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‘Grid grief!’ An analogy between electric vehicles and Charlie Brown

OK, I realize that, for the rest of you, Charlie Brown has nothing to do with electric vehicles. However, as the push for electric vehicles moves forward, we are going to be faced with “grid grief.” That phrase reminded me of Charlie Brown and his catchphrase, “good grief!” because … well, that is how my mind works. No real form or function, just random associations of words and images. In other words, the way my brain works makes absolutely no sense. With that being said, as you all know, electric vehicles and autonomous vehicles are two of my favorite subjects. Simply stated, there are a lot of issues to be addressed and things that need to happen before we see widespread adoption. I know some of you are thinking, ‘that is horse shit’ (shout-out to my grandfather here). ‘We already have electric cars so electric CMVs are not that far away.’ Well, I agree, sorta. The American Transportation Research Institute (ATRI) released a study back in December regarding electric vehicles and issues that need to be addressed. The study identified three main hurdles that must be addressed before electric vehicles are viable. Let’s take a look at the issues identified. Supply and demand of electricity in the United States The first issue that must be addressed is the ability to provide electricity sufficient to power the vehicles with our current power grid. The report noted that full electrification of the U.S. vehicle fleet would place a huge demand on the country’s available electric generation. According to the folks at ATRI, electrification of all cars and trucks would require 40.3% of all the electricity currently generated in the country. Moreover, electrification of just the vehicles hauling freight would require 14.6% of the country’s electricity while long-haul trucks alone would account for 10.6%. If you forget about the CMV, electrification of passenger cars and trucks alone would require 26.3% of the country’s current electrical output. Of course, this is not spread around evenly. Some states would be hit harder than others. For example, the report noted that Arkansas would need 46.9% of the state’s current electricity generation. In other words, a significant investment would need to be made to existing infrastructure to accommodate widespread electrification. Now, I am no engineer and I have never professed to be good at math, but those numbers seem high. Really high. To make this work we will need a big investment in our existing infrastructure. If you are curious where that money will come from — the answer is, you and me. Battery production Another issue that needs to be addressed is the material needs to produce enough batteries to support electrification. Battery production requires lots of cobalt, graphite, lithium and nickel, among other things. The ATRI report found that, depending on the material, the U.S. fleet would need 6.3 to 34.9 years of global production to make enough batteries to provide for electrification of the U.S. Fleet. According to ATRI this equals 8.4% to 64.4% of the global reserves. Also, keep in mind that not all these minerals are mined in the U.S. Some are imported from countries that do not like us very much. This seems to me to be a real concern as disruption in the supply chain of these materials could have a very detrimental impact on electrification. Interestingly, the report also noted that life cycles emissions, when accounting for mining and current emission level for electricity production would only provide a 30% reduction in CO2 over diesel. Truck parking and charging In its report, ATRI noted that finding a place to charge trucks while on the road is a problem. Quite simply, we all know that truck parking is already an issue. ATRI states that, regardless of advances in battery capacity or charge rates, electric charging will be limited by truck parking and hours of service rules. According to ATRI, the installation of equipment necessary to charge electric trucks at existing truck parking areas would exceed $35 billion. In addition, the cost of installing hardware to charge the trucks runs about $112,000.00 per unit. This is a heck of a number. And when you think about the current lack of truck parking spaces that could become charging stations, this presents a problem. For complete electrification of long-haul trucks access to charging stations must be available. Additional weight Another issue to consider is the increased weight of electric vehicles. As we all know, batteries are heavy and electric power units weigh more than diesel power units. This means that less freight can be hauled and be in compliance with weight limits. Since you can’t haul as much freight, you will need more trucks to make up for the shortage. This results in trucks on the road and more congestion on the highways. Now, contrary to what you may think, I am not opposed to either electric or autonomous vehicles. I get that change is coming. However, I do not think that either are the immediate solution to our problems and that many issues need to be addressed to ease the transition to these types of vehicles. Brad Klepper is president of Interstate Trucker Ltd. and is also president of Driver’s Legal Plan, which allows member drivers access to services at discounted rates. For more information, contact him at 800-333-DRIVE (3748) or interstatetrucker.com and driverslegalplan.com.

Who ‘owns’ the fingerprints, facial scans used to log into cellphones?

Brad Klepper is busy helping drivers with traffic violations this month, so we’ve pulled this still-relevant column, which originally ran in the Feb. 1, 2022, edition of The Trucker. As you may have figured out through reading these columns, I’m not a big social media guy. Sure, I write these articles — and I’m on LinkedIn and my business has a Facebook page and the other things — but not me personally. My goal is to have zero personal information on the internet. I’m losing this battle, I know, but I’m trying. In fact, my entire social media presence (or lack thereof) is based on a few assumptions. First, nobody in the world cares about or wants to see pictures of my family, my dogs or what I ate for dinner last night. Nobody. Moreover, if we really wanted to stay in contact after grade school, middle school or high school, we would have, looking at your Facebook (or Meta). Second, my sense of humor is a tad bit warped and can be more than a little dark. So, the chances of me posting something in less than 150 characters that could offend the entire world is very real, and would likely occur. In fact, I would set the over/under prediction at this occurring at three posts. Accordingly, Twitter is out of the picture. Third, the thought of creating a video story or posting pictures and other images on Instagram, TikTok or any other app just sounds exhausting. I like to lie to myself and say I work hard at my job, and, at the end of the day, I just want to spend time with my family and dogs and relax. Creating something for an app just does not appeal to me, and I am amazed at the time people have to devote to this endeavor. So, we have basically established that I’m a social-media curmudgeon. And I’m cool with that. I don’t want an internet presence, and I definitely don’t want anyone to track me or use my personal information. Well, as I was surfing the internet the other day, I ran across an article about a company that was misusing a person’s biometric data. As I’m obviously a big privacy guy and don’t want any internet presence, this intrigued me. A bit of background info: Biometric information is data based on things such as your fingerprints, a retina scan, voiceprint, hand scan or facial scanning. Now that you know what biometric information includes, think of how often you use it. Off the top of my head, my phone recognizes both my face and fingerprint to unlock it, and I have at least a half dozen apps that use my thumbprint as my sign-in. The more I thought about it, the more I wondered what, if any, laws exist to protect all this information companies have acquired about me. Well, the good news is that five states have some type of biometric privacy laws already on the books. The better news is that the majority of the remaining states have pending legislation to address this issue. In 2008, Illinois became the first state to enact a Biometric Information Privacy Act (BIPA) to govern the collection, use, handling, storage, retention and destruction of biometric data by businesses. In short, the Illinois version of BIPA covers any biometric data, regardless of how it’s captured. So, your fingerprint used to open an app, or your facial scan used to unlock your phone are covered — but it also includes publicly available information about an individual. This would include taking pictures of people in public, or even gathering info from a public photograph. In addition, BIPA applies, regardless of how the information is converted or stored. For what it’s worth, most fingerprint scans are converted to an algorithm. This algorithm can’t be reverse engineered to re-create the fingerprint. So, even if there’s no risk of harm to the individual, a business can still be liable for statutory damages based on its use of the information. OK, so we know some states have statutes in place to protect the use of biometric data … but how can companies use this without running afoul of the law? Generally, there are four things a business must do to be in compliance. First, before collecting any biometric data a business must have a written policy in place that covers, among other things, the retention period and guidelines for the destruction of such information. This policy must be publicly available. Second, a business must provide you with written notice that the information is being collected and provide the reason for the collection, describe the length of time that the information will be stored and used, etc. This is often found in the “terms of use” that you must acknowledge before you can use an app. I know … I don’t read those things either. Third, a business must take steps to ensure the security of the information collected. It should also regularly review the need to retain such information and ensure that it’s deleted when it is no longer required. Finally, generally speaking, a business may not disclose any information to a third party without your express permission. Of course, a business may disclose parties with whom the information may be shared at the point of collection. Remember the “Terms of Use” agreement? Yeah, look in there. Now, what if the business violates BIPA? Well, in Illinois the base statutory damages start at $1,000 per violation and increase to $5,000 for intentional or reckless violation. Well, you may ask, what is the big deal you? My fingerprint or retina scan is not that big a deal. I would disagree. Your biometric data is yours and yours alone. While I enjoy the convenience of being able to log in to apps and my phone with this information, I don’t want it to be sold or used for commercial purposes without my consent. Moreover, this information can be used to track and monitor people without their consent. As I mentioned earlier, I don’t even want to have a social media presence — much less have companies tracking my movements through facial-recognition software, fingerprints or voiceprints. This type of information is ripe for misuse. As a result, I think it is important that all states adopt some type of biometric information privacy legislation as soon as possible. Brad Klepper is president of Interstate Trucker Ltd. and is also president of Driver’s Legal Plan, which allows member drivers access to services at discounted rates. For more information, contact him at 800-333-DRIVE (3748) or interstatetrucker.com and driverslegalplan.com.

Driver’s actions, attitude during traffic stop have significant impact: Part 2 of 2

In February, Brad Klepper shared tips to help drivers make the best of a bad situation during a traffic stop. This column can be viewed here. This month, we are going to delve a bit deeper than a simple traffic violation. If you are in an accident, always keep in mind your own protection. Typically, if you do not feel you are at fault, your instinct is to cooperate fully with an officer — but you still need to be careful what information you volunteer. Let’s say you’re involved in an accident that results in serious injuries to another individual but no fatalities. Your immediate reaction is to cooperate fully. After all, most professional drivers have nothing to hide. An officer starts asking questions and you respond, thinking you’re being helpful. But, let’s say, three days later the injured person dies, and the prosecutor decides to file a vehicular homicide charge against you. Everything you said at the scene will be brought up in court. The slightest things that you merely commented on could be turned around and used against you. If you are involved in an accident, one of the first things you should do is call your company to report the accident and ask them what they want you to do. You may want to check out the situation for yourself and collect information that could be helpful for your own cause, but in all cases follow their instructions on what to do. Remember, you may be excited or scared, but the company has written steps they want you to follow. The safety department’s job is to handle accidents. This may be the only time in your life you are involved in an accident, so follow their instructions. Snap some pictures of the surroundings, including the vehicles and the people present who were witnesses. You want a picture of every car tag and person at the scene, if you can get it; you never know what they saw. Next, collect potential witnesses’ names and phone numbers. I must caution you here: Do not try to talk to these people about the accident. Professional drivers are not trained in interviewing witnesses, and you don’t want to take the chance of actually hurting your own case. You simply want names and numbers so your company and the defense lawyer can talk to them if necessary. But remember — always follow your safety department’s directions. While some of this may seem extreme, you simply never know when a basic traffic stop or an accident, major or minor, will land you in court defending yourself and your future livelihood. Collecting certain pieces of information when in these situations will help to protect you if that ever happens. The importance of roadside interactions In the course of defending drivers, I see a lot of violations noted on a citation that could probably have been avoided. What do I mean? Well, I am glad you asked. Now understand: My opinion is based solely on what I have seen in my practice — but in my opinion, the reason we are seeing “additional” violations noted on a citation is because of poor roadside interactions with enforcement. I can see it in the way the citations are written. OK, I can hear it now — “How do you know that, smarty pants?” Well, here is my answer: I have been contesting citations and inspections for quite some time. As a result, I generally know how the officer can write a citation. For example, if you bypass a port of entry in New Mexico you can receive a citation for bypassing a port of entry, failure to obey a traffic control device, or other violations. If the officer wrote you a citation but only listed one violation, I know he cut you a break in the field and you had a good interaction. Two violations maybe not quite as good an interaction, but probably still OK. If there are more than that, I know it did not go well. The same can be said for inspections. Assuming you are driving a reasonably maintained vehicle, a couple of violations can be normal. If there are more than five I begin to take notice — more than 10 and I am concerned. If there are more than 30 (yes, I have seen that), I know somebody said something about someone’s momma. Don’t do that. The importance of NOT being memorable In addition to reading citations like tea leaves, I also talk to enforcement and prosecutors on pretty much a daily basis. My conversations with them confirm that I am not making this up. In fact, do you know what the best thing is an officer can say to me when we are discussing a case? It is easy: “I don’t recall your client.” If I hear that, I know everyone acted professionally, and our chances of getting a positive outcome go up. In contrast, when I hear “Yes, I remember your client. Let me tell you what happened,” I know I am in for a long day. So, the next time you have an interaction with enforcement, please remember that the officers are just doing their jobs. They are not targeting you specifically, although I know it can feel this way. They are out to keep the roads safe so you can do your job and everyone else can do theirs. I am sure that if you took a survey of enforcement, writing tickets and doing roadside inspections is not at the top of the “favorite things to do” list. But it has to be done. Why? Because there are people out there on the highways that are truly unsafe and need to be taken off the road. Unfortunately, no one labels the side of their truck with a logo that says, “Unsafe Trucking LLC” or “Unsafe Driver.” Stops have to be made, inspections have to be performed and citations have to be written. This is where the professional part of being a professional driver comes into play. Do not take it personally. Do not make it personal. Do not bring anybody’s momma into the conversation. Be prepared, be courteous, be polite and most importantly, be professional. Understand that this is where we begin defending your citation. Also understand that everyone is entitled to have a bad day, even law enforcement. You know how you feel when a four-wheeler cuts you off? Or when you are trying to solve a problem at home from 1,000 miles away? My point is that the officers are people, just like you — trying to do their job, provide for their family and deal with all the complications that life brings. Extend them the same courtesy you want to be extended to you. I promise, this will make everything go better and get you back on the road quicker. At the end of the day, you cannot always control the circumstances of a stop. You cannot control the mood of the officer stopping you. You cannot always control the violations that may be discovered. What you can control, however, is your attitude and demeanor when dealing with the officer. Please remember that sometimes it is best not to be remembered! Brad Klepper is president of Interstate Trucker Ltd. and is also president of Driver’s Legal Plan, which allows member drivers access to services at discounted rates. For more information, contact him at 800-333-DRIVE (3748) or interstatetrucker.com and driverslegalplan.com.

Driver’s actions, attitude during traffic stop have significant impact: Part 1 of 2

As a lawyer who defends professional drivers on traffic citations, one of the most frequently asked questions I receive is, “What should I do during a traffic stop?” With that in mind, I’ll do my best to answer that question today. In my traditional style, my response may ramble a bit — but it’s the truth! The most common involvement with law enforcement is a basic traffic stop. You see the flashing lights and pull to the side of the road. Now what? How do you best handle this situation to protect yourself? Well, let’s start with the basics. First, it is extremely important that you remain calm and professional, and that you treat the officer with respect. This is critically important. I cannot stress this enough! You will never win any arguments roadside with an officer who is wearing a badge and carrying a gun. Choosing to argue will only ensure you a citation — and a possible stay in the local jail. To use a sports analogy: Have you ever seen an umpire or referee reverse their decision based on protests by a player or manager? If you have, please let me know when and where. Instead, what happens is the decision remains, and the player or manager runs the risk of being ejected. In the trucking world, that means you’re now running the risk of spending the night as a guest of the city or county. Not to mention, the officer will note on that citation not only your words, but also your attitude. This can have a detrimental impact on the outcome of your citation. Also, remember that a traffic ticket is nothing until it becomes a conviction. It becomes a conviction when you automatically pay the fine, fail to show up for court on the appointed day, or the judge or jury hears all the evidence and decides you’re guilty. All have the same effect as a conviction, and all will show up on your MVR (motor vehicle record). Never just pay a ticket and admit guilt if you believe you’ve done nothing wrong. Your court hearing is an opportunity to explain your side of the story and present evidence showing the citation is in error. Making these arguments roadside will only fall on deaf ears. In addition, when talking to the officer who approaches your truck, keep your hands visible. If it’s nighttime, turn on the light in your cab. Do what you can to put enforcement officers at ease, because they’ll be uneasy and unsure about what they might encounter. The more agreeable you are, the better the roadside interaction will go. Above all else when in a traffic stop situation, don’t convict yourself. Be careful of the words you choose and the information you provide. It’s best to answer any questions directly — but never volunteer information lest you incriminate yourself. The officer will note everything you say if you admit guilt. An example I hear all the time is this: A driver gets pulled over. When asked if they know why they were stopped, the response is something like, ‘I was probably going about 70 mph.’ Or, they’ll say they were doing “just a little” over the limit, say 60 mph in a 55 mph zone. Both are an admission of speeding. The cop asks a simple question, and drivers convicts themselves with the answer. Instead, simply say no — or ask the officer how fast they thought you were going, or admit you are unsure of your speed at the time in question. Refrain from agreeing with whatever they say — but do so respectively. In the event the officer asks if you will consent to a search, my general advice is to say no. Of course, if you’re absolutely positive there’s nothing to find, you can do as you wish. Remember, of course, that if an officer really wants to search your vehicle, they’ll find a way to get it done. They may say they detect the smell of marijuana, or bring out a K9 unit that might “hit” on your truck. But, at the end of the day, if you don’t consent to a search and one is conducted, and something discovered, you can argue the legality of the search at your hearing. If you consent, any arguments you may have will go out the window. Another thing you can do is make a video recording of the stop (as long as you’re in a place it’s legally allowed to record the stop). The officer may be doing the same through a dash or collar cam. Keep in mind that recording the stop may not endear you to the officer. After the stop is over, one of the best things you can do is record, either as a voice message on your phone or as written note, everything that happened before, during and after the stop. You can use this information later to refresh your memory if you’re a witness on the stand. The judicial system understands that data recorded at the time of the incident is more accurate than your memory some three to 12 months later. This makes your written or recorded information more accurate in the court’s mind than that of an officer who makes 25 traffic stops a day and has to recall your specific incident specifically at a later date. In the March edition of The Trucker, I’ll discuss what to do in case of an accident and provide additional tips to make any roadside interactions with law enforcement go more smoothly. Brad Klepper is president of Interstate Trucker Ltd. and is also president of Driver’s Legal Plan, which allows member drivers access to services at discounted rates. For more information, contact him at 800-333-DRIVE (3748) or interstatetrucker.com and driverslegalplan.com.

New government regulations coming in 2023: The gifts that keep on giving

Those of you who actually read my monthly columns are likely aware that I am fundamentally lazy. By this I mean that deep down, at the core of my being, I am totally happy to sit with my feet propped up, sipping a cocktail and watching the world go by. “What in the world does that have to do with the price of tea in China?” you may ask. Well, it means I am having a bit of writer’s block — probably the lingering effects of all tryptophan in my system from the gluttonous amount of turkey I ate over the holidays. So, instead of coming up with an original, insightful and slightly humorous article (which I have never been able to accomplish, ever), I decided to go with a “list” type article. But instead of listing my favorite Christmas songs (the Dean Martin version of “Baby it’s cold outside” if you really want to know), or my New Year’s resolutions, I decided to list some potential regulations the folks at the Federal Motor Carrier Safety Administration (FMCSA) have on the plate for this year. See, I told you I was lazy. However, while I may be lazy, the FMCSA is working hard to pursue a number of rulemaking proposals in 2023. SPEED LIMITERS First out of the gate is speed limiters. OK, this one is not new, and the notice of proposed rulemaking was published and open for comment last year. To that end, the FMCSA is currently reviewing over 14,500 comments received on this issue. Just like most things in life, I may not know the answer, but I am never short on opinions. If you want to know my thoughts and potential issues with speed limiters, go back and read my article from June 2022. Regardless of my thoughts or opinions, however, the FMCSA has said it “intends to proceed with a motor-carrier based speed limiter rulemaking” with a supplemental notice of proposed rulemaking to be published by June 30. BROKER & FREIGHT FORWARDER FINANCIAL RESPONSIBILITIES Next up are changes to the broker and freight forwarder financial responsibilities. Way back before COVID-19 — in September of 2018, to be exact — the FMCSA published an advanced notice of proposed rulemaking (ANPRM) on this issue and asked for comments about the financial responsibilities of these entities. Well, the FMCSA has said it plans to publish a notice of proposed rulemaking (NPRM) by Jan. 25 that “will propose changes to the broker and freight forwarder financial responsibility requirements as required by MAP-21.” I am interested to see the NPRM and what will be proposed. AUTOMATED DRIVING SYSTEMS Also on the FMCSA’s agenda is a plan to publish an NPRM amending certain regulations related to the introduction of commercial trucks equipped with automated driving systems (ADS). Proposed changes would include operations, inspection, repair and maintenance regulations of ADS trucks. The purpose of this is to “prioritize safety and security, promote innovation, foster a consistent regulatory approach to ADS-equipped CMVs and recognize the difference between human operators and ADS.” The NPRM is scheduled to be published by Jan. 18. I suspect I will have some pretty strong opinions on this matter, so stay tuned. AUTOMATIC EMERGENCY BRAKING SYSTEMS In addition to the foregoing item, the FMCSA and the National Highway Traffic Safety Administration (NHTSA) plan to join forces and issue an a NPRM to require/standardize the performance of automatic emergency breaking systems. This proposal is expected to publish by Jan. 30. SAFETY FITNESS PROCEDURES Finally, the FMCSA plans on publishing an ANPRM on safety fitness procedures. In essence, this would focus on how to use current data and resources to identify unfit carriers. The FMCSA will also seek comments about possible changes to the current rating structure and changes to the methodology used to calculate these scores. Needless to say, this one has my attention, and I am curious about which direction FMCSA ultimately takes in this matter. This ANPRM is scheduled to publish by Jan. 30. So there you have it … my incredibly lazy list of things the FMCSA will be up to in the current year. Interestingly, I think I may have just identified my next four or five columns for 2023. You have been warned. Brad Klepper is president of Interstate Trucker Ltd. and is also president of Driver’s Legal Plan, which allows member drivers access to services at discounted rates. For more information, contact him at 800-333-DRIVE (3748) or interstatetrucker.com and driverslegalplan.com.

On trucks, tolls and the US Constitution

On rare occasions, I am right about things. By rare, I mean about as often as I win an argument at home. That’s rare. Despite my abysmal track record, I was (finally) proven to be right about something — namely that the truck-only tolls in the great state or Rhode Island are unconstitutional! I know many of you may find this hard to believe, as I am the guy who thought the Supreme Court would grant cert to the California Trucking Association case challenging AB5. Well, they can’t all be home runs. To refresh your memory, back in 2016 the good folks in the Rhode Island legislature thought it would be a good idea to impose tolls on vehicles traveling on their roadways. That, in and of itself, would be fine. However, the state legislature decided to take it a step further and make the tolls just apply to trucks! And that, my friends, is where the problems began. In 2016, then-Gov. Gina Raimondo (now U.S. Commerce Secretary) decided that money needed to be raised to rehabilitate the state of Rhode Island’s highways and bridges. Moreover, the state alleged that 70% of the damage to the roadways was caused by big trucks (the methodology for determining this percentage was hotly disputed). In its infinite wisdom, the state decided that only trucks should be made to pay the tolls. This decision would result in only 3% of the vehicles traveling the state’s roadways paying 100% of the tolls. This did not pass muster with the court. At the time, it was argued by many that such a toll was unconstitutional. Well, we were right. In its decision granting a permanent injunction earlier this fall, the courts said: “Because RhodeWorks fails to fairly apportion its tolls among bridge users based on a fair approximation of their use of the bridges, [it] was enacted with a discriminatory purpose and is discriminatory in effect, the statute’s tolling regime is unconstitutional under the dormant Commerce Clause of the United States Constitution.” As background, the Commerce Clause refers to Article 1, Section 8, Clause 3 of the U.S. Constitution which gives Congress the ability to “regulate commerce with foreign nations, and amongst the several states, and with the Indian tribes.” In other words, Congress can use the Commerce Clause to exercise legislative power over the activities of the states. In the very simplest of terms, the Commerce Clause allows Congress to pass laws and regulate commerce between the states. The Dormant Commerce Clause, implicit in the Commerce Clause, prohibits states from passing legislation that discriminates or excessively burdens interstate commerce. This means states can’t enact protectionist policies that favor state citizens or businesses at the expense of others conducting business in the state. Therein lies the issue with the truck-only tolling regime. Now, this may seem like a pretty straightforward case — and to most, it appeared to violate the Dormant Commerce Clause at its inception. However, it is of major importance to our industry. Quite simply, if truck-only tolling had been found constitutional in Rhode Island it is not a stretch to think that it would quickly be adopted by other states. I believe American Trucking Associations President Chris Spear said it best in response to the court ruling: “We told Rhode Island’s leaders from the start that their crazy scheme was not only discriminatory, but illegal.” Spears also added: “We’re pleased that the court agreed. To any state looking to target our industry, you better bring your A-game … because we’re not rolling over.” Brad Klepper is president of Interstate Trucker Ltd. and is also president of Driver’s Legal Plan, which allows member drivers access to services at discounted rates. For more information, contact him at 800-333-DRIVE (3748) or interstatetrucker.com and driverslegalplan.com.

To avoid a frivolous lawsuit, attorneys must provide a nonfrivolous argument, theory

Brad Klepper is out of pocket this month, but we hope you’ll enjoy this “rerun,” which was originally published in the January 1-15, 2021, edition of The Trucker. Let’s get this out of the way up front: Nobody likes lawyers. I get that. I really do. I am a lawyer myself, and I don’t even like lawyers. Shoot, there are days I don’t even like myself. Which — the more I think about it — is something I should probably discuss with a professional. Regardless, there is one big reason why folks don’t like lawyers. (OK, I lied. There are actually several big reasons why folks don’t like lawyers.) But one of those reasons is that lawyers file frivolous lawsuits — which they are not supposed to do. Just so you know, lawyers are officers of the court and are required to follow certain rules when they file lawsuits. Of course, if a lawyer violates these rules, the suit can be dismissed, and the court may sanction the lawyer. Lawyers can also be disciplined if they violate jurisdictions ethics rules relating to the filing of lawsuits. While court procedures and ethics rules may vary slightly between jurisdictions, they all basically say the same thing: All lawyers are prohibited from filing “frivolous” lawsuits or suits otherwise without merit. In other words — and as my grandfather would say — lawyers, are not supposed to file lawsuits that are full of “horsesh*t.” I never understood what Grandad had against bulls, but whatever…. So, if we know lawyers are not supposed to file these lawsuits, why do we seem to see so many of them? The answer is that lawyers are permitted to file lawsuits when they know enough facts to believe the eventual proof will support the allegations contained in the lawsuit. This is done without knowing all the facts at the time the lawsuit is filed. In addition to lawsuits being free from “horsesh*t,” the lawyer is also required to cite the relevant settled legal theory or state a new one he or she believes should be adopted by the court. A good example of a “new legal theory” would include the school segregation arguments made by Thurgood Marshall in the 1954 U.S. Supreme Court case of Brown v. Board of Education and the same-sex arguments made in the Obergefell decision of 2015. Federal lawsuits are governed by Rule 11 of the Federal Rules of Civil Procedure (most states have adopted some version of this), which states that the new legal theory is “warranted by existing law or by nonfrivolous argument … or the establishment of the new law.” This means if a lawyer files a lawsuit based on a theory so far-fetched that no court could be expected to accept it, then that lawyer could be in violation of Rule 11 or its state equivalent. If this occurs, that lawyer could be sanctioned by the applicable state bar for violation of ethics rules. In light of all of the above, why don’t we see more lawyers getting fined or disciplined? The answer is that it’s a fine line that separates a “frivolous” lawsuit from one that might be “meritless” but argues for a new legal theory. So, while judges, the media and others may criticize a suit as “frivolous” and call for sanctions or other disciplinary action, the standard is high for imposing such sanctions. In fact, the standard of proof required in most jurisdictions for finding such a violation is “clear and convincing evidence.” That’s a high bar indeed. At the end of the day, whether a lawyer violated the rules of professional conduct will be determined by each state’s disciplinary agency on a case-by-case basis. But that still doesn’t mean we have to like lawyers. Brad Klepper is president of Interstate Trucker Ltd. and is also president of Driver’s Legal Plan, which allows member drivers access to services at discounted rates. For more information, contact him at 800-333-DRIVE (3748) or interstatetrucker.com and driverslegalplan.com.

How does the concept of ‘stare decisis’ impact the Supreme Court’s rulings?

I always work under the assumption that I and perhaps a handful of others are really the only people who care about stare decisis and how it impacts our legal system. The reason I am so confident in this is that I believe most folks have no idea what the doctrine of “stare decisis” means. Well congratulations, today we are going to address this issue. First, state decisis, is just a fancy Latin term they teach you in law school so you can justify an increase in your hourly rate. But seriously, in short the term means “to stand by things decided.” This is also known as precedent. Now you may wonder why I have chosen to write about this doctrine at this time. The answer is that the doctrine of stare decisis was an issue in the Supreme Court’s recent decision to overturn Roe v. Wade (1973) and Planned Parenthood v. Casey (nearly two decades later). To be up-front, I am not going to discuss the pros and cons of Dobbs v. Jackson Women’s Health Organization. I am not sure there is a more divisive legal issue in the country today, and I have no intention of wading into that debate. Few people like lawyers to start with, and I don’t want to reduce that number in half by expressing an opinion that would alienate two of the four folks who like lawyers. Instead, I am going to discuss the legal doctrine of stare decisis and how it comes into play in Supreme Court decisions. As background, the concept of stare decisis is not found in the Constitution or in any state or federal law. It is based on English common law and Alexander Hamilton’s comments in the Federalist Paper 78 in which he said, “to avoid an arbitrary discretion in the judges, they need to be bound down by rules and precedents … (and) the records of those precedents must unavoidably swell to a very considerable bulk.” In other words, courts should be bound by their prior decisions. This provides stability and uniformity in the interpretation and application of law to cases, thereby allowing society to rely on settled law. As Justice Lewis Franklin Powell Jr. once remarked, “The elimination of constitutional stare decisis would represent an explicit endorsement of the idea that the Constitution is nothing more than what five justices say it is.” In the real world, the doctrine of stare decisis applies both horizontally and vertically. Meaning that lower courts are compelled to follow the decision of higher courts (vertically). To a lower court judge, decisions by the Supreme Court are law and must be followed. Also, horizontal precedent refers to the Supreme Court following its prior decisions. Of course, the courts have adhered to the concept with varying degrees of loyalty. In fact, former Chief Justice William Hubbs Rehnquist said that “precedent is a principle of policy and not a mechanical formula of adherence to the latest decision.” In contrast, in a 2019 decision, Justice Elena Kagan said in a dissent that “judges do not get to reverse a decision just because they never liked it in the first instance.” She also said “it is hard to overstate the value, in a country like ours, of stability in law.” With that said, the Supreme Court has overruled its prior decision 141 times since 1851. This is less than once a year. Of course, precedent helps make sense out the conflict between the wisdom of past decisions and the rationality of the present. An example of where the courts ignored stare decisis can be found in Brown v. Board of Education, a unanimous decision that struck down the 1896 decision in Plessy v. Ferguson, which allowed “separate but equal” treatment of the races. This decision really started a revolution in civil rights law. Another example is Texas v. Lawrence in 2003, which overturned Bowers v. Hardwick, a decision that allowed states to criminalize sodomy. In that decision, the court said the earlier case “was not correct when it was decided, is not correct today and is hereby overruled.” In Dobbs v. Jackson Women’s Health Organization, the court noted that stare decisis “is at its weakest when we interpret the Constitution.” The court also found the quality of Roe’s reasoning, relying on a constitutional right of privacy arising from the First, Fourth, Fifth, Ninth, and 14th Amendments, was incorrect and that no such right is conferred by the Constitution. From there, the court found the decision in Roe v. Wade was damaging and usurped the power to address a question of profound moral and social importance and that the Constitution unequivocally leaves for people. In other words, the court held that the Constitution does not create a constitutional right to an abortion, and the doctrine of stare decisis does not upholding Roe v. Wade. Whether or not you agree with this reasoning, it is important to note how the doctrine of stare decisis is addressed by and influences the court’s decisions.

What does implementation of California’s AB5 mean for the trucking industry?

I am wrong about a lot of things. By “a lot,” I mean an obnoxiously large number of things. So, I guess I should not have been surprised when the Supreme Court of the United States (SCOTUS) denied cert on the California Trucking Association case challenging AB5. I know I shouldn’t have been, but damn, was I surprised. I know I am supposed to be neutral in these things, but I truly thought the court would grant cert on this case. There was, in my opinion, sufficient confusion among the courts, and SCOTUS now leans toward the conservative side (by a count of 6-3). Honestly, I would have bet you $1,000 that SCOTUS would hear the case. And I would have been wrong. Now, as background — and in case you have forgotten — California adopted AB5 to deal with wrongly classified employees. The bill was originally directed toward the “gig” economy (think Uber and Lyft) but found a home in the trucking industry. In essence, when the bill was signed into law it basically made the independent contractor business model for trucking companies extinct in California. How can that be, you ask? Simple. In passing the bill, the legislature adopted the test handed down by the California Supreme court in the Dynamex case. As a result, companies will now be required to use the ABC test set forth in Dynamex to determine independent contractor status. According to the ABC test, for a person to be classified as an independent contractor, the ABC test requires: A – That the worker is free from the control and direction of the hiring entity in connection with the performance of the work and in fact; B – That the workers perform work that is outside the usual course of the hiring entity’s business; and C – That the worker is customarily engaged in an independently established trade occupation or business of the same nature as the work performed. Now, you don’t have to be a genius to understand that part B of the ABC test is basically an impossible standard for a carrier to meet. Any independent contractor hauling freight for a carrier will now be classified as an employee. So … where does this leave us? Well, it means AB5 is the law of California and is retroactive to Jan. 1, 2020. It also means that the independent contractor business model is basically dead in California. While the adoption of AB5 will definitely put some money into the state’s coffers, I think it is bad law, as it hurts small business in California. The last data I saw showed there are about 136,950 small businesses with small fleets in California. Many of these use the independent contractor business model. Sure, there are some small businesses that take unfair advantage of the independent contractor business model, but I believe there are more that don’t. I also believe there are a lot of independent contractors who do not want to give up the freedom to control the “who, what, when and where” of how they work, not just in the trucking industry but throughout all businesses in California. This law impacts freelance writers, photographers, medical professionals, accountants, etc. The impact, I believe will be far-reaching. To my point, I know of several carriers that stopped hiring independent contractors domiciled in California when AB5 was first passed. In addition, I know that some independent contractors who wish to maintain that status have moved their “residence” across state lines to avoid the issue. I also know that other states have been watching the outcome of this case and have either proposed legislation ready or are planning to push for a similar law in their state. To be honest, I think you can look to “blue” states where the Democrats control all branches of the state government. I believe this presently includes states such as Colorado, Connecticut, Delaware, Hawaii, Illinois, Maine, Nevada, New Mexico, Oregon and Virginia. So, what can trucking companies do to address AB5 in California? They can simply agree to treat the contractors as employees. However, this may not be the best solution, as many of the drivers have their own trucks and WANT to be independent contractors. In theory, a carrier could also change its structure to be a logistics company, using independent carriers to deliver goods. This would arguably get past the part B of the ABC test: The independent contractors would no longer be working for a trucking company, so the job they perform would be outside the course of the hiring entity’s business. The only way to know for sure whether this would work would be for the courts to hear the matter. And there is no guarantee that the courts would agree. At the end of the day, I think AB5 will have a huge impact on business in California — an impact that I don’t think was anticipated. Brad Klepper is president of Interstate Trucker Ltd. and is also president of Driver’s Legal Plan, which allows member drivers access to services at discounted rates. For more information, contact him at 800-333-DRIVE (3748) or interstatetrucker.com and driverslegalplan.com.

Regarding civil liberties: Is ‘hate speech’ protected by the First Amendment?

Brad Klepper is busy helping drivers this month. We hope you enjoy this column, which originally ran in July 2021. Those of you that read my columns may remember that I recently wrote on free speech and social media. As I mentioned then, I am a BIG free speech guy and feel strongly that no idea should be free from scrutiny, criticism or mockery. As I also said then, an unexamined thought or belief is not worth having. Since I wrote that column, I have received a few comments and questions about “hate” speech. I think we can all agree that you don’t have to look too far to find examples that would qualify as hate speech. Recent demonstrations by white supremacists are a good place to start. So, the question becomes, “Is hate speech protected by the First Amendment?” Well, I am glad you asked. Back in 2017, Ted Wheeler, the mayor of Portland, Oregon, said, “Hate speech is not protected by the First Amendment.” This comment was made after two men were killed after they confronted another individual who was using anti-Muslim slurs. Also in 2017, former Democratic National Chair Howard Dean, when referring to comments made by Ann Coulter said, “Hate speech is not protected by the First Amendment.” Well, they were both wrong. The U.S. Supreme Court has clearly stated that governments may not restrict speech expressing ideas that offend. A recent case addressing this matter is Matal v. Tam. In this case, Simon Tam, the founder and bass player for the Asian-American rock band The Slants sought to trademark the band name in an attempt to reclaim and take ownership of the derogatory term. The U.S. Patent and Trademark Office (USPTO) refused to register the mark and found it disparaging to people of Asian descent. In support of this position, the USPTO found that the mark violated the Lanham Act’s provision against registration of disparaging trademarks. Of course, Tam decided to appeal to the Federal Circuit. On appeal, the Federal Circuit found the disparaging provision of the Lanham Act to be unconstitutional. This did not sit well with the USPTO, which appealed the decision to the Supreme Court. The issue is whether the disparaging provision of the Lanham Act violated the Free Speech Clause of the First Amendment. In a unanimous decision, the Supreme Court held that the disparagement clause violates the First Amendments Free Speech Clause. In the opinion, Justice Alito wrote: “Speech that demeans on the basis of race, ethnicity, gender, religion, age, disability or any other similar grounds is hateful; but the proudest boast of our free speech jurisprudence is that we protect the freedom to express the ‘thought we hate.’” This, my friends, is the basis of free speech. In a world where we can watch television shows, read newspapers and magazines, and listen to radio programs that only serve to support our already existing beliefs, it is easy to be in favor of free speech — when that speech echoes our own beliefs. But what becomes a challenge is remaining in favor of free speech when that speech goes against everything we stand for. Now, I am not a movie critic, but maybe 20 years ago I watched the movie “The American President” starring Michael Douglas. The move had a bit of a Hollywood liberal take (and I like my movies politically neutral). However, in the movie, Michael Douglas is giving a speech, and he says: “America isn’t easy. America is advanced citizenship. You’ve gotta want it bad, ’cause it’s gonna put up a fight. It’s gonna say, ‘You want free speech? “Let’s see you acknowledge a man whose words make your blood boil, who’s standing center stage and advocating at the top of his lungs that which you would spend a lifetime opposing at the top of yours.’ “You want to claim this land as the land of the free? Then the symbol of your country cannot just be a flag. The symbol also has to be one of its citizens exercising his right to burn that flag in protest. “Now show me that, defend that, celebrate that in your classrooms. Then you can stand up and sing about the land of the free.” Say what you will about the movie but that quote pretty much sums up the good and the bad about free speech. While I may not agree with anything you say — or your decision to burn the flag or do other things I may find reprehensible — I will defend to the death your right to do so. Brad Klepper is president of Interstate Trucker Ltd. and is also president of Driver’s Legal Plan, which allows member drivers access to services at discounted rates. For more information, contact him at 800-333-DRIVE (3748) or www.interstatetrucker.com and www.driverslegalplan.com.

The great speed limiter debate: FMCSA’s proposed rule spurs questions

As you know, I often complain about how the things that are hot topics at the time of writing will be old news by the time of publication. This is something that occurs with about 99.99% of all my column ideas. However, the exception to the rule is the topic of the federal government. The one thing you can count on is that when they say that are going to do something they will not do it quickly. (Bless their hearts.) Well, much to my column-writing pleasure, the Federal Motor Carrier Safety Administration (FMCSA) recently announced a notice of intent to move forward with rulemaking to require the use of speed limiters for commercial motor vehicles (CMVs). The notice of intent provides a series of questions to allow the FMCSA to gather info so they can begin to draft a Supplemental Notice of Rulemaking. This supplement rule would propose requiring CMVs with electronic engine control units to set at the maximum top speed, which is yet to be determined. I just used a whole lot of words to say this: The FMCSA is going to start the process to require speed limiters on CMVs. Well, the one thing you can count on in this scenario is that nothing in this process will occur quickly. The first thing that happens is the public has the opportunity to comment. In fact, comments will be accepted for 30 days once the notice of intent is published. This should be fun reading as nobody can, or likely will, agree on the maximum speed to be allowed. Now let me get this out of the way: I am not opposed to speed limiters or any other safety technology that can save lives and make the roads safer. I’m just thinking of all the other moving parts that are included in a decision such as this. As you know, speed limiters have been a topic of discussion for years. In fact, back in 2006, the American Trucking Associations (ATA) petitioned for a maximum speed of 68 mph. Of course, things have changed since then, and new safety technologies have been created. Accordingly, the ATA now supports a maximum speed of 70 mph for CMVs equipped with automatic emergency braking and adaptive cruise control. In trucks without this equipment, the ATA supports a maximum speed of 65 mph. Of course, both of these speeds conflict with the desires of various trucking safety groups, that would prefer speeds in the low 60s. This is where it will get interesting. In addition to trying to determine the maximum speed to be allowed, there are additional issues that need to be addressed. For example, could this create additional safety concerns? Because we lack a national maximum speed limit, the speed at which speed-limited CMVs may be traveling below the posted speed limit will vary greatly. Since some toll roads have speed limits of 80 or 85 mph (and assuming a CMV is governed at a top speed of 65 mph) a truck could be traveling 15 to 20 mph below the posted speed limit. Would trucks traveling at this reduced speed, well below the speed of the surrounding pedestrian traffic, create additional safety concerns? Also, will these trucks try to pass each other on such highways and cause undue congestion? And how will the speed limiters work while traveling downhill? Moreover, it does not seem that speed limiters will not have the intended benefit when traveling below highway speeds. What is to stop a truck from doing 65 mph in a 35 mph zone? The answer to some of these questions may exist in other technology. In fact, Eric Weiss of the National Traffic Safety Board has stated that they view the FMCSA action “as an interim step toward an eventual requirement that all newly manufactured heavy vehicles be equipped with advanced speed-limiting technology, such as variable speed limiters and intelligent speed adaptation devices.” As background, intelligent speed adaptation devices work through a global GPS system that “knows” the speed limit and can warn drivers when they exceed the limit, or even prevent them from exceeding a certain speed. This seems like a good solution, but it is a step beyond just basic speed limiters. What is the additional cost to have this feature included on new equipment? Will the individual owner-operators and small carriers be able to afford this additional expense? If not, will it prevent them from purchasing new equipment? If so, will an increase in older equipment on the road create any additional issues? Also — and this is just the lawyer in me now — who will be liable when the GPS database of speed zones is incorrect or out of date and a truck is allowed to exceed the predetermined maximum speed and is involved in a crash? What if the data is incorrect and slows the truck down so it can’t travel at the speed limit (think failure to update the reduced speed in a construction zone after completion of the work); would the manufacturer of the device have any responsibility/liability for any unsafe conditions in either of these scenarios? As I said earlier, this is going to be an interesting discussion and I am curious where we will stand when the dust clears. Brad Klepper is president of Interstate Trucker Ltd. and is also president of Driver’s Legal Plan, which allows member drivers access to services at discounted rates. For more information, contact him at 800-333-DRIVE (3748) or interstatetrucker.com and driverslegalplan.com.

They took my yacht! Can government impose sanctions against individuals?

Sometimes these columns are hard to write. You come up with an idea, but by the time it would be published, your idea is not nearly as interesting as it originally appeared. This happened to me in this column. I had an idea but its “best if eaten before” date would have passed before publication. I hate it when this happens. So, what do you do? It’s easy: You write about current events. So, here we go…. The other evening, I was sitting around, smoking a cigar, sipping Dom Perignon and watching the talking heads on the various news channels discuss the sanctions currently being imposed on Russia because of its invasion of Ukraine. The sanctions being imposed seemed predictable … until they reported the freezing of assets, restrictions on travel and seizure of private jets, yachts and homes belonging to numerous Russian oligarchs (I have no idea how to say the word, and I had to look up the spelling). In other words, these sanctions are not directed toward a country but toward an individual. Now they had my attention. As my grandfather liked to say, that seems like horseshit. Granddad really liked that word. I immediately thought about what would happen if they seized my yacht or private jet. (Not a damned thing, because I don’t have either.) However, the legal questions of how this can be accomplished fascinated me. At the end of the day, the sanctions imposed by the U.S. impacted numerous oligarchs, 328 members of Russia’s State Duma (the lower house of parliament) and other Russian elites. Many of those sanctioned had assets subject to U.S. jurisdiction. This means that the parties can’t have access until the sanctions are lifted. How did we get here? As background, the U.S. has used economic sanctions for over 200 years to address national security and foreign policy crisis. That is not really a surprise, as we have been sanctioning Iran, North Korea and other countries for as long as I can remember. What interested me about the current situation is that the sanctions are being imposed against individuals for the acts of a country. I can’t recall this occurring in my recent memory. Are these sanctions legal? The short answer is yes. The sanctions are mainly rooted in two statutes, the National Emergencies Act and the International Economic Powers Act (IEEPA). Enacted in 1977 the IEEPA allows the U.S. president to freeze, block and regulate (or really any other verb) assets in which a foreign person has an interest, if the president declares a national emergency. Once the names of the Russian oligarchs and others impacted by the sanctions are made public, it is up to the banks and the other businesses to freeze any property owned by these individuals — including assets owned by an alias or by an entity 50% or more owned by the sanctioned parties. These sanctions are applied immediately to prevent the parties being sanctioned from moving their assets and avoiding sanctions. Of course, the Fourth and 14th Amendments now come into play. The Fourth Amendment deals with unreasonable searches and seizures, and 14th Amendment states that neither the federal or state government shall “deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” This means the government can’t take your stuff without you having the right to a hearing. This is oversimplified, but you get the point. As a result of the due process clause, those impacted by the sanctions can file a petition with the Treasury’s Office of Foreign Assets Control or in federal court. However, during the 45 years since its inception, the government has prevailed in basically all such lawsuits. Of course, even if you challenge the freezing of your assets or the seizure of your yachts, the process will not be quick. Quite simply, it can take several years for the play out in the court system, and during that time the sanction remain in place. So, while the Russian oligarchs may not like having their assets frozen or yachts seized, they would likely have little success in challenging the legality of the sanctions — and likely even less success in getting their assets returned anytime soon. Now, I know that what happens to oligarchs and their yachts doesn’t necessarily impact the trucking industry. But what if something arose that caused a national emergency, and these same laws were applied to foreign nationals with trucking interests in the U.S.? Hmm. Makes you think, doesn’t it? Brad Klepper is president of Interstate Trucker Ltd. and is also president of Driver’s Legal Plan, which allows member drivers access to services at discounted rates. For more information, contact him at 800-333-DRIVE (3748) or interstatetrucker.com and driverslegalplan.com.

Just talking to your lawyer is not enough to constitute attorney-client privilege

Brad Klepper is busy helping drivers with traffic violations, so we’re treating readers to a re-run of this column, which originally ran in the April 15-30, 2021, edition of The Trucker. Believe it or not, I actually like being an attorney. Granted, some days I like it a lot more than others, but I think is that probably true with any profession. I get to interact with people — help them solve problems and see a little justice served. And, I get to say things like, “I object” in open court, just like they do on TV. With all that said, there are a couple of ways surefire ways for attorneys to find themselves disbarred. One of those is to violate attorney-client privilege. For those keeping score at home, attorney-client privilege (A/C privilege, for short) ensures the confidentiality of communications between a client and his or her attorney. In the broadest possible terms that means that, for the most part, what you tell your attorney is confidential. The concepts date back to the days of Queen Elizabeth and English common law. A/C privilege was first recognized by the U.S. Supreme Court in 1906. In a 1998 U.S. Supreme Court case addressing A/C privilege, Chief Justice William Rehnquist summed up the importance of that privilege by stating that A/C privilege is “intended to encourage full and frank communication between attorneys and their clients, and thereby promote broader public interest in the observance of the law and the administration of justice.” That seems logical and, to be honest, pretty straightforward. But the facts are what make this particular case interesting. This case involved the investigation of President Bill Clinton, and it involved notes taken by a lawyer for White House aide Vincent Foster regarding the Whitewater real estate deal. Special prosecutor Ken Starr was seeking access to the notes through a grand jury. To make matters interesting, Foster died just nine days after the conversation in question, of an apparent suicide. Part of the question was whether A/C privilege survives the death of the client. In this case, the U.S. Supreme Court ruled in a 6-3 decision that A/C privilege does indeed survive the death of the client. So, we know that the privilege can survive death but what makes a conversation qualify for this protection? Simply talking to a lawyer is not enough. Generally, A/C privilege applies only if (1) the holder of the privilege is a client or is trying to become a client; (2) the person to whom the communication was made is a member of the bar of a court or a subordinate; (3) the encounter occurs only when the lawyer is acting in a legal capacity and the disclosure is not for the purpose of committing a crime; and (4) the privilege has been asserted. To paraphrase the above, the general requirements for the privilege to apply are: You are a client; I am a lawyer; The disclosure is not related to a crime; and You claim the privilege. Of course, over time, the courts have carved out exceptions to A/C privilege. It is what they do, and it keeps lawyers employed. The biggest exception — and the most cited — is the crime/fraud exception. The other exceptions involve a fiduciary exception (think trust and estate cases) and the “on the advice of counsel” exception, which is used as a defense. The last two exceptions are not that much fun to talk about, so I will briefly mention the first. The crime-fraud exception arose in a U.S. Supreme Court case more than 100 years ago. The exception basically covers communications that further a crime, tort or fraud. In other words, if you are silly enough to discuss your future crime spree with your attorney, the conversation is not privileged. Needless to say, there are lots of issues we could discuss regarding A/C privilege and its application; however, I am running out of space — and I am confident your eyes have already glazed over. In closing, the thing to understand is this: Not every conversation is protected. If you have questions or concerns, ask your attorney. Brad Klepper is president of Interstate Trucker Ltd. and is also president of Driver’s Legal Plan, which allows member drivers access to services at discounted rates. For more information, contact him at 800-333-DRIVE (3748) or interstatetrucker.com and driverslegalplan.com.

Addendum: Impact of costly citations on public safety and revenue generation

In my last column, which appeared in the March 1-14, 2022, edition of The Trucker, I wrote about the rising cost of traffic tickets. Specifically, I wrote about all the extra fees that are being added to the cost of the initial fine, resulting in a greater out-of-pocket expense for drivers. Click here to review the previous column. As I said in that column “Now, we could talk about where this additional money goes and how it is used — but let’s save that for another time. Let’s also wait to discuss how these additional financial assessments may impact the policing of drivers.” I know many of you think I was just passing the buck and not wanting to discuss the issue at this time because I’m lazy. Well, you would be right, about the lazy part anyway. However, the reason I didn’t dive into the subject then was that there was simply not enough space to get into the matter. Shoot, I’m not sure I can talk about it in the space I have for this column! I guess we’ll find out. Last fall, the New York Times (NYT) wrote an article titled “The Demand for Money Behind Many Police Stops.” The article surveyed the U.S. and wrote about how revenue received from traffic citations funds town and the police responsible for finding violations. Now before we get started, this column is NOT anti-traffic enforcement. I support the police and believe the job they provide is crucial to keeping the roads safe. I further believe that the vast majority of towns and municipalities aren’t doing anything sketchy. With that being said, and as the NYT article noted, many municipalities across the country rely on ticket revenue and court fees to pay for government services. Moreover, some maintain “oversized” police departments whose presence helps generate that money. Interestingly, the NYT article found that this phenomenon is not a big-city problem — instead, the majority of the towns that depend on this revenue have populations below 30,000 people. In addition, it seems many of these towns are clustered in the South and Midwest areas of the U.S. For example, Valley Brook, Oklahoma, a town of 870 people that covers less than a half of square mile collects roughly $1 million from traffic cases. A majority of the stops occur on a four-lane road that is home to the police station, a liquor store, a cannabis dispensary and three strip clubs. According to the NYT article, 72% percent of the town’s revenues come from traffic fines; this is the highest in the state. While it can be argued that this is because the police jurisdiction covers only one block on the main road, such enforcement allows for officers to catch more serious infractions. “I put officers out on the street every single night for the sole purpose of drug and alcohol enforcement because it is such a big problem that we have here,” said Police Chief Michael A. Stamp. While recognizing the town’s dependence on traffic tickets, Stamp said, “I will stand by the fact that what we are doing out here also saves lives.” With those statements in mind, it would appear that Nicholas Browser is the type of driver that the chief wants to keep off the road. Around midnight one evening, instead of pulling over for a traffic stop, Browser led police on a chase away from Valley Brook to his home about a mile away. Once he surrendered, police found a handgun and discovered that his blood-alcohol content exceeded the legal limit. Interestingly, instead of charging Browser with a DUI — which would have resulted in the matter being transferred to district court outside of Valley Brooke — the police instead charged him with negligent driving and public intoxication, thereby allowing the town to keep the revenue. Now understand, I’m not just picking on this one town. The NYT articles identified towns with similar stories in Louisiana, Ohio, Oklahoma and Virginia. According to the NYT, the federal government is partially responsible for fueling the culture of the traffic stop. The federal government issues over $600 million a year in highway safety grants that subsidize ticket writing. While no quotas are imposed in connection with these grants, at least 20 states have evaluated performance based on the number of traffic stops conducted per hour. Now as I said earlier, I support the police and believe the job they provide is crucial to keeping the roads safe. I further believe that the vast majority of towns/municipalities aren’t doing anything sketchy. While traffic stops and the threat of citations deter some folks from breaking the law, the need for some outlying municipalities to sustain a revenue stream could be viewed as the reason for many traffic stops occurring therein. At the end of the day, the police are there to enforce the law and keep us safe, often from ourselves. This, and this alone, needs to be the reason for traffic stops. While revenue from traffic citations will always be necessary to help support government services in the community, traffic citations issues solely for the purpose of revenue generation needs to stop. Brad Klepper is president of Interstate Trucker Ltd. and is also president of Driver’s Legal Plan, which allows member drivers access to services at discounted rates. For more information, contact him at 800-333-DRIVE (3748) or interstatetrucker.com and driverslegalplan.com.

The rising cost of traffic tickets presents difficulties in paying fines

Everyone — all two or three of you — that regularly read my columns in The Trucker are probably aware of what I do for a living. For those of you that don’t know, I am a lawyer. I defend CDL drivers (and occasionally myself) in traffic citation cases. As a result, I see a lot of tickets from around the country. I have also seen the cost of simple traffic citations continually increase. And not just a little. However, when you look closely, it is not necessarily the fine associated with the alleged (see what I did there?) violation. The fees that are added to the citation that greatly increase your out-of-pocket expense. To be honest, all these additional fees would make the phone company proud. What am I talking about? Well, I’m glad you asked. By way of example, let’s look at California. For the sake of argument — because I know none of you would ever do this — let’s assume you roll a stop in California (first of all, you shouldn’t do that). The actual fine amount associated with the violation is only $35. No one wants to pay $35, but as far as fines go, it’s not that bad. However, at the end of the day, you would end up paying much more than just the fine amount. A state penalty assessment adds $10 for every $10 of the base fine and rounds up. So, in this case, that would be an additional $40. In addition, there’s a county assessment of $7 for every $10 of fine (again, rounded up), which adds another $28. A court construction assessment will cost you another $20. Then, the Proposition 69 DNA assessment adds $4, and the DNA Identification fund adds another $16. At the end of the day, 11 separate fees have been added to the original fine amount — bringing the grand total for your citation to $238; the original fine amount of $35 plus additional assessments of $203. Think of how many times this happens in California. According to Martin Hoshino, administrative director for the Judicial Council of California, what’s happened is that the state’s government has become accustomed to using these fines and assessments to help generate revenue for various government services. Now, we could talk about where this additional money goes and how it is used — but let’s save that for another time. Let’s also wait to discuss how these additional financial assessments may impact the policing of drivers. Instead, let’s take a look at how all this impacts a person’s ability to pay the fine. Of course, most folks could scrape together $35; however, getting $238 together may be a different thing entirely. Not everyone can afford to pay that amount, and the additional assessment can create a hardship for the person receiving the citation. But what can be done to address this situation? The Judicial Council, along with California’s State Superior Courts may have a solution. Their answer allows people to fill out a survey and request a reduction in the amount owed based on their ability to pay. This program started in 2019; by the end of 2021, it was available in seven California counties. There are 12 more counties slated to offer the program this year. This seems like a fair way to address the financial burden on those who have a lesser ability to pay. Of course, this reduction in the amount paid would have an impact on some municipalities and government functions. How could this be addressed? I’m not sure. However, the good folks in Switzerland have an interesting take on fines associated with speeding violations. While the Judicial Council’s solution serves to reduce the fine, the Swiss program works both ways. It can lower or increase the fine amount based on the personal ability to pay. In Switzerland, the level of fines associated with speeding is determined by both the wealth of the driver and the speed recorded. To that end, a 37-year-old millionaire was recently caught driving 170 kilometers per hour (105 mph) over the speed limit. The fine, if it stands, would be roughly $1,000,000. This would eclipse the current record of $290,000, a fine given to another Swiss millionaire. As you can see, fines of this size certainly make up for a lot of fine reductions. At the end of the day, I don’t know what the answer is on how best to address the steady increase in “fines” associated with traffic citations. I’m also not sure if the California or Swiss solutions are the best options; however, I think they’re something worth talking about. Brad Klepper is president of Interstate Trucker Ltd. and is also president of Driver’s Legal Plan, which allows member drivers access to services at discounted rates. For more information, contact him at 800-333-DRIVE (3748) or interstatetrucker.com and driverslegalplan.com.

Changing an industry is hard, especially when the nation’s infrastructure can’t support it

For the most part, I am pretty adventurous when it comes to new things. I will eat, drink and am generally willing to try damn near anything that you put in front of me. (Well at least once, anyway.) I am also pretty open to new developments in technology in cars, computers, phones, etc. All in all, I think I am pretty easy to get along with regarding “new” technology. However, the one thing that I hate is being told that I HAVE to do something. Blame it on the contrarian in me. If you want me to sit down, just ask nicely and I will. If you tell me I HAVE to sit down … well, we have a whole new set of issues. So, with that in mind, the one thing I hate about new technology is being told I have to do something, especially when the action you want me to take has not been thoroughly vetted. What in the world could possibly have me this worked up? Well, I am glad you asked. Back in September of 2021, the governor of New York (the one that replaced Andrew Cuomo) signed a bill banning the sale of new gas powered-cars and trucks in the state by 2035. “New York is implementing the nation’s most aggressive plan to reduce the greenhouse gas emissions affecting our climate” Governor Kathy Hochul stated. “To reach our ambitious goals, we must reduce emissions for the transportation sector, currently the largest source of the state climate pollution.” Beginning with the 2025 model year, new truck manufacturers will be required to meet certain annual sales percentages of zero-emissions trucks. The quota will vary depending on vehicle class. Now please understand — I love the environment, as well as rainbows, puppies and kittens, and I understand the need to decrease emissions for the sake of the environment and all living creatures. I want the world to be around for my children’s children, and I am willing to do my part to support it. I see the need for zero-emission vehicles, and I understand that they are coming. However, I believe the good folks in New York may be suffering from a case of premature legislation. While the intention of the law is admirable, the infrastructure does not currently exist to support the law. I am not making this up — this statement is supported by the folks at the Trucking Association of New York (TANY). Kendra Hems, president of TANY, noted that “one of the big concerns we have as an industry is the lack of truck parking, and now we’re talking about electrifying an industry where drivers already don’t have anywhere to park.” Hems further stated, “When we have electric trucks, where are they going to charge? That also gets into more of the cross-country challenges.” Needless to say, there are lot of questions that need to be addressed. For example, where will all the trucks charge? How will there be enough charging stations available? Can the electrical grid handle this increased load? How do I get an electric vehicle across the country? More to the point: How do I get a load of produce from California to New York using an electric truck with the current infrastructure system? Quite simply, I am not sure you can. There will need to be way more charging stations in place to make this happen. Being from the Midwest, I don’t see a whole lot being added now. Also, who is going to pay for the infrastructure to be put in place? Just because some states like California and New York see something as a priority, that does not mean all the other states will have that same priority. Different states have different values and focus on different things. I do not think the South or the Midwest agrees with either coast on every single issue, and thus these states may not be in such a hurry to get the charging infrastructure in place. In addition, if you are a carrier in New York how will you charge your trucks? Quite simply, you will need to add charging stations at your terminal. How many? It depends on your size. But let’s assume you need to add 100 charging stations. Is the electricity currently supplying your terminal enough to handle the increased load? Shoot, is the electrical grid for the CITY large enough to handle the increased load of electric cars and commercial vehicles? I am not sure about the answers to any of these questions. But what I do know is that some states have lost power during winter storms or have been forced to do rolling blackouts. Do you really think we can add this increased burden without first making sure the underlying electrical grid can handle the load? If not, who will pay for the upgrade? Because I am long-winded and running out of space, I am not even going to discuss the amount of time required for heavy-duty electric vehicles to get a full charge and the delays that will likely result from time spent charging (or waiting to charge). At the end of the day, I really DO believe we need to make changes to better protect the environment. However, I think if you would have asked, nicely most folks would already be making the changes to zero-emissions vehicles — but would be doing so in quantities that the current infrastructure could support. Passing this law is forcing people to make changes at a pace that the infrastructure can’t support. And that seems like a bad idea to me. Brad Klepper is president of Interstate Trucker Ltd. and is also president of Driver’s Legal Plan, which allows member drivers access to services at discounted rates. For more information, contact him at 800-333-DRIVE (3748) or interstatetrucker.com and driverslegalplan.com.

Q&A session: FMCSA’s DataQ system

Between online shopping and pretending to work, I was busy surfing the internet last month. Let’s be honest: Nobody (except truck drivers) really works that hard in December. With that said, one thing I have noticed is that a lot of sites have their “year in review” type articles. As you all know, I am fundamentally lazy and not above jumping on a current trend! Accordingly, I thought I would do a list of the most often asked DataQ questions I have received over the past year. Because I am a giver, I am also including the answer! So, without further ado, here are the top questions I received about DataQ challenges. Q. How long are the points from an inspection record on the safety score for a driver as opposed to a carrier? A. For a driver, the points resulting from an inspection report show on the record for three years. The points resulting from the inspections of any drivers operating under a carrier’s USDOT number is two years. Q. Why are DataQ challenges such a long and drawn-out process? A. While this can be true, a lot comes down to the reviewing agency. Once a challenge is filed it can take anywhere from a few days to a few months for a decision to be made, depending on how many challenges are needing to be reviewed. Q. I received a citation but didn’t receive an inspection. Will there be points on my safety record? A. If you did not receive an inspection, there would not be any points on your safety score from the citation. You can always ensure that there was not an inspection by pulling a copy of your PSP report. We have seen inspections not given to the driver at the time of the stop — rarely, but it does happen. Q. What does a DataQ challenge do, exactly, and why do I need to do one? A. DataQ challenges help keep as many points as possible off your safety score. The lower your score, the better. Your safety record helps you with employability, training opportunities and keeping your insurance rates lower. Q. Will the points on my safety score be there for the rest of my time as a CMV driver? A. No, the points on your safety score are only there for three years. Q. Why is my company saying I have 21 points for my seven-point violation? A. The points on the safety score are multiplied by three for the first year from the date of the inspection, so the total would be 21. The second year from the date of inspection, they would drop to 14 points. The final year, they are at three points. After three full years, the points are no longer on your safety score. Q. If the truck I’m driving and the cargo I’m hauling at the time of an inspection are less than 26,001 pounds, it shouldn’t count against myself or my carrier since I’m not at the weight of a CMV, right? A. The combined weight at the time of an inspection is not what determines whether a truck and trailer are considered a CMV. It is the gross vehicle weight rating (GVWR) that determines whether a vehicle is considered a CMV. Anything with a GVWR of 26,001 pounds or higher is considered a CMV, regardless of the weight at the time of the inspection. Q. I received a citation associated with a violation on my inspection report that I received at the time of the inspection, which was dismissed or amended. These points are adjusted on my safety score automatically, right? A. Unfortunately, they do not automatically adjust. Reviewing agencies vary from state to state and typically are not part of the court system. To ensure the appropriate change is made, a DataQ challenge must be done, and a copy of the court records submitted to the state agency in charge of making the changes. Q. I received a dismissal or amendment on my citation that is associated with my inspection report, but the reviewing agency would not offer relief. Can they do this? A. Yes, an agency can choose to not offer relief for dismissals or amendments that are made in court. Typically, these fall under very specific situations and will vary from state to state, if it happens. The most common reason given is a fine being paid or a diversion period being granted in exchange for a dismissal. Q. My carrier uses a third-party safety score reporting program and it’s shows points on my score that were removed by a DataQ challenge or points are not only counted once per the stacking rule. Can they use these? A. Yes, the company you work for can use a third-party safety score reporting program. They should already be aware that these may not reflect the correct points. If they have any questions regarding your score, a PSP report from the FMCSA can be pulled for $10 which will reflect the most recent status of your safety score. Q. There are violations on my inspection report that are not mine; they are my co-driver’s violations. How can I be sure they are not on my safety score? A. The best way to ensure that the violations are not reporting to you is to pull your PSP report. There will be a notation on the violations that are not counting against your record stating as much. If there is not a notation, it is best to do a DataQ challenge to ensure that these violations are reported correctly. Q. What is the best kind of documentation I can submit with a DataQ challenge for an inspection with no associated citations? A. Documentation that has proved helpful in formulating strong challenges includes, but is not limited to copies of logbook pages for violations relating to record of duty status violations; speed readouts for speeding violations; call records for cellphone violations; proof of valid periodic inspection at the time of the stop for violations relating to periodic inspections; and copies of the CDL and medical cards for license violations. Q. Can I submit photos or videos with my DataQ challenge? A. Absolutely! Keep in mind that this kind of documentation must be time- and date-stamped. Photos and videos can be an excellent way of showing that violations were not present at the time of an inspection. Q. I was involved in a crash incident and don’t feel this should count against my record. What can I do? A. The good news is that a DataQ challenge can be done for these incidents — as long as they occurred on or after Aug. 1, 2019. Crashes prior to this are not eligible to be challenged at this time. For a review, you must submit a copy of the original crash report be alongside the challenges. Time- and date-stamped videos have proven to be helpful in these challenges. Q. I was just informed that the reviewing agency has offered relief on my safety score regarding my inspection report. Why aren’t the changes showing? A. The FMCSA refreshes its database to show changes once a month. Because of this, depending on the time of the month the results are received, it could take a month for these changes to show. If you need a verification that the change has been made, the reviewing agency does send emails with the results of the challenge that can be presented as verification. Q. My DataQ challenge was denied. Can it be filed a second time? What about another time after that? A. Yes, it can be filed a second time. However, it is best to submit stronger evidence with the second challenge, or add documentation you may not have had access to before the first challenge. Rules concerning any challenges after a second challenge vary from state to state. Some states have an appeal process, and others do not. Be sure to check with the reviewing agency if you want to continue further than a second challenge. Q. Can I challenge all the inspections that are on my PSP report? A. Absolutely! You can challenge any inspections that are showing on your inspection report. We recommend filing DataQ challenges for any inspections that you feel were issued with incorrect violations as this gives you a greater chance at lowering the points on your safety score. You never know if the reviewing agency will offer relief if you don’t file a challenge and we have seen violations with no citations removed in the past. Brad Klepper is president of Interstate Trucker Ltd. and is also president of Driver’s Legal Plan, which allows member drivers access to services at discounted rates. For more information, contact him at 800-333-DRIVE (3748) or interstatetrucker.com and driverslegalplan.com.

Can a former president invoke the right of executive privilege to withhold evidence?

I know that some of you may find this hard to believe, but I am not a political junkie. I truly am not. In all honesty, I would rather get poked in the eye with a sharp stick than be drug into a political argument. For the record, I am neither far right nor far left. I am something of a Goldilocks in that I like my politics somewhere in the middle. I mean who doesn’t like porridge that is “just right”? With that said, I try to never take a political stand in any of the articles that I write. Heaven forbid somebody should actually look to me (or anyone other than themselves) for direction on what position to take on a political matter. Instead, research the matter yourself and develop your own belief. Someone much wiser than me once said that an unexamined belief is not a belief worth having. I agree. Now that we’ve established that I’m not a political junkie let’s talk about what I am. Quite simply, I’m a legal junkie. By that, I mean I like the law and the legal questions that are often presented. To be honest the squabbling between Congress, the present administration and the past administration presents plenty of legal questions to fuel my habit. In fact, one of the most recent questions to arise addresses executive privilege. Specifically, can a former president exert executive privilege to block the release of documents to the House committee investigating the events of Jan. 6, 2021? Now that may seem like a benign question, but trust me it is not. There is lots of history and things to discuss packed into that question. So, let’s get started. Unless you’ve been living under a rock, you know former President Donald Trump claimed executive privilege to block a request for presidential documents held by the National Archives and Records Administration. Of course, this is now working its way through the courts. The first stop was at the U.S. District Court in D.C., where Judge Tanya Chutkan found that Trump is “unlikely to succeed on the merits of his claims.” This opened the door for the release of the documents. However, the matter was appealed and two days later a three-judge panel for the U.S. Court of Appeals for the D.C. Circuit and the court issued a temporary stay (think of it like a “hold”) on Chutkan’s order. Oral argument was heard Nov. 30. However, as of this writing, we have not yet heard the court’s decision. Now, before we go much further, let’s take a look at executive privilege. The modern doctrine of executive privileges dates back to a 1974 U.S. Supreme Court decision that forced then-President Richard Nixon to turn over the tapes related to a little something called Watergate. (I’ll bet some of you remember that!) In that decision, the court said that “absent a claim of need to protect military, diplomatic or sensitive national security secrets, we find it difficult to accept the … [absolute] confidentially of presidential communications.” Nixon complied and then resigned a few weeks later. But later, as a former president, he claimed that historical practice, as well as an attorney general opinion, said all official documents from his time in the White House were his personal property and announced his plan to destroy those documents. Needless to say, this did not sit well with Congress, which then enacted the Presidential Recordings and Material Preservation Act of 1974, placing Nixon’s presidential records in federal custody to prevent their destruction. Nixon did not like that at all, and challenged the act on the ground that it violated the separation of powers. Three years later the U.S. Supreme Court upheld the act in a 7-2 decision and found that no such violation existed. The decision also noted that the act was signed by President Gerald Ford (who served as Nixon’s vice president). However, the opinion DID say that executive privilege “survives the individual president’s tenure” and that “a former president may also be heard to assert” these claims. However, the court placed several caveats on this privilege, and noted that executive privilege does not apply when there is a compelling reason for the information, such as in a criminal investigation. The following year, Congress tightened control of a former president’s papers through the Presidential Records Act of 1978 (PRA). Under the PRA, ownership of the official records of the president were transferred to the federal government. The PRA also established statutory rules for the management of these documents. Of course, sitting presidents can issue regulations under executive orders to assist with the implementation of the law. In fact, President George Bush issued an executive order giving a former president the ability to assert such privilege without the consent of the sitting president. However, an executive order by President Barack Obama shifted the decision on executive privilege back to the sitting president. As president, Trump could have issued his own order to reverse Obama’s regulations, but he chose not to do so — a decision I am sure he regrets. So, at the end of the day, the courts are going to have the final say on whether Trump can assert executive privilege in this situation. Based on the oral arguments heard Nov. 30, I’m going to go out on a limb and say the court will likely rule against Trump in this matter. Of course, it’s likely the matter will then be passed to the U.S. Supreme Court to decide what obviously could be a far-reaching decision on executive privilege. Brad Klepper is president of Interstate Trucker Ltd. and is also president of Driver’s Legal Plan, which allows member drivers access to services at discounted rates. For more information, contact him at 800-333-DRIVE (3748) or interstatetrucker.com and driverslegalplan.com.

Same song, second verse: ‘It depends’ is attorneys’ standard answer for most questions

Brad Klepper is busy helping drivers with legal problems this week. We hope you enjoy this “rerun” from the Oct. 1, 2020, edition of The Trucker. As those of you who read my columns in The Trucker already know, the answer to almost every question you will ask a lawyer is — wait for it — “it depends.” In fact, I think I took “It depends 1” and “It depends too” (see what I did there) as part of my core curriculum in law school. The point I am trying to make here is that the law is nuanced, and there are very few bright-line rules. This was really brought home to me recently in a conversation with my wife. We were watching the news, which was showing a video of the Department of Homeland Security (DHS) forces in the city of Portland, Oregon. My wife asked me what seems to be a pretty straightforward question: “Can the federal government use federal forces in cities?” I took a deep breath, slowly poured myself a drink, and then responded (you guess it), “It depends.” My wife, fully expecting this answer, poured herself a glass of wine and got comfortable as she prepared for my long-winded explanation. (This was clearly not her first rodeo.) I took another deep breath and began: In establishing the federal government with limited powers, the founding fathers did not include a general federal police power in the U.S. Constitution. That power is reserved to the states under the 10th Amendment. However, under certain situations, federal law gives the federal government the right to send in federal forces. Specifically, this can occur to: (i) protect federal property, (ii) ensure that federal law is upheld and (iii) enforce federal court orders. It also allows the U.S. Department of Justice (DOJ) to monitor compliance with federal voting-rights laws, such as fraud and voter intimidation. For those of you keeping score at home, this should not come as a surprise. Federal forces were used to intervene in the railroad strikes of 1877 and 1894. Remember those? Me either. Federal forces were also used to enforce federal judges’ desegregation orders in the 1950s. Moreover, federal forces were used to assist local police with riots following the assassination of Dr. Martin Luther King in 1968. More recently, federal forces were used to help police control the riots following the acquittal of several police officers for the beating of Rodney King. This brings us back to the news, and the video my wife and I were watching. In this scenario, DHS said the use of federal forces was necessary to protect the federal courthouse. Not everyone liked this use of federal forces. In fact, a lawsuit was filed by the Oregon Attorney General to limit the federal forces activity. This was denied by a federal judge, although several other lawsuits remain related to alleged unconstitutional activity by the forces. “OK,” my wife said, “but what about having federal forces at polling placed during an election? President Trump suggested there would be strong federal presence at polling places in November. He said there would be sheriffs, law enforcement and hopefully U.S. Attorneys. What about that?” That, as they say, is a different matter. Through the elections clause, the U.S. Constitution grants power to individual states to determine the “time, place and manner” of federal elections. Even though Congress sets the date of federal elections, its other federal powers are limited. The DOJ can monitor compliance with federal voting laws and fraud and intimidation, but that is about it. Federal law prohibits any military or federal civil police from ordering “any troops of armed men at any place where a general or special election is held, unless such force is necessary to repel armed enemies of the United States.” Violation of this law carries a fine and up to five years in jail. In other words, the president can’t order federal troops of civil police to monitor polling locations; it falls to the states to determine how, and if, polling places are monitored. Of course, state and local laws addressing this issue are all over the board. For example, Pennsylvania police are required to remain at least 100 feet from a polling place unless summoned. New York City, on the other hand, requires that at least one police officer be assigned to each polling location. These laws regulate the use of state or local law enforcement. Federal forces are not allowed (absent very limited circumstances). So, to summarize, the government’s executive branch has no authority to order federal forces to provide security for beyond legal monitoring by the DOJ. Any violation of this would subject the official to federal and state criminal penalties. After I said all of this, my wife finished her glass of wine, looked me in the eye and said, “Remind me to quit asking you legal questions.” Brad Klepper is president of Interstate Trucker Ltd. and is also president of Driver’s Legal Plan, which allows member drivers access to services at discounted rates. For more information, contact him at 800-333-DRIVE (3748) or interstatetrucker.com and driverslegalplan.com.

Recent Supreme Court rulings uphold ‘qualified immunity’ for law enforcement

As you know, I am an attorney. That fact alone means that I have a grossly inflated sense of self. In other words, I sometimes tend to think that I am smarter than I really am. I know some you are thinking, “I’ve read your columns, and you, my friend, are not that bright to start with.” Well, I agree. Now don’t get me wrong — I am not totally stupid. However, every now and then I misread the signs around me and make a bad decision or pick the wrong side. For example, I picked Beta video over VHS back in the ’80s. I also went with the Zune over the iPod. And if that wasn’t enough, I also bet on the Blackberry over the iPhone. Apple apparently has it in for me. Also, I have been known to make a mistake on how I think the courts are trending in regard to a particular legal issue. In fact, this happened to me very recently. For those of you that actually read my columns (my wife, my parents and Kevin B.) you may recall that right before COVID kicked off, I wrote column about police immunity. In the column, I discussed qualified immunity and how police officers have the legal right to a dismissal of civil suits seeking monetary damages arising from their official conduct unless the plaintiff can show that materially similar conduct has been found to be unconstitutional by a prior court. I also discussed some specific cases addressing the issue, and noted that U.S. Supreme Court justices Sonia Sotomayor and Clarence Thomas had expressed concern that the doctrine had gone a bit too far. In support of that, I noted that Sotomayor expressed worry that the Court’s past cases addressing qualified immunity had created an “absolute shield for law enforcement officers.” Based on these comments, I stepped out on a limb and said that there may be some concern regarding this doctrine within the courts — and that concern might signal a trend toward narrowing the immunity. And that, as they say, is where the wheels fell off. As it often does, the universe decided to smack me down. The smackdown came in the form of two recent U.S. Supreme Court decisions addressing qualified immunity. Last month, the U.S. Supreme Court handed down a couple of decisions that dealt a blow to any trend toward the reining in of qualified immunity. Both cases dealt with claims of excessive force by police officers. In Rivas-Villegas v. Cortesluna, the police shot a man twice with bean bag rounds because he had a knife pointing up in his pockets. After the shooting, the police then kneeled on the man’s back. In Tahlequah v. Bond, the police fatally shot a man for refusing to drop a hammer he was allegedly brandishing as a weapon. In both cases, the plaintiffs accused the officers of violating the Fourth Amendment’s prohibition against use of excessive force. Not surprisingly, the officers sought to have the cased dismissed because of qualified immunity. In a bit of a surprise, the courts allowed these cases to go to the jury. This was a bit surprising because, based on a line of Supreme Court decisions, qualified immunity extends to an officer’s unconstitutional/unlawful conduct if it does not “violate clearly established statutory or constitutional rights of which a reasonable person would have been aware.” The court has further clarified this broad immunity by stating that it should protect “all but the plainly incompetent or those who knowingly violate the law.” Regardless, the lower court’s decision to let the cases go the jury seemed to reflect the trend that qualified immunity protection was beginning to be reined in. At least that is what I thought. But I thought wrong. In both cases, the Supreme Court seemed to kill any hope that the qualified immunity protection would be scaled back in the foreseeable future and used strong language in admonishing the lower courts for denying qualified immunity. In their defense, the lower courts cited precedents with similar fact patterns in which they found a violation of clearly established rights. However, the Supreme Court disagreed and said the lower courts had viewed the cases too generally, and that the precedents they cited were materially distinguishable (lawyer-speak for “not the same”) from the facts of each case. In other words, any variation from the facts of the previous case can render a constitutional right claim “not clearly established.” If this happens, the officer faces no civil liability. At the end of the day, the takeaway is that the apparent trend to rein in qualified immunity has been dealt a blow — and I have been shown to be wrong. Again. Quite simply, the stringent requirements required to defeat a defense of qualified immunity will remain in place unless Congress decides to modify the existing doctrine. Brad Klepper is president of Interstate Trucker Ltd. and is also president of Driver’s Legal Plan, which allows member drivers access to services at discounted rates. For more information, contact him at 800-333-DRIVE (3748) or interstatetrucker.com and driverslegalplan.com.