did not inquire whether Venezia’s brother (who turned out to be a friend, Christian Kelly) could take possession of the vehicle. The officers also did not ask anyone working at the motel for permission to leave the vehicle in the motel parking lot.
During a routine inventory search of the vehicle conducted as part of the impoundment, law enforcement found drugs, drug paraphernalia, a gun holster, and ammunition. Venezia was released on bond, after which he was able to establish his ownership of the vehicle. Venezia was charged with possession with intent to distribute methamphetamine under federal law. He filed a motion to suppress and argued that the impoundment of his vehicle violated the Fourth Amendment, and as such, the drugs and other evidence found in the inventory search should be suppressed as fruit of the poisonous tree.”
At a suppression hearing, the District Court found that Venezia was the vehicle’s owner and that he had recently purchased the vehicle from Estep, who had recently purchased it from Cuello. But the Court further found the officers had no information available to them, at the time of their encounter with Venezia, that would have alerted them to this chain of title. The District Court denied the motion and Venezia pleaded guilty with a right to immediately appeal the denial of the motion to suppress. He timely filed his appeal to the Tenth Circuit. Ultimately, the Tenth Circuit reversed the District Court and ruled that the impoundment violated the Fourth Amendment.
In its opinion ruling in favor of Venezia, the Tenth Circuit explained that it had clarified that when a vehicle is not impeding traffic or impairing public safety, impoundments are constitutional only if guided by both 1) standardized criteria and 2) a legitimate, community-caretaking rationale in United States v. Sanders, 742 F.3d 461 (10th Cir. 2014). In this regard, “standardized criteria” is found in department policy because the department policy provides boundaries on officer discretion in conducting impoundments.
In Venezia’s case, the police department had a policy that required when 1) the driver of a vehicle does not have a valid driver’s license, 2) the car is registered to another person, and 3) the officer is unable to verify that the driver has permission to drive the vehicle, the officer is encouraged to impound the vehicle. The Tenth Circuit noted that this policy was sufficient to establish the first prong of the Sanders analysis and that the officers acted according to the policy. In addressing the second prong of the Sanders analysis, the Tenth Circuit noted that there are five factors to be considered when evaluating whether the officers complied with the community caretaking rationale.
They are: (1) whether the vehicle is on public or private property; (2) if on private property, whether the property owner has been consulted; (3) whether an alternative to impoundment exists (i.e., is another person capable of driving the vehicle); (4) whether the vehicle is implicated in a crime; and (5) whether the vehicle’s owner and/or driver have consented to the impoundment.
The Tenth Circuit found that all five of these factors weighed in Venezia’s favor. First, the vehicle was on private property (a motel). Second, the officers did not contact (or attempt to contact) the property owner (motel manager) about whether the vehicle could remain on the property. Third, the vehicle was not implicated in a crime. Fourth, the vehicle’s driver (Venezia) objected to the impoundment and the officers were not able to contact the person they believed to be the vehicle’s owner (Cuello). Fifth, an alternative to impoundment existed: the Tenth Circuit stated that the officers could have left the vehicle in the parking lot and continued to attempt to contact Cuello, the person they believed to be the vehicle’s owner. The Tenth Circuit stated it was not reasonable for the officers to believe that Cuello could not be reached when they only tried for 45 minutes to reach him.
In sum, the Tenth Circuit ruled that the officer’s decision to impound the vehicle was not guided by a reasonable community-caretaking rationale as required under the second prong of the Sanders analysis. Thus, the Tenth Circuit found that the impoundment violated the Fourth Amendment. So, when you are faced with whether to impound a vehicle on private property, the Sanders analysis and factors should guide your decision.
Cybersecurity Grants
Are you using Yahoo, Gmail, or another free, personal email for your official government business? Is your email address provided by your local telephone and Internet company?
OMAG's biggest source of cyber claims comes from the hacking of insecure, free, personal email services. We also get frequent questions from frustrated cities and towns if a clerk or staff member took their city email password with them and the city can't get it back. Finally, OMAG is always encouraging cities and towns to be compliant with the Oklahoma Open Records Act and give city and town staff the ability to keep their personal email accounts personal, and their work accounts separate.
Each city and town in Oklahoma qualifies for a free .GOV domain courtesy of the federal government. After OMAG helps you get it setup, we'd also like to pay for the first year of each of the following:
A professional, secure email account, with support provided by a third-party company
A simple, yet attractive, professional website that is easy for you to edit and update
email cybersecurity training and simulation
OMAG is using Microsoft's online services, called Microsoft 365 for email, and our website is hosted by a company called Squarespace. We also use a service that trains OMAG staff to be wary of spammers and scammers and to protect our organization from hackers. We're so sure about the effectiveness of these products, that we want to help some of our smallest members start their IT evolution by getting 50 towns that are still on Yahoo and similar services moved to a modern, professional solution that adheres to state standards, provides minimum cybersecurity, and protects these communities from hackers.
Year 2 costs for the city include nominal fees per user per year for email, an annual charge for website service, and an investment in cybersecurity training. OMAG strongly recommends that towns invest a little bit of money in doing IT right, so let us help you with the first year, free. Sign up today, by visiting www.dotgov.omag.org/. Apply for the grant by clicking "Sign up now!" If you have any questions, just let us know!
Storm Preparedness
Longer days, glorious sunshine, and fresh cut lawns. Storm season is upon us. Here at OMAG, we want to help you prepare and keep your property as safe as possible. Should your City or Town have to deal with Mother Nature’s fury, we want to provide you with some information that can assist with your recovery.
Looking ahead: The weather has a large impact on everyone during the spring season and one of the ways to prepare is to monitor storm predictions. The Storm Prediction Center (https://www.spc.noaa.gov/products/outlook/) and Mesonet (https://mesonet.org/) are great resources to monitor severe weather predictions. We know our meteorologists in Oklahoma have a few misses but overall, they do a great job providing warning on those dreaded days. Pay attention to OMAG social media during storm season as we will do our best to post the latest forecasts to keep you informed. If possible, move autos to a covered area to avoid hail damage.
In the moment: Should severe weather strike your municipality; we know there are several things that need to be addressed. OMAG will do our best to contact municipalities that have been struck by a tornado or other severe weather event we deem necessary to help assist in the claims process. If we can get one building or location set up as a claim, we can assign our appraiser and get them out faster. The quicker they see the damage, the faster we can get you on the road to recovery.
Don’t hesitate to contact the OMAG Claims Department or Insurance Services should you have questions about property damage restoration or mitigation. We can provide some options on who to contact and assist in those areas.
Hopefully we all get through this season without any major events, but there is a high probability that we will have one of those unsettling days. When severe weather happens, take your storm precautions, and know that OMAG will help your municipality get back on its feet. Stay safe everyone!
The Power of "WHY": Inspiring Purpose
Simon Sinek's insights shine a light on the importance of understanding the "why" behind our actions and decisions. According to Sinek, the clarity of "why" enhances the significance of "what" we do. The why appeals to emotions and motivates individuals toward a common purpose.
Many leaders find comfort in defining the "what" – the tangible tasks and objectives to accomplish. However, his Golden Circle emphasizes the importance of communicating from the inside out. Starting with “why,” the mission or purpose, cause, or belief. Next, "how," the process or specific actions taken to realize the "why.” And finally, the "what," the results or services.
In giving focus to the "why," leaders can more effectively inspire team members, creating a purpose that aligns with the municipal mission and overarching goals. With a clear "why," the "how” and the "what" become more than just steps in a process.
Fostering an environment where every team member is aligned with the "why" can lead to more meaningful contributions, stronger collaboration, and a more fulfilling workplace culture for all.
The first step is to ensure that every team member understands the common "why." This goes beyond a one-time announcement; it needs to be a consistent message that is integrated into all aspects of your team's operations. Use meetings, newsletters, and team-building activities as opportunities to reinforce the "why."
By connecting team members to a common "why," you create a unified and motivated team that is driven by a shared purpose.
When Mowing Takes Precedence
Spring brings warmth, excitement, and noticeable growth in public spaces like parks, cemeteries, and along roadsides. This seasonal change burdens small communities with additional tasks. Typically, public works departments bear the brunt, especially when there's no dedicated parks staff, leaving utility employees to fill the gap. Consequently, for seven months, these employees shift focus from crucial water and wastewater management to repetitive mowing, straining the utility infrastructure. Essential maintenance and repairs get delayed, prioritizing landscape upkeep over functional sustainability.
The neglect of utility services due to deferred maintenance becomes apparent, fostering a reactive rather than proactive stance. Postponed routine work piles up, only addressed after the mowing season, squeezing a year’s maintenance schedule into a mere 4 to 5 months.
Visually, unkempt parks and cemeteries create a negative image for the community, underscoring the need for a balanced approach to mowing and utility maintenance. The apparent solution — hiring dedicated mowing personnel — often clashes with budgetary constraints. Part-time hires and temporary services offer partial solutions but are hampered by availability, especially in smaller communities like those in Oklahoma.
Exploring partnerships with local lawn services for periodic assistance or tapping into the local student workforce for summer jobs could offer flexible, cost-effective solutions. These approaches not only address the mowing challenge but also open avenues for maintaining continuous attention on utility infrastructure through innovative scheduling and task management.
No single strategy will suit every community, but through inventive problem-solving, it's possible to find a balance that allows for both aesthetic upkeep and the sustained operation of essential services.
Underground Utilities
In recent years, underground facilities have been struck and damaged regularly by OMAG members. An underground facility strike is when a utility line buried underground such as water, sewer, gas, communications, and electric is hit and damaged during the excavation or backfilling process. Regardless of what caused the damage, putting an end to these underground facility strikes will save time and money.
Underground facility damage can be reduced by:
Contacting OKIE811 before all excavations and document all facilities have been marked before excavation starts.
Pothole and locate all facilities that fall within 4 feet of the excavation.
Take detailed pictures of proposed excavation, facility markings, potholing, and backfill.
All employees excavating near underground utilities are responsible for taking steps to prevent damage. You must know what steps you need to take, what the law requires, and especially when facility damage is not your fault. You can get all this information by taking advantage of free training offered by OMAG. Save yourself time and money by protecting underground facilities so contact OMAG risk management for the next available Excavator Certification Training.
OMAG In Action (Volume 9)
How Can Your Town or City Help A School District?
Legislation that took effect in July 2023 created a three-year pilot program which provides school districts in the State with money to hire a school resource officer(s) and/or to make necessary security upgrades. This is known as the School Resource Officer (SRO) Program. As a result of this SRO Program, School Districts may be looking to local Police Departments to provide a School Resource Officer for their schools.
If this is the case in your City or Town, there are some things to consider when deciding how your City or Town’s police department can best assist and support the School District under this new SRO Program. These things are listed below in no particular order; they are each important.
First, your City or Town should reduce to writing whatever agreement it reaches with the School District regarding a school resource officer(s): a well-written contract should spell out your City or Town’s and the School District’s expectations and obligations. Your municipal attorney should be involved in this process, of course.
Second, identify what kind of law enforcement officer will fill the role of SRO. The SRO Program legislation defines an SRO as a “law enforcement officer with sworn authority and training in school-based law enforcement and crisis response.” Under Oklahoma law, there are two kinds of “law enforcement officers with sworn authority:” a 1) peace officer and 2) a reserve peace officer. It is possible the School District does not appreciate the distinctions between a reserve peace officer and a peace officer, although each of these positions meet the SRO Program’s definition of an SRO. Under Oklahoma law, a peace officer is a person who is paid by a law enforcement agency to regularly work more than 25 hours per week enforcing local and state laws and ordinances. A person can be hired to and work as a peace officer before he/she obtains his/her peach officer certification from CLEET, but only for a period of up to six months. By contrast, while a reserve peace officer has the same authority as a peace officer, under Oklahoma law, a reserve peace officer can be paid or unpaid, AND he/she can only perform his/her duties for no more than 140 hours/month, AND he/she must have obtained his/her reserve peace officer certification from CLEET prior to being appointed as a reserve peace officer. So, an agreement with the School District on what kind of law enforcement officer will fill the role of SRO is necessary.
Third, regardless of whether the SRO is a peace officer or a reserve peace officer, it is critical that the SRO be the City or Town’s employee, not the School District’s employee. Why? If your City or Town issues a police commission to an individual, your City or Town is legally liable for the actions that person takes within the scope of his/her employment with the City or Town. Therefore, your City or Town should have the authority over that individual that exists in the “usual” employment relationship, such as the authority to supervise, train, discipline, assign duties, etc. A police commission gives the holder of the commission certain legal authority, such as the authority to seize someone and to use force while doing so. A police commission authorizes the individual holding it to carry a firearm into a school (which is a place where “regular” citizens cannot carry a gun). This is so, regardless of how the individual’s salary/wages are funded. So, knowing that your City or Town is legally liable for an arrest, use of force, detention, etc., made by an individual to whom your City or Town has given a police commission, why would you NOT want the authority to supervise, train, discipline, assign duties, etc.?
Fourth, the SRO Program legislation requires that an SRO employed via the SRO Program shall successfully complete law enforcement active shooter emergency response training given by the Council on Law Enforcement Education and approved by the Oklahoma Department of Public Safety. The SRO Program legislation does not identify a date or timeframe by which this training must be completed. Again, an agreement with the School District on this topic is necessary.
Fifth, the SRO is in place to enforce state and local law, not the School’s policies or procedures. This needs to be addressed with the School District, as well. For example, when student Billy Bob shows up at school wearing clothing that conflicts with the School’s dress code, the School District, not the SRO, should address this with Billy Bob pursuant to its policies and procedures. The School’s dress code is NOT state or local law which the SRO is in place to enforce, generally speaking.
Finally, it is worth noting: a School District can create its own “School Police Department” pursuant to the Oklahoma Campus Security Act. So, contracting with a City or Town to provide the SRO is not the only way to have an SRO in the School District. This article is intended to address things a City or Town should consider when deciding how it can best assist and support the School District under this new SRO Program.