The first time we drove, at night, to our Aspen Springs property from downtown Pagosa, I was slowing down at each road intersecting Hwy 160 looking for the correct turn.
We were pulled over by an Archuleta deputy, who stated I had “deviated several times”, meaning my driving pattern was (in his opinion) erratic — suggesting I was under the influence.
As I’ve mentioned before, I’ve been teaching the legal aspects of traffic stops to prosecutors and law enforcement officer for decades. I knew there was no legal basis for the deputy to have stopped me, and recognized the “buzzword” (“deviated”) he’d been trained to use to cover what was a “pretext” to stop me for some other reason (suspecting me of DUI, no doubt).
Following my own advice to others, I did not dispute the deputy at the scene; complied with all his requests (license, etc); and respectfully answered his questions — including that I never drink alcohol or smoke weed. He let me go without citing me for anything.
So I watched with both personal and professional interest the dash-cam video of the stop of Rob Keating by an Archuleta County deputy that was the subject of Bill Hudson’s recent editorial series. Based on that video, and the political context, the decision of the District Attorney to decline prosecution makes sense.
I would have made the same decision had the case come across my desk — regardless of the results of the blood test indicating that Keating was over the legal limit while driving. DUI cases like this one, where there is no traffic accident, are difficult to successfully prosecute for several reasons. So the evidence must be unequivocal, otherwise jurors are unlikely to convict.
A critical component of the evidence is the “driving pattern” — meaning how the vehicle was being operated that drew the attention of a officer. We’ve all seen cars weaving on the road and said to ourselves “that guy must be drunk”.
Jurors have the same life experience, so how a defendant’s driving appears on a video is a primary factor in their deliberation about guilt in a DUI case. Keating’s “driving pattern” in the video does not appear to the average citizen to be that of a driver “under the influence” (it didn’t even to my trained eye), so jurors would have doubts about his guilt.
That’s why Colorado law, like other states, provides that a person can be convicted of DUI based merely on their blood alcohol level. Though Keating’s exceeded the legal limit, in his case that may not have been sufficient evidence for a jury to convict him.
Jurors have an innate sense of fairness, and are reluctant to convict if they perceive an accused was treated unfairly by police. In Keating’s case the evidence of the “bounty” placed on him by the Sheriff would have come out in Court because of how the report of his arrest is written.
As quoted in Bill Hudson’s column, that report included the following:
“I recognized a sticker in the rear driver’s side window as possibly belonging to ROBERT KEATING and could not identify who was driving,”…
…and that after having lost sight of the vehicle he went to the area where he knew Keating lived to look for it.
Clearly, the fact, it was Keating’s vehicle was a significant factor in the deputies decision to conduct the traffic stop. That, combined with the “bounty”, could create in jurors’ minds the impression that Keating was being targeted for questionable reasons.
The unremarkable “driving pattern” appearing in the video would have given jurors a rationale to acquit Keating if they thought he was being singled out by the Sheriff’s office for political reasons. As would any experienced prosecutor, District Attorney Champagne recognized that likelihood, so he was ethically required to decline prosecution.
But the District Attorney’s decision not to prosecute criminally does not mean Keating will succeed in a lawsuit against the Sheriff’s office for violation of his civil rights. The federal statute Bill Hudson refers to in his column is 42 USC 1983, reads:
§ 1983. Civil action for deprivation of rights
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer’s judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable.
Mr. Hudson is correct that the recent U.S. Supreme Court case about suing police officers under that statute is more “nuanced” than the deputy thought. But it is not the open season on cops that it has been portrayed in some media.
That case (Thompson v Clark) only resolved one component of the requirements to maintain a lawsuit under § 1983. The case did not change that there still must have been a civil rights violation. Which brings us back to Keating’s case.
According to Hudson, Keating concedes the deputy had “probable cause” to make the initial traffic stop — so there was no constitutional violation there. He also concedes that he was “over the legal limit” to be driving — so his arrest was lawful.
That leaves just the question of whether Keating was improperly targeted by the sheriff, and if that constitutes a civil rights violation. The US Supreme Court addressed that issue in 1996, in the case of Whren v. United States.
To understand the Whren case requires context. As the “war on drugs” accelerated in the early 90’s it became a common police tactic to stop vehicles, in which the driver was suspected of drug activity, for any trivial traffic offense — even ones rarely, if ever, otherwise enforced.
In response to that police practice, some courts decided such stops were “mere pretexts” for what would otherwise be an unlawful traffic stop. So for several years, to justify certain traffic stops in court, officers had to demonstrate that they regularly stopped all vehicles for the same trivial violation.
That lead to a multiplicity of unintended consequences, not the least of which was that officers made many more traffic stops for “minor” violations simply to create a track record so that when/if they needed to justify a stop that resulted in a drug bust, they could do so in court. There was also disagreement among courts as to what constituted a “pretext”.
The Whren decision put an end to the “pre-textual stop” issue with a simple “bright-line rule”. It held that if an officer observed a vehicle commit a violation for which a vehicle could be stopped, that ended the inquiry. Whether the officer had some other ulterior motive was irrelevant.
The court reasoned that to decide otherwise would force judges to analyze subjective motivations and officers’ mental processes after the fact. It was much simpler, and clear-cut, to determine if a traffic violation had occurred, rather than what may have been going on in an officer’s head at the time.
In 2016, the Colorado Supreme Court cited to Whren in upholding the stop of a vehicle, targeted for a drug investigation, for a “lane violation”. So in light of Whren, the fact there was a “bounty” on Keating is irrelevant to whether he was lawfully stopped.
And there is another relevant Supreme Court case. US v Knotts states that, “A person traveling in an automobile on public thoroughfares has no reasonable expectation of privacy in his movements.” If you are driving on a public road, police can follow you without needing any reason, and wait for you to commit any traffic violation.
So even if there was a “bounty” on Keating does not change the fact the deputy could lawfully follow him until he committed a violation — which Keating apparently doesn’t dispute he committed.
If he admits the initial traffic stop was lawful, and that he was over the legal limit, that might poses challenges to a successful § 1983 lawsuit.