Phoenix Law Enforcement Association

Flawed Policy Threatens Citizen Safety

WHEELS OF CHANGE IN DRIVING POLICY MOVING SLOW
Greg Gibbs and Bryan G. Hanania
PLEA Representatives

Okay ladies and gentlemen, the photo cameras are killing us, and the Executive Staff and DAC are not helping.  It’s time for a quick policy review.  The policy (in addition to routine driving) identifies three types of driving:  Emergency Response, Traffic Enforcement, and Pursuit Driving.  When driving on a daily basis, you should ask yourself which mode you are in to see how Title 28 and Phoenix Police Department Policy affect you.

EMERGENCY RESPONSE
When responding to emergency calls a “maximum of 15 mph above the speed limit is authorized.” Now, we are all aware of this policy but let me be the first to remind everyone that this is not a “suggestion.”  The very mention of an “acceptable deviation from policy” sends the DAC into a tizzy.  In fact, even in a marked patrol vehicle with overhead emergency red and blue lights flashing and siren blaring, you may not drive more than 15 mph over the posted speed limit to any of the following situations:

  • An officer involved shooting even when the on-scene supervisor is requesting more units.
  • A fellow officer putting out a 906 over the radio. A supervisor requesting a 907.
  • Officers on-scene requesting additional units for a large fight.
  • Officers on-scene being assaulted at a large fight.
  • The fire department requesting a 907 for a subject with a knife.
  • A collision with a vehicle on fire and citizens still stuck in the car.
  • A DPS officer out with a felony warrant requesting an additional unit from Phoenix.
  • Any situation where you are simply a resource (K-9, rifle operator, etc.) regardless of the crime.

Now many employees do their best to abide by the 15 mph over policy.  However, let me remind you that “A maximum of 15 mph over the limit is authorized.” This means 16 and 17 mph over the speed limit are not authorized.  Seems simple enough but let”s hope your vehicle’s speedometer is calibrated.  You did calibrate your speedometer at the beginning of shift, didn’t you?  If you believe you are traveling 15 mph over the speed limit but your speedometer is not calibrated and you are actually traveling 16 mph over the speed limit – you are out of policy.  It appears the Phoenix Police Department is clearly more concerned that you keep your eyes firmly fixed on the speedometer as opposed to the traffic conditions.

Let’s not kid ourselves – the Phoenix Police Department’s driving policy is not even close to what Title 28 permits.  Let’s say you’re headed for an emergency radio call of a home invasion in progress.  You go down the check list in your head:

  • Authorized emergency vehicle  —  CHECK.
  • Violent crime and/or life-threatening situation in progress  —  CHECK.
  • Emergency lights and siren activated  —  CHECK.
  • Driving 13 mph over the speed limit (didn’t get your speedometer calibrated yet and you want to be sure)  –  CHECK.
  • Right turn on red without coming to a complete stop —  BUZZ!!

Although Title 28 allows this and requires you to slow down “…as necessary for safe operation” policy states you can make that right on red only after coming to a complete stop…” Congratulations!  You just got an out of policy maneuver.  As a side note, be sure to come to a stop BEFORE the crosswalk and not in it.  A.R.S. 28-645A3B covers this and the photo cameras are set to trip prior to the crosswalk.

TRAFFIC ENFORCEMENT
Let’s pretend (just for fun) you simply can’t drive the speed limit.  So when can you exceed the speed limit and do it by more than 15 mph?  Ladies and gentlemen, traffic enforcement is the place for you!  Policy allows you to exceed the posted speed limit (although it states “not normally exceed…”) to catch speeders.  Realistically you will have to speed to catch a speeder…it’s a no-brainer.  However, excessive speed, aggressive driving, reckless driving, and DUI seem more important and dangerous to the Department than little things like home invasions, armed robberies, shootings, and barricades!  Oh, and by the way, just make sure that this only occurs in “on view” situations.  Exceed the speed limit by more than 15 mph for dangerous traffic that comes out as a radio call and you are out of policy!  Of course, this is not stated in Operations Orders; you are just supposed to know it.

Maybe traffic isn’t your cup of tea.  Why not get on a detail where the Secret Service and the President of the United States require your detail’s resources?  Then you can roll code-3 (contrary to Title 28) to a non-violent, non-crime, in non-progress, and a non-life-threatening situation simply because the President is involved.  I looked for the “presidential resource” exemption in A.R.S. 28-624A but I couldn’t find it.  Surely there is a federal code that covers this but similar to immigration…it’s not our job to use federal code.

UNMARKED VEHICLES
So what if you don’t drive a marked unit on a daily basis?  Does this mean you cannot speed at all (bummer)?  Actually there is no exception in our policy for unmarked vehicles (even on police business like say, surveillance) to break the traffic code unless you are equipped with the appropriate equipment.  Policy defines an authorized emergency vehicle as having “identifying decals” which unmarked vehicles obviously do not have.  Title 28 allows for an authorized emergency vehicle to be unmarked but not our policy.  Policy defines emergency response driving as, “operation of an authorized emergency vehicle,” and therefore must be marked.  So, SAU, MOB and Gang Squad, do not ever respond to any type of call with your emergency lights and siren activated!  Although you are covered by Title 28, you obviously are not responsible enough to operate under state law, thus our policy forbids this type of action.

What does this mean?  There is no Title 28 or policy justification for a police vehicle (without lights and siren) to go through a red signal or exceed the speed limit regardless of the circumstance – like surveillance.  How can this be when the DAC routinely finds these violations in policy?  Under the guise of “police response” the violations are justified — this is, as long as they are less than 15 mph over the posted speed limit and there was no collision.  Before you ask, a detective responding to a scene (homicide, shooting, fatal collision, etc.) could be considered a “police response” but the DAC has deemed these speed violations (for example 12 mph over) as out of policy because the scene is secure.

The DAC has also ruled that officers are in policy while responding to emergency radio calls without their lights and siren if they are traveling under 15 mph over the speed limit.  Without lights and siren they are now driving in routine mode and according to policy “…will comply with vehicle laws contained in ARS Title 28 and City Codes at all times…” This means you have to drive the speed limit like any other citizen even if you’re responding to a call.  I couldn’t find that exemption in Title 28 that permits officers (not rolling code-3) to not receive a citation for 77 mph in a 65 mph zone (when a citizen would) just because they are going to a call.  I also could not find in Title 28, or anywhere else in state law, that says the decisions of the DAC can supersede the laws of the State of Arizona!

We’ve all seen the citizens hit their brakes as they approach the cameras on the freeway and then gun it when they pass the camera.  Surely the citizens will understand when officers running code-3 do the same thing.  Here’s the moral of the story:  If you’re going to do what the public wants and expects of you…do it away from the cameras.  The Department does not care if you get in trouble so why risk it for citizens, other officers, fire fighters, and supervisors?

FAIRNESS STANDARD
Speaking of citizens…they expect a standard of fairness for officers.  Basically, if the public would get a ticket for a violation, so should officers (I’m talking about traffic violations with no Title 28 exemption).  This is one of the core reasons for the existence of the DAC.  I have personally seen several collisions where a citizen was listed as being “at fault” and a true accounting of the collision shows the officer was actually at fault.  When this happens the officer is issued a citation when the collision involves injury or is over the minimum dollar amount for damage.  In this way the DAC shows the public that Phoenix Police Officers are not above the law.  So far so good?  Well, let me assure you that if the officer is listed as being at fault and it is later discovered the citizen was actually at fault…the Department will not go issue the citizen a citation.  Sounds pretty fair, right?  Just remember the Department is concerned with the perceptions of the public but not with your perceptions!

PURSUITS
Now for a word on pursuits — we all know we can pursue (marked units only) for violent felonies with an unknown suspect (this is different than what Title 28 allows).  The DAC has seen an overwhelming increase in the number of non-violent and misdemeanor offenses turn into aggravated assaults on officers and therefore…pursuit.  While these are being upheld so far let me just say that the DAC is scrutinizing the, “he tried to run me over,” pursuits.  The DAC is concerned that officers are placing themselves in a situation that could have been avoided with sound tactics just so a pursuit can be initiated.  Remember the DAC arm-chair quarterbacks your actions with 20/20 hindsight and all the facts you may not have had at the time.

WHAT YOU SHOULD DO
If you do find yourself the subject of a driving investigation, remember to write your own memo.  Cutting and pasting your partner’s memo and presenting it as your own helps no one…yourself included.  Also remember to be completely honest.  Many citizens and officers may not realize that photo cameras often have 24/7 streaming video.  Investigators will look at what happened before the violation/collision and after the incident.  If the video is nowhere close to the officer’s account of what happened, there is a problem.   Yes, believe it or not, officers have attempted to “outsmart” investigators only to find out that, in addition to the still shots, there is streaming video of the incident.  Enough said about that.

YOU DON’T HAVE TO LIKE THE POLICY, AND YOU DON’T HAVE TO AGREE WITH IT BUT YOU ARE EXPECTED TO ADHERE TO IT.

Lastly, PLEA brought up the issue of photo cameras to the Executive Staff and the forthcoming problems (aka discipline) they would create back in November.  Several policy changes were proposed to include the adoption of the Department of Public Safety’s driving policy while upon the highway.  This would allow us to exceed the speed limit by 25 mph on the highway only.  We also agreed with a summary review of all photo citations to be done by the Traffic Bureau’s South Lieutenant, prior to an investigation and submission to the DAC.

Both of these provisions would have reduced investigations by over 80%.  Add up the time it takes for officers to write memos and for supervisors to author the investigations.  Now multiply that with the over 200 photo enforcement citations that have gone in front of the DAC since November.  What a time savings this would have been!  How much more time could officers and supervisors alike have been on the street fighting crime and serving our citizens?

To put it simply, Executive Staff does not care.  They do not care about officers receiving discipline for doing what is expected of them.  Executive Staff is concerned about supervisors spending hours upon hours writing meaningless investigations, and they have made it a priority to ease the workload on the DAC instead of developing a viable driving policy.  They would rather live with the mass diversion of manpower from serving the public than re-vamp the driving policy.  None of them can make a decision on this issue and apply common sense and instead rely on the advice of an attorney because of a perceived increase in liability.  If they did care, it would not take 6 months to take action.  It is our responsibility and obligation to drive in a safe manner and with due regard for the public.  It is management’s responsibility to give us a workable policy based on common sense to abide by.  Hopefully a decision will come before another 6 months has passed.  Don’t hold your breath though.  Management’s decision making process is operating 15 mph under the speed limit!