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Saturday, April 27, 2019

More fast-food justice

The "Hash Brown Defense" worked.

A Connecticut driver was acquitted of distracted driving, with the judge ruling that the state had not proven beyond a reasonable doubt that Jason Stiber was talking on the phone. According to the Washington Post, the ticketing officer testified that he clearly saw Stiber holding an illuminated object to his mouth while moving his lips. Stiber offered evidence that his lip movement was "consistent with chewing," that cell-phone records showed he was not on the phone at that time, that his car had Bluetooth capabilities,  and that the arresting officer, Shawn Wong Won, was on the 15th hour of a 16-hour double shift at the time of the arrest. There is a written opinion out there (the WaPo story mentioned it, but did not link).

Two thoughts, one frivolous, one serious.

In my essay, I began with Hedgepeth v. Washington Area Metropolitan Transit Authority, in which then-Judge John Roberts rejected a § 1983 action by a teen who was arrested and handcuffed for eating McDonald's french fries in a Metro Station. So does the Connecticut case mean that hash browns enjoy more constitutional protection in the fast-food hierarchy than french fries?

The more serious thought is that courts virtually always believe police officers when they testify to talismanic phrases--"I smelled marijuana," "He reached for the waistband of his pants," "I clearly saw a weapon in his hand." But here the court did not believe the officer when he said he clearly saw a cell phone in the driver's hand. And the stakes of taking the officer's word in this case--a $300 fine--are infinitely lower than when courts justify police shooting an unarmed person. I am not questioning the outcome or suggesting that the court should have believed the officer here; I am highlighting the different approach and outcome.

Posted by Howard Wasserman on April 27, 2019 at 08:52 AM in Howard Wasserman | Permalink


In police shooting cases, the question is whether the officer reasonably believed the guy was reaching for a gun, not whether he was actually reaching for a gun. There not being a gun is not conclusive proof that the officer is lying or unreasonably believed the victim was reaching for a gun. And no one can really testify against the officer because to a large extent the issue is what was going on in the officer's head. In the cell phone case, on the other hand, the issue was not whether the officer believed the defendant was on the phone, but whether the defendant was actually on the phone. In such a case evidence from the phone logs is conclusive evidence to the issue in question, and the defendant's testimony that he was not on the phone is also directly on point.

Posted by: Biff | Apr 28, 2019 8:03:49 PM

I'm with Asher on this. Sure most of the time that cop is believed but all issues of credibility are rebuttable. Credit the guy for doing a good job of undermining the offcier's testimony.

Posted by: James | Apr 28, 2019 4:55:55 PM

The analogue should be when no gun is found (especially in the waistband situation). It's not precise, although it's close. But it never is used as a basis to question the officer.

Posted by: Howard Wasserman | Apr 27, 2019 7:24:43 PM

I don't know; don't you think the case comes out differently if he didn't have the phone records? Which there's no analogue to in the marijuana/gun situation.

Posted by: Asher Steinberg | Apr 27, 2019 12:18:22 PM

Interesting cases indeed. But not to forget, in the case of Ansche, the facts were not disputed, but rather effectively ( emphasizing : effectively ) the constitutionality of the law itself.In the case of Ansche, the arguments or debate, were mainly surrounding the reasonableness of the arrest of minor, but here in that Hash Brown case, it is only the pure fact, whether ate or talked in his cell phone. It is his word v. his. So, question of law v. question of fact simply.

So, one represents the approach of the lawmaker,the other,of police officers and judges rather.


Posted by: El roam | Apr 27, 2019 11:29:55 AM

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