I live a fair distance from work, so I spend a fair bit of time driving on interstate highways. Because I do, I have a fair opportunity to observe the rather unfair doings of the New Jersey State Police on our interstate highways. This is the kind of behavior I see just about every day:
And this is the kind of behavior I’ve seen more than once (albeit by local police, not by state troopers):
I once saw a Glen Ridge police officer tailgate and then crash into the car he was tailgating, in part because he was lighting a cigarette while doing so. Having crashed into the car in front of him (at a red light), he called in backup, surrounded the victim’s car, then aggressively interrogated her at the scene–presumably for the crime of his having crashed into her. (This despite the fact that liability for rear-end collisions is almost always pinned on the car in the rear.) I wish I’d recorded it, but I didn’t have a cellphone at the time.
“Entrapment” is a defense against a criminal charge, and consists in a government agent’s inducing a criminal act in order to prosecute it, in a person who would have otherwise have not committed the act. Here, and in the pages following, is the U.S. Department of Justice’s account of the elements of entrapment, along with recent cases, and other pertinent material.
As might be surmised, a defense based on a counterfactual conditional is going to be hard to establish: it’s going to be tough to prove that you wouldn’t have done what you ended up doing, even if there ends up being some fact of the matter about counterfactual conditionals. And on the standard legal analysis, to prove entrapment, not only do you have to prove that you wouldn’t have committed the crime; you have to prove that you had no “disposition” to commit it.
Honestly, I’m not even sure what “disposition” means in this context, and the case law doesn’t really help. I’m guessing that this is a situation in which it really wouldn’t pay to be a Freudian, since Freudians think that we have “dispositions” to do just about everything (in the form of repressed id-generated desires). I’d really hate to be Oedipus trying to plead entrapment against charges of parricide and incest.
Oedipus, to the court: I wouldn’t have killed my father or married my mother, even though I did. Not only that, I had no disposition to do so!
Would Oedipus have to prove that he didn’t have an Oedipus Complex?
Ahem. To adopt (and adapt) the Wikipedia definition, “tailgating” is the act of one car, B’s, following so closely behind another vehicle, A, that a sudden stop by A would cause B to collide with A. “Tailgating” is a colloquial rather than legal term, but it captures a widespread and familiar phenomenon.
I don’t know what studies have been done on the subject, but I take it as obvious that police officers do tailgate. Again, I haven’t studied the subject in a formal way, but I also take it as obvious that one reaction that people have to being tailgated is to try their best to get out of the tailgater’s way. And again: I haven’t studied the subject formally, but I think it’s obvious that one common way of getting out of a tailgater’s way is to speed up, in order to put room between the two cars (decreasing the possibility of a collision), then move out of the tailgater’s way. If none of this is obvious to you, sue me.
I know I’m just trading in sheer intuitions here, but it seems obvious to me that drivers have a strong incentive to get out of the way of a police car that’s tailgating them; fear or anxiety aside, there’s also the thought that perhaps the police car is in a rush and on its way to an emergency. In that case, the natural inference is that they’re tailgating you because you’re driving too slowly, and you’re in their way. It then becomes a natural reaction to speed up and get out of the way. Maybe I’m over-relying on the concept of “the natural” here, but I think normal people would understand me, as would any cops or lawyers who qualify.
Now take a case in which a police officer tailgates you, inducing you–out of fear and/or concern–to speed up when you were previously traveling within the legal speed limit. Suppose that in speeding up, you violate the speed limit. Now suppose that you’re pulled over and cited for speeding. It seems obvious to me that that’s entrapment, so that an entrapment defense against the charge of speeding ought to work in this case.
Call me crazy, but it also seems obvious that besides being a case of entrapment, police tailgating is dangerous and unnecessary. I’d always thought that law enforcement was there to make driving safer. But arguably, tailgating makes it more dangerous. Which seems counter-purposive. And if tailgating is entrapment, the entrapment induces speeding–which compounds the dangers, and compounds the counter-purposive nature of the whole endeavor. I’m sorry if this sounds like wild-eyed conspiracy theorizing; it’s just how I see things.
And it seems obvious to me that if tailgating is a common police practice, as are quotas for speeding tickets (look at this, too), it’s absurd to defer to the testimony of a police officer who denies tailgating someone as against a defendant who claims to have been tailgated. If I say I’ve been tailgated, and you say you weren’t tailgating, and there is no evidence conclusively favoring either of us, the hard fact is that there surely isn’t evidence to believe you simply because you’re a state trooper, and state troopers are always to be believed.
Speaking of the perils of in-court testimony, I once had a judge tell me that he was convinced that I had run a stop sign, partly because Officer So-and-So had said I had–and he’d never known Officer So-and-So to lie. But the other reason he was convinced I’d run the stop sign (he continued) was that everyone ran that stop sign, or rather, everyone but him ran it. Since I was undeniably “everyone-but-him,” it was obvious enough that despite my denials, and despite the absence of any direct evidence of having run it, I surely had run the stop sign. “You may even sincerely believe that you didn’t run the stop sign,” he intoned, “but you did.” Guilty as charged. I entered the courtroom sincerely believing that I enjoyed a presumption of innocence before the law; having watched that presumption evaporate in a cloud of rhetorical vapor, I left the courtroom realizing that my belief in the legal presumption of innocence had been an illusion. (By the way, if you want to see what can really go wrong in cases of this nature, read this case.)
As I say, all of that seems obvious to me. But none of it seems obvious to law enforcement or to the legal profession. It doesn’t seem to be widely conceded among them that tailgating is a standard police procedure. When it is grudgingly conceded, it’s not regarded as problematic; it’s treated as a Standard Operating Procedure. Even if the most egregious cases are regarded as problematic, tailgating is generally not regarded as entrapment. I don’t know this for sure, but I don’t think that courts easily accept entrapment defenses in cases of police tailgating. (Judges write as though the issue never came up in the world they inhabit.) And as my example above suggests, it’s common practice for traffic court judges to give a presumption of credibility to a police officer in traffic cases, a presumption not accorded to the defendant–a practice that strikes me as flatly and obviously incompatible with the presumption of innocence, but doesn’t seem to bother legal professionals one bit. Finally, going by what I’ve read online, commenters–including defense attorneys–will troll anyone who invokes an entrapment defense, however meekly or commonsensically. Their central argumentative strategy seems to consist in trying very, very hard to miss the point.
When I’ve asked legal professionals about this, the response has usually been something to the following effect:
Existing legal and law enforcement practices may be inconvenient at times, but they work well. Changing them would be unfeasible, unrealistic, and unworkable, and would be a classic case of adopting a cure worse than the disease. We obviously need traffic enforcement, indeed, we probably need more stringent traffic enforcement than we have; traffic anarchy would cost lives and money. The standards and practices we currently use save lives and money. Hence they are both necessary and just, and should stay the way they are. Radical changes to those practices would entail anarchy, and should be rejected out of hand.
I’m curious if PoT readers know anything worth reading on this or related subjects. On the whole, I haven’t found anything worth reading. That said, I’m not a legal professional, and I’m not working with a particularly robust database, so I’m probably looking in all the wrong places.
And no, I haven’t recently been pulled over or received a speeding ticket.