In this photo collage, a recent photo of a marked Lewis County Sheriff's Office vehicle with black-on-dark-grey graphics is surrounded by Sheriff's vehicles from Pierce, Grays Harbor, Mason, Yakima, Clark, Benton, Clallam, Lincoln, Pacific, Thurston, Whatcom, and Skagit counties.
In my column last week, I mentioned that controversial county Ordinance 1257, passed in 2015, may have opened the door for the Lewis County Sheriff’s Office to establish a fleet of quasi-unmarked vehicles, possibly in opposition of state RCW 46.08.065.
But first, let’s go back: How did Ordinance 1257 — which authorized the Sheriff’s Office to use unmarked vehicles for “general undercover investigation” (AKA: Anything? Everything? What does that mean?) — come to pass?
Back in 2014, “constitutional activist” Gavin Seim attempted to conduct a citizen traffic stop on an officer simply for being in an unmarked vehicle, per his understanding of RCW 46.08.065, which says (essentially) that it’s unlawful for a public vehicle to be unmarked.
Of course, this is an overly simplistic view of how the RCW is written. Nevertheless, the video of the citizen traffic stop went viral, and it caused a lot of conversation statewide.
By January 2015, Solicitor General Noah Purcell, of the Washington State Attorney General’s Office, had issued an unofficial decision via email to a Washington state citizen inquiring about the particulars of the state’s unmarked vehicle rules.
Purcell affirmed in his opinion that local governing bodies have legal authority to adopt rules that authorize unmarked vehicles for traffic control and certain law enforcement activities outside of “special undercover or confidential investigative purposes” — but his opinion implies that those specific exemptions, provided by the statute, have to be adopted by local ordinance, or they don’t apply.
This was not a favorable opinion in the eyes of the Washington Association of Sheriffs and Police Chiefs (WASPC). WASPC members had been following this matter from the beginning, and WASPC leadership was updated on this issue at the January 2015 executive board meeting. Those meeting minutes state:
“Sheriff Knezovich discussed clarification on the ‘unmarked’ car issue that is (sic) percolating over the last year. The Attorney General’s Office has issued an unofficial decision on this issue. Chelan County commissioners have passed an ordinance approving unmarked police vehicles. This may be an issue better resolved at the local level.”
WASPC appeared to see the writing on the wall: Should an “official” opinion come from the AG’s office, it could likely trigger a statewide precedent for stricter rules regarding unmarked vehicles. Sheriff Rob Snaza is a member of WASPC. And, it’s worth noting that WASPC considers itself a legislative influencer on behalf of the interests of law enforcement.
The first discussions on Lewis County Ordinance 1257 began that same month. Sheriff Snaza stated in a county commissioners hearing that the Sheriff’s Office asked the Prosecutor’s Office to draft the ordinance, which provided an exemption to RCW 46.08.065 for the Lewis County Sheriff’s Office to use unmarked vehicles for traffic control in certain instances.
Now, I have no idea how this ordinance was represented to the Board of County Commissioners behind closed doors, but during initial hearings, Commissioner Bill Schulte referred to Ordinance 1257 as a “CYA” (cover your a—) ordinance. Lewis County was already utilizing unmarked vehicles for traffic control without an ordinance.
This apparently is a widespread practice across the state that has run roughshod over the statute.
Civil Deputy Prosecuting Attorney Glenn Carter explained this to the board at a February meeting on the topic, stating: “Under the state law (RWC 46.08.065), we have the authority to do this (use undercover vehicles for traffic control) if we adopt this ordinance. We have been doing some of these things, but in order be certain that we’re covered, and we’re authorized to do these other activities such as traffic control, which doesn’t exist unless it comes under this statute, we need to protect ourselves and make sure we’re covered.”
Now, Ordinance 1257 addresses unmarked vehicles — but what about marked? If we know you need an exemption for one part of the statute … what about another part?
That same RCW 46.08.065 states that publicly owned vehicles are to be marked with “insignia” (graphics) that “shall be in a color or colors contrasting with the vehicle to which applied for maximum visibility.”
LCSO’s black-on-dark-gray vehicle graphics certainly don’t seem to meet the standard of “contrast” — literally defined as “strikingly different” — nor “maximum visibility.”
I have asked the Prosecutor’s Office to clarify exactly how LCSO’s black-on-gray graphics scheme complies with RCW 46.08.065. There does not appear to be a provision for an exemption from the contrast and visibility requirement for marked vehicles.
Is there a belief that Ordinance 1257 covers this issue? Can a county pass a local ordinance to legally exempt an entire fleet of publicly-owned vehicles from state marking requirements?
Whether Ordinance 1257 is updated or not, the question remains as to whether the county is giving themselves power above a state legal standard (county ordinance cannot supersede the statute), where an exemption may not exist — state laws clearly intend public vehicles to be conspicuously marked. Federal emergency vehicle studies (FEMA, DOJ, DHS, etc.) back up this legal standard.
After reviewing photos of LCSO’s black-on-dark-gray graphics, Jeff Even, of the AG’s office, stated to me in an email this week that “if you’ve received a ticket you could challenge the ticket on this basis.”
That means that numerous tickets could potentially be challenged, and any ticket written by any deputy driving an LCSO vehicle with graphics in question could be challenged from this point forward.
Lewis County Civil Deputy Prosecuting Attorney Glenn Carter also said that he “supposed” that someone could bring a challenge on the same basis.
This issue has also attracted the attention of the Washington Association of Criminal Defense Lawyers (WACDL), which is currently examining the legalities in this unique case.
Ordinance 1257 specifically says that the Board of Lewis County Commissioners “expressly reserves to itself the right to determine whether county vehicles are used for the enumerated purposes” in the ordinance. So, I am urging the commissioners to review the practical application of Ordinance 1257 and to use their discretion to suspend any plans to apply these questionable graphics to LCSO’s newest fleet vehicles, until such time as the ordinance can be clarified and compliance with the statute is ascertained.
This isn’t about being pro- or anti-law enforcement. This is about maintaining citizen protections, following the rule and spirit of state laws, and keeping citizens — and law enforcement — as safe as possible.
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Brittany Voie is The Chronicle’s senior media developer. She welcomes correspondence from the community by email at bvoie@chronline.com.
