ExECuTivE SummARy REPoRT

San Bernardino Towing Policies

Community Research and Recommendations for Action

1441 N. D St., Ste. 208 San Bernardino, CA Phone: 909.383.1134 Email: tom@icucpico.org Web:www.icucpico.org

Findings
Immigrants living in the city of San Bernardino feel that they are being preyed upon by unscrupulous owners of towing companies and by city policies that seek to address the citys financial crisis by targeting undocumented drivers. Hundreds of testimonies show how SBPD has engaged in heightened traffic enforcement in communities in which predominately poor and minority residents reside. Latino residents often tell of being pulled over and having cars impounded as many as five times in one year, while residents in neighborhoods north of the 30 freeway have no similar experiences. San Bernardino policy of obligatory 30 day impoundment of vehicles means huge economic benefits for owners of towing yards while in other California cities impoundment policies are much shorter because city officials recognize the hardship this causes local families. Towing and per-day impoundment fees are excessively high and lead to dire economic consequences for families. City and private profits take precedence over the well-being of local residents. Towing fees of $140 in Cathedral City translate into $250 in San Bernardino. Daily impoundment fees as low as $20 are $45 in San Bernardino. The cost for a family in San Bernardino for a 30 day impoundment easily exceeds $1,500.00more than many families earn in a month. Consequences for families include: The loss of their employment Loss of homes and apartments Children miss school Economic impact for the entire community

Families repeatedly tells stories of abuses by private towing companies that include: Theft of personal belongings from impounded vehicles. Refusal to accept payment with credit, although this is required by law. Refusal to provide a receipt for payment at towing yards. Refusal to allow families to see their car while in impoundment. Sales of vehicles in auction before the impoundment period has ended. Charging families for impoundment fees even after the vehicle has been auctioned. Treatment by towing company employees that is oppressive and disrespectful.

Recommendations for Action

More important than who runs the towing yards is HOW these are run and the existence of clear and fair policies. Fees for towing and the daily impoundment fees need to be reduced. Alternatives to obligatory 30 day towing need to be implemented, insuring that the decision to either impound or store a vehicle may only be made when the vehicle presents a traffic or public safety concern. A clear city policy needs to be enacted stating that vehicle tows are not mandatory. An investigation of the practices of private towing companies needs to be carried out. An investigation of San Bernardino city towing practices needs to be carried out to insure that vehicles may not be stopped for the sole reason of determining whether the driver is properly licensed.

A New SJPD Impoundment Policy to Improve Police-Immigrant Relations

I. Introduction Thousands of San Jose residents are being negatively impacted by checkpoints and the impoundment policies currently being practiced by the San Jose Police Department (SJPD). Entire families are jeopardized when their cars are automatically but unnecessarily impounded for 30 days. Families with small children are forced to walk home to isolated and unsafe neighborhoods. The average cost of a 30-day impoundment is over $2,000. Drivers frequently do not retrieve their vehicles because the cost of the impoundment is more than the value of the vehicle. Families are deprived of a way to get to work or to get their kids to school. Poor immigrant drivers and their families are disproportionately affected, punishing them more than DUI offenders who can pick up their vehicles the next day. Undocumented drivers charged with driving without a license can get a misdemeanor conviction (or two if out of fear, they fail to appear) which can lead to the denial of jobs, family sustainability, and immigration remedies. Impoundment practices increase the disproportionate detention of people of color and dramatically increase fear in the immigrant community. Fearful to make contact with law enforcement and report crimes, such impoundment practices compromise public safety for everyone in San Jose. San Jose is one of the few cities that allow drivers without a license a 30 minute time frame to contact someone with a valid license to pick up their vehicle at checkpoints. Nonetheless, most detainees cannot take advantage of this policy and hundreds of immigrant families lose their cars on site each year.

II. Background In 1995 the Safer Streets Act (CVC 14602.6) was implemented in the State of California. As a result, California Vehicle Code 14602.6(a)(1) permits but does not require mandatory 30-day impounding when driving with a suspended or revoked license or driving without ever having been issued a license from any state or foreign country. These offenses are considered serious and potentially dangerous to the community.

These 30-day impoundments are not mandatory for those driving without a license. In 2005 in the Ninth Circuit case Miranda v. City of Cornelius, the court found that impounding cars solely because the driver is unlicensed is an unreasonable seizure in violation of the 4th amendment and therefore unconstitutional. Under this decision, a reasonable seizure of a vehicle could include instances when a vehicle impedes traffic or threatens public safety, but a 30-day impoundment is not required. Similarly, in the 2006 case People v. Williams, the California appellate court stated that a car could be towed for driving without a license if there are extenuating circumstances such as the vehicle being illegally parked, a hazard to others, or a high risk target for vandalism and theft. Similarly, consistent with these two community caretaking decisions, there is no 14602.6 offense if a person is driving With a current license from another state or country With an expired license from California, another state or country Without a license but was issued a license before in California or any state or country at any time In such instances the vehicle should not be impounded for 30 days. Also, if a licensed driver is present to drive the car, there is no community caretaker concern and the vehicle should not be impounded at all. III. Impoundment Policies by Cities in California A large number of cities in California have championed revisions to their impoundment policies. Cities have already succeeded in changing the way local jurisdictions impound cars so that a more sensible and balanced approach can ensure public safety. These changes resulted in large part from the self interest of police departments wanting to strengthen and maintain the trust of community in order to protect not only the most vulnerable communities but the whole city. Local jurisdictions received strong support from local community leaders who were relentless in seeking an impoundment policy that demonstrated city support and commitment to protect and value low income communities of color. The following are policies that were implemented in different cities in California that consider and balance the hardships that car impoundments create while they also acknowledge their responsibility to protect everyone regardless of race, class, or legal status.
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City/Date

Time allowed to pick up car by a licensed driver

Oakland 2010

Vehicle parked in a safe and legal space without any impoundment Officers are to refrain from impounding car and allow for people to park in a safe and legal location, signing a waiver

Impoundment with immediate release (no mandatory 30-day impoundment required) If impounding is necessary then allow for immediate release

Berkeley 2010

Baldwin Hills 2010 San Francisco 2009

20 minutes to pick up vehicle

Cathedral City 2009

15-20 minutes for licensed driver to pick up vehicle

Huntington Park 2007 Bell Gardens 2007 Maywood 2005

Officers are to refrain from impounding cars and allow them to park

Impound for 30 days for more serious traffic violations but for those driving without a license impound for 1 day Impound with immediate release If car has not been impounded in the past 6 months, then car may be immediately released Impound for 30 days for more serious traffic violations but for those driving without a license impound for 1 day Impound with immediate release Impound with immediate release If no safe place is found to park the car, then the car can be impounded but may be immediately released

IV. Key Impacts of the Current San Jose Impoundment Policy San Jose residents and particularly immigrants are affected by the current SJPD impoundment policy in three critical areas: public safety, impact on livelihood, and disproportionality of impact on communities of color. Public Safety. The current impoundment policy in San Jose jeopardizes the safety of all its residents by disproportionately punishing low income communities of color, resulting in community distrust of law enforcement. Low income communities--including and especially the immigrant community--are less likely to report an accident or hit and run if they know that there is a possibility of getting their car impounded and paying over $2,000 in fines. Not only does impounding cars of unlicensed drivers jeopardize the trust between community and law enforcement, it also diverts time and resources away from fighting violent crime. Impact on Livelihood. Families need their cars to go to work and to bring their children to school. Family livelihoods usually depend on their vehicle. Those driving without a license face the detrimental consequence of not having a car for 30 days. Although drivers are given 30 minutes to call someone with a valid drivers license at checkpoints, cars are still being impounded in large numbers there and at patrol stops sometimes for equipment violations that do not require impoundments. Not only are cars being taken away but the overwhelming fines are devastating families financially. Misdemeanor convictions can be an even larger obstacle in gaining employment. Disproportionate Impact on Communities of Color. In 2008 the City of San Jose impounded 14,932 vehicles. In 2009 there were 12,582 impoundments, and as of September 2010 the city had impounded 9,123 for the year 2010. These numbers are astronomically high when we look at the demographics of San Jose. About three-fifths of the San Jose population is immigrant or the children of immigrants, and they are the biggest victims of current impoundment policy.

V. SIREN Recommendations for a New Impoundment Policy SIREN makes the following policy recommendations on practices that could regain the trust of the immigrant community.

A. Follow Best Practices within the Oakland Impoundment Policy Taking into account impacts on local residents and hardships to the immigrant community, SIREN concludes that the most sensible policy is that of Oakland. With its newly implemented impoundment policy Oakland requires that police officers allow an unlicensed driver the opportunity to (1) relinquish the vehicle to a family member or acquaintance on the scene that is in possession of a valid drivers license, or (2) leave the vehicle on the scene after a liability waiver is signed. If impoundment is ultimately necessary for safety reasons, then follow the lead of Oakland, Huntington Park, Bell Gardens, Baldwin Hills, and Maywood and make the car available for immediate release with a licensed driver. B. Provide More Flexibility in the Current SJPD Checkpoint and Patrol Impoundment Policy SIREN also recommends that during patrol stops when there is no safe or legal place to park as outlined in the Oakland policy then officers should allow drivers 30 minutes to contact someone with a valid drivers license. This 30-minute rule is the current policy for checkpoints in San Jose. If there is no one available to pick up the vehicle within those 30 minutes then the last resort should be impounding the vehicle, with immediate release once a licensed driver is available. At the sobriety checkpoints the SJPD has no statutory requirement to limit the time to 30 minutes for an unlicensed driver to reach a licensed driver and have them reach the checkpoint. Either a cutoff time should be applied depending upon the length of the checkpoint or, more fairly, each driver should be given additional time (say 60 minutes) for the safe driving away of the vehicle. The vehicle should be released immediately from storage once a licensed driver appears on behalf of the unlicensed driver. C. No Need to Request the Driver License at Sobriety Checkpoints The San Jose Police Department DUI Checkpoint Manual relies upon two principal sources, the Use of Sobriety Checkpoints for Impaired Driving Enforcement issued by the National Highway Traffic Safety Administration (NHTSA) in 1990 and the 1987 California Supreme Court case Ingersoll v. Palmer. Neither of these procedural guides recommends combining detentions for lack of a drivers license with detentions for driving while drunk. Given the deep hardships and harsh consequences to immigrant families once cited for driving without a license, in future grant applications to the California Highway Patrol it
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would make strong policy sense to not waste so much time on unlicensed drivers but rather pursue the local residents who are the main focus of the grant: persons who have a reasonable suspicion of being drunk as they drive. This action and the resulting radical reduction in impoundments at checkpoints would go a long way in re-establishing trust in the immigrant community and reducing the number of sober minorities who are caught in the sobriety checkpoint dragnet and lose their cars and their livelihood. Nothing in San Jose resembles an immigration sweep or raid more than the SJPD sobriety checkpoints, and nothing causes more fear in the community. D. Mutuality in the Acceptance of Drivers Licenses Currently the San Jose Police Department does not have a written policy with respect to accepting valid drivers licenses from other states and nations. The SJPD should review this unwritten policy that in fact harms local residents with valid licenses who may be in a life transition. Clarifying in written policy that valid current drivers licenses from other states or nations will be acceptable in San Jose would avoid the harmful negative consequences that impoundments cause in the community. These drivers have been proven to be safe and reliable and should be given the benefit of the doubt instead of having their cars removed from their households. E. Consider the Impact of Family Hardship in a Period of Hardship Currently nothing in SJPD procedures for impoundments takes into account the special hardships of low-income families, much less the compounded hardship of low-income immigrant families. The SJPD should consider family hardship when deciding whether to impound vehicles. This could be done for example by showing that family members are currently receiving a public benefit such as subsidized school lunches at the time of paying the vehicle release fee. The vehicle release fee itself of $196 in San Jose is out of reach for many low-income families. It creates a barrier to even picking up many older cars. The fee should be tied to actual proven costs of impoundment and lowered for any resident proving hardship. The US Citizenship and Immigration Services (USCIS) just issued a complete fee waiver for persons on public benefits. If the federal government can do so, San Jose can also take this burden upon poor families into account.

F. Improve Communication and Information Regarding Impoundments According to the California Vehicle Code, the police department must notify persons subject to impoundment that they have a right to challenge an impoundment. However, it is questionable that this practice is being followed, or provided to immigrants in key languages. Information provided must be made language accessible so that immigrants and all residents know that they have the right to impound hearings where they can arrange a time to present their case as to why their vehicle should be released. In addition, accountability demands that the number of impounds per type of case and a policy narrative justifying the reasoning for impounds be provided to the public. These are not currently available. For example, in trying to do research on car impoundments the SJPD was unable to provide the citation codes for impoundments nor the reasoning for impounding vehicles.

VI. Conclusion Services, Immigrant Rights and Education Network wants to work with the City of San Jose to ensure that we develop and implement an impoundment policy that does not punish vulnerable communities, does not jeopardize the relationship between community and law enforcement, and does not create undue fear in the immigrant community. SIREN hopes that the above policy recommendations will be taken seriously in the mutual goal of improving public safety in the City of San Jose. By impounding vehicles for serious offenders who endanger our city, such as those driving under the influence, and not impounding the vehicles of low-income minorities and immigrants, families will remain stronger; individuals will become more self-sufficient; community-police relations will grow friendlier; and San Jose will be a safer place to live for all of us.