Perspective

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.

I understand that not many of y’all (I can say that because I’m from Oklahoma) may not really care which cases the U.S. Supreme Court decides to hear. Perfectly understandable. Many of the cases they hear are boring and lack any real “sex appeal.” And by sex appeal, I mean something that impacts you, me and the transportation industry as a whole. Well, the court will have an opportunity to change that by granting certiorari to a case that will greatly impact our industry … and it’s pretty sexy. Some of you may have already figured out that I’m talking about the California Trucking Association (CTA) case challenging AB5. (If you already knew that you really need to get a hobby.) Now, as background — and in case you’ve forgotten in the past few years — 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 in California extinct. “How can that be?” you ask. It’s 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. For those of you keeping score at home, 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. 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. At this point, I could go into a discussion about how this really benefits the unions by allowing them to unionize at various state ports. But I won’t go there. Instead, I offer this helpful holiday tip: If you’re struggling for something to discuss around the dinner table on Thanksgiving, bring this up. As long as you have both a union member and someone who wants to independently contract for their services at the table, there will be no shortage of conversation. Now, back to the subject at hand. As I mentioned, the CTA has asked the U.S. Supreme Court to review the case on the grounds that motor carriers should be exempt from enforcement based on federal pre-emption. In essence, they’re saying the state law is invalid because it conflicts with federal law. When this happens, federal law wins. Think of it like a card game — federal law trumps all other law. In this case, the CTA bases its case on an “express conflict in the federal circuit court on an exceptionally important question of federal law: Does the Federal Aviation Administration Authorization Act of 1994 preclude states from adopting worker-classification rules that prohibit or substantially restrict motor carriers’ use of owner-operators?” For decades, the classification of California truck drivers has been governed by the “multifactor test” handed down in S.G. Borello & Sons, Inc. vs. Department of Industrial Relations. This test examines the total circumstances of the relationship between the business and the person performing the work. While there is no single rule that makes this determination, included in this consideration is the “right to control” the manner of means of completing the task. Most independent contractors I know exercise control of the “what, when and where” of what they do. Accordingly, this test would favor the independent contractor. According to the CTA, “in California more than 70,000 owner-operators chose to work independently because of the freedom, flexibility and business growth potential that business model provides.” So, at the end of the day (actually probably in October or November), the U.S. Supreme Court will determine whether to grant certiorari and hear this case. Personally, I hope it happens. This matter is too important to our industry and to the independent contractor business model to not have the uniformity brought by a U.S. Supreme Court decision. 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.

Early in the pandemic I wrote an article on federal v. state COVID-19 authority. I don’t remember the exact date I wrote it, but it was early in the pandemic. I am going to say maybe the fall of 1987 or so. (It seems we’ve been dealing with the pandemic for decades.) The article discussed the federal government’s ability to intervene in the health crisis through the Commerce Clause of the Constitution as opposed to the ability to control the spread of COVID-19 within their borders through the 10th Amendment. As you recall, the article was brilliantly written. (I say that only because I am sure nobody remembers it.) Well, now the fine folks in the government have kicked it up a notch. As you are no doubt aware, using executive orders and agency directives, President Joe Biden mandated the full vaccination of federal employees, federal contractors, and Medicaid- and Medicare-funded health care facility workers. Not too terribly surprising, really. However, he also directed the Labor Department to prepare an emergency rule requiring private companies with 100 or more employees to ensure that their workers are either fully vaccinated or tested weekly for COVID-19. This, as they say, is a different animal all together. Of course, the words were no sooner out of Biden’s mouth that folks started to threaten to sue. (I’m looking at you, Gov. Doug Ducey (Arizona), Gov. Kristi Noem (South Dakota), and entire the Republican National Committee.) Other folks just characterized the rules for private business as unconstitutional. From a jaded, cynical lawyer’s perspective, the threats of litigation and claims that the rules violated the constitution are a bit premature. As of the mid-September day I am writing this column, the Labor Department has yet to write the rules. But let’s forget all that, and instead ask this important question: Based on Biden’s statements, would it appear the mandate plan is constitutional? The short answer is that it certainly appears so. Of course, the wheels could fall off once they actually start drafting the rules. However, with some care, it seems like Biden’s rules for private business could pass muster. Quite simply, the federal courts have rejected constitutional challenges to vaccine mandates in the past, provided those mandates do not single out one demographic group in a discriminatory manner. In Jacobson v. Massachusetts, way back in 1905, the Supreme Court found that “Americans do not have a constitutional right to harm their fellow citizens by refusing a vaccine and, thereby serving as a disease vector.” The facts of this case may sound somewhat familiar. At the time, a smallpox pandemic was working its way through Massachusetts. To help stop the spread, the Board of Health of Cambridge, Massachusetts, passed an ordinance that imposed a $5 fine on anyone over 21 years of age who refused to be vaccinated. Jacobson, a Lutheran pastor, refused to take the smallpox vaccine on the grounds that he had gotten sick from a childhood vaccination. He also argued that the vaccine mandate amounted to the imposition of paganism upon the public — a matter I am not even going to discuss. As expected, Johnson was criminally prosecuted. On appeal, he argued that the vaccine violated his due process rights to bodily integrity. In other words, he said the vaccine deprived him of his constitutional right to make decisions regarding his own body. In a 7-2 decision, the court disagreed with Mr. Jacobson. Moreover, in the opinion, Justice Harlan noted the social compact theory. This basically means that a society covenants with each citizen, and each citizen with society to be governed by laws for the common good. Another reason this century-old decision is still relevant is because Justice Harlan recognized that the government’s power to mandate vaccines does not include the ability to compel a person to take a vaccine that will harm their health. It is also interesting that arguments supporting vaccination laws have withstood challenges based on the free exercise clause of the First Amendment freedom guaranteeing the freedom of religion. Though it was not a vaccine case, in 1990 the Supreme Court ruled that the clause does not relieve a person from complying with a law that applies to everyone and does not single out a particular group. Based on what we have heard, it does not appear that Biden’s rule for private companies violates this rule. At the end of the day, the key thing to remember about Biden’s mandate is that it does not criminalize a refusal or require anyone to submit to the vaccine. You are given the choice. Get vaccinated or take a weekly COVID test. Moreover, it does not appear to single out a particular group. Rest assured, this is not by accident. I am sure Biden had several lawyers much smarter than me help him work this out. Of course, that does not mean the whole thing can’t head south and the actual language of the rule, once written, prove problematic. It also does not mean that folks won’t sue or argue that the rule is unconstitutional on other grounds. There are several clever lawyers out there, and they may be successful. I guess the point that I am trying to make is that the president and his lawyers appear to have done their homework — and they were already thinking about playing defense before Biden’s announcement. 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.

If you’re anything like me, the phrase “defund the police” certainly gets your attention. It’s a hot button in society at the moment, and is at least one proposed way to reduce racial disparities in policing. With that being said, I absolutely want everyone to be treated equally. I am not naive enough to think racial profiling does not exist. In support of this statement, I point to a couple of studies that have been recently completed. The first was done in 2018 by Kelsey Shoub, who is currently an assistant professor at the University of South Carolina. In this study, she and her fellow researchers studied 20 million traffic stops occurring in North Carolina. The study showed Black drivers were 63% more likely to be pulled over than whites — while driving 16% less than white drivers. Moreover, black drivers were 115% more likely to be searched than white drivers, even though contraband was more often found on white drivers. Fine, you say — but that was in North Carolina. Well, in 2020 the Stanford Open Policing Project investigated 100 million traffic stops across the nation and found similar disparities to those noted in the North Carolina study. In addition, the study found Black drivers were less likely to be pulled over after sunset because the darkness masks race, which supports a claim of bias in decisions to pull someone over. OK, I admit those are just studies, and as we all know, there are three types of lies: (1) lies; (2) damn lies; and (3) statistics. With that in mind, you are, of course, free to challenge the methodology of how the studies were conducted. Fine. For whatever reasons, you don’t like the studies. Then how about this? John Whetsel, chair of the National Sheriff’s Association traffic safety committee admits that racial bias in policing is a problem. Whetsel is a 50-year veteran of police enforcement in Oklahoma. In fact, until recently he was the sheriff of the county in which I reside. In light of the above, I think we can at least make an argument that racial bias in traffic stops could actually be a thing. So, if it is a thing, what do you do about it? Here’s where it gets interesting. In February of this year, in an attempt to reduce racial disparities in traffic stops, the Berkley, California, City Council voted to deprioritize traffic stops that were not related to public safety. This means things like not wearing a seatbelt or having an expired tag would not be a reason to pull someone over. Rigel Robinson, the council member who proposed the initiative, said the council was not trying to strip the police of the job of handing traffic stops; instead, they are simply trying to determine where the line is to combat the racial disparities. The good folks of the Berkley City Council are not trying to prevent the enforcement of parking violations or expired tags. Instead, they think this should be done through a new group of unarmed civil servants within the city’s transportation division. Well, our friend John Whetsel, of the National Sheriff’s Association, said, “To the mayor of Berkley and the city council, I would say you need to talk to the victim of a traffic crash before you do this, what I believe to be an idiotic move.” Whetsel argues that without traffic stops, fatalities would increase and potential leads would slip through the cracks. By way of example, he points out that Timothy McVeigh, the person responsible for the Alfred P. Murrah Building bombing in Oklahoma City, was pulled over and subsequently arrested for a missing license tag. In addition, Whetsel makes the point that “most criminals drive to and from work. If it’s a burglary or a bank robbery or a homicide, they’re generally not going to walk to and from the scene.” I gotta be honest with you. Whetsel makes valid points, and common sense supports what he’s saying. While racial profiling may exist, the movement to deprioritize certain traffic violations is not the way to fix the situation. Too many criminals are apprehended because of ordinary traffic violations to deprioritize the traffic stop. Of course, I don’t know the answer to solving this problem. Whetsel, while admitting the problem exists, believes it can be fixed through training. He may be right. Before we “throw the baby out with the bathwater,” so to speak, let’s start with that. Better training on these issues — and more accountability — seems to be the best place to start. 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 has been catching up on traveling recently and wasn’t able to provide a column for Sept. 15, 2021, edition of The Trucker. We hope you enjoy this article, originally published in September 2019. I was at a truck show recently when a driver, obviously distraught, approached me with a question. It turns out the driver’s truck had been broken into over the weekend, and he wanted to know what was going to happen with getting his belongings replaced. The truck was parked next to his house, on his property, while he and his wife were out of town for a wedding. The driver discovered his truck had been broken into when he returned the following night. According to the driver, the thieves took his microwave, TV, flux capacitor for the truck (it was a late model truck) and some additional personal belongings. The driver called the police, who said there was not much they could do because of the lack of evidence, but they did write the incident up as a burglary. The driver was understandably upset and wanted to know if he was just out of luck and would have to replace all his property out of his own pocket. The driver also wanted to know why the theft was written up as burglary and what, exactly, burglary meant. Common law describes burglary as “the breaking and entering the house of another in the nighttime, with intent to commit a felony therein, whether the felony be actually committed or not.” Most states have modified the common law definition and codified it into state laws to ensure punishment of the crime. The expansion of the definition has resulted in the “house” not needing to be a dwelling or even a building; it may include a vehicle such as a car, truck, boat, etc. The “breaking” does not usually mean physical breaking of property and the entry need not be at night. The intent to commit a felony has become the intent to commit any crime. Here in Oklahoma, we have first-degree and second-degree burglary. First-degree burglary applies to every person who breaks into and enters the dwelling house of another, in which there is at the time some human being, with intent to commit some crime therein, either (1) by forcibly bursting or breaking the wall or an outer door, window or shutter of a window of such house, or the lock or bolts of such door, or the fastening of such window or shutter; or (2) by breaking in any other manner, being armed with a dangerous weapon or being assisted or aided by one or more confederates then actually present; or (3) by unlocking an outer door by means of false keys or by picking the lock thereof, or by lifting a latch or opening a window. Anyone who does any of that is guilty of burglary in the first degree. Second-degree burglary is when someone breaks and enters any building or any part of any building, room, booth, tent, railroad car, automobile, truck, trailer, vessel or other structure or erection in which any property is kept, or breaks into or forcibly opens any coin-operated or vending machine or device with intent to steal any property therein or to commit any felony. Is the driver out of luck on getting his property replaced? The answer is “it depends.” The answer really boils down to whether the driver has renters’ or homeowners’ insurance. If you have not done so recently, take a look at your policy or call your insurance agent to find out what your policy covers and what your deductible would be should you find yourself in a similar situation to the aforementioned fellow. If you have vehicle insurance on your car or truck, you may be able to file the theft on that policy. Ask your insurance agent if you are covered. When making a claim, the best thing you can do is provide a copy of the police report, along with a description of what was stolen. In addition, if you can find the receipts for the personal items that were stolen, include them with your claim. This is a hassle, I know, but it will help your claim. For what it is worth, you may want to start taking pictures of the receipts for the things you would want replaced in this type of situation, and keep the photos on your phone. That way they are always handy, and you don’t have to keep all the paper receipts. Another way to protect your property is to take a video or photos of everything in your truck/house/apartment showing everything you own. Insurance companies want and need proof of what was stolen so they can determine what to pay you. Trust me, they will not just take your word for it. Again, you can do this on your phone, and if you utilize the cloud, you don’t need to worry about losing the information. Finally, if you are a company driver you may also want to check with your employer, if it was their truck, to see if their insurance covers anything, like your loss of property. As you can imagine, the driver I was talking to was angry about the entire episode and said something along the lines of, “If I had been there and caught whoever did this, man, they would be sorry….” Of course, the best thing that happened in this instance is that the driver was NOT there to confront the criminals when they broke into his truck. They might have been armed, under the influence of drugs or alcohol, or simply a group of kids with too much time on their hands. Nothing good is going to come of such a confrontation. At the end of the day, all they took was stuff — and “stuff” is replaceable. Brad Klepper is president of Interstate Trucker Ltd., a law firm entirely dedicated to legal defense of the nation’s commercial drivers. Interstate Trucker represents truck drivers throughout the 48 states on both moving and nonmoving violations. Klepper is also president of Driver’s Legal Plan, which allows member drivers access to his firm’s services at discounted rates. He is a lawyer who has focused on transportation law and the trucking industry in particular. He works to answer legal questions about trucking and life over the road. 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.