OMAG's Police Liability Update (November 2024)
HB 4156 (Immigration) is Likely Unconstitutional
HB 4156 enacted two new statutes (21 O.S. §1795 and 22 O.S. §988.25) effective July 1, 2024. The first statute established a new State criminal charge which could be filed against any illegal alien who was found within the State. HB 4156 has drawn strong criticism from law enforcement, including expressions of concern about the potential for allegations of racial profiling. The Constitutionality of HB 4156 was also questioned in light of a United States Supreme Court opinion which held that States have no authority to enact State statutes which criminalize violations of Federal immigration laws. Arizona v. United States, 567 U.S. 387 (2012).
A Federal Judge recently issued a preliminary injunction which bars enforcements of the new HB 4156 statutes. United States v. Oklahoma, No. 24-CV-511 (W.D. Okla. June 28, 2024). A preliminary injunction is just that – preliminary (and not final). It will stay in place until a final ruling is issued regarding the constitutionality of HB 4156. It is expected that Oklahoma will appeal the issuance of the preliminary injunction to the 10th Circuit Court of Appeals. It is also expected that the 10th Circuit will not disturb the injunction during the appellate process. While the 10th Circuit has no authority to overrule a United States Supreme Court precedent, the 10th Circuit’s final ruling can be appealed to the United States Supreme Court. It is worth noting that Texas adopted similar legislation and is also involved in similar litigation. A preliminary injunction was issued against Texas in February. Texas’ appeal related to that injunction is pending before the 5th Circuit Court of Appeals.
We may know within the next year whether the United States Supreme Court will agree to hear an appeal related to the Oklahoma and/or Texas legislation. If it does, a final decision may not be issued until late 2025 or early 2026. For time being, HB 4156 is unenforceable.
Law Enforcement Value Added Services
OMAG is committed to being the go-to resource for our member law enforcement agencies to mitigate law enforcement claims and lawsuits. In recent times, law enforcement related claims and lawsuits have increased dramatically. To mitigate law enforcement liability, OMAG offers many Value Added Services (VAS) to its members. Some of these include:
Lexipol Police Policy Manual: Lexipol provides Oklahoma-specific, customizable Police Policy Manuals, along with timely updates, based on federal and state law, regulations, and best practices.
Lexipol Daily Training Bulletins (DTBs): These are short, scenario-based training modules, modeled after your Department’s Policy Manual, which are designed to provide training specific to your Department’s Policy Manual.
ABLE Oklahoma: ABLE is a national hub for training, technical assistance, and research, all with the aim of creating a police culture in which officers routinely intervene and accept interventions, as necessary, to prevent misconduct, avoid police mistakes, and promote officer health and wellness. OMAG strongly encourages all OMAG law enforcement agencies to become an ABLE certified agency and will assist your agency to become ABLE certified.
OMAG LELA Training Series: This is an intensive training series on law enforcement liability for select law enforcement personnel around the State. The OMAG LELA Training Series is typically held twice a year and each series consists of three training sessions, each consisting of traditional classroom training and roundtable discussions, utilizing case law, body cam, and other materials from real-life incidents.
Online training through LocalGovU: Courses are available for public safety and law enforcement employees, many of which offer CLEET credit.
Police Officer/Dispatcher Background Investigation Forms: Background investigations are vital to ensure that a Police Department is hiring qualified, competent, honest, and capable officers. OMAG has put together some sample forms, letters, checklists, questionnaires, etc. to make the background investigation easier for our members.
Onsite training: Our law enforcement training is specifically tailored to the needs of police departments.
For all your law enforcement needs or questions, contact Kevin J. Katz, Law Enforcement Specialist, at kkatz@omag.org or (405) 657-1400 or Ambre C. Gooch, Associate General Counsel, at agooch@omag.org or (405)657-1447.
OMAG's Police Liability Update (August 2024)
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.
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.