Brad Klepper

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.

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.

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.

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.

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.

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.

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.

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.

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.