About Buckhead reporter. (Sandy Springs, GA) 2007-current | View Entire Issue (Sept. 2, 2020)
BH 2 | Public Safety Facebook.com/TheReporterNewspapers ■ twitter.com/Reporter_News New street racing law does not ban all spectators BY JOHN RUCH jchnruch@reportemewspapers.net A new Atlanta city ordinance widely reported by media and public officials as outlawing all spectators at illegal street races actually does no such thing due to the quiet removal of key language that could have violated the civil liberties of journalists, bystanders and others. The ordinance — which does not even contain the word “spectator” — may still outlaw certain types of race observers who do more than just watch, such as those who pay an admission fee or even just cheer for a driver. But one prominent civil liberties attorney says the ordinance is so vague and “poorly written” that it would be challenging to apply to spectators and could still lead to unconstitution al arrests of innocent by standers, reporters and others. The main effect of the ordinance approved by the City Council Aug. 3, dubbed “Non-Driver Par ticipation in Street Rac ing and Reckless Driv ing Exhibitions,” is to reinforce existing state law against street rac ing by specifically out lawing other participants — such as those riding along or paying to join — and calling for maxi mum penalties to be en forced. Meanwhile, some officials and residents say, a lack of large-scale police response means the noisy and dangerous late-night racing continues to plague such areas as Buckhead, where City Councilmember J.P. Matzigkeit recently hired an off-duty offi cer himself as a gesture of increased en forcement. The misreporting of the ordinance’s effect on race-watching is based on early publicity for lead sponsor Councilmem ber Dustin Hillis’s intent to crack down on street racing in part by killing demand by punishing spectators. But key elements of his draft ordinance later were quietly withdrawn, apparently due to concerns they would conflict with state law or the U.S. Constitution’s Bill of Rights — includ ing a provision that would have banned photographing, filming or broadcasting races. When the ordinance passed, such ma jor media as the Atlanta Journal-Consti tution, WSB-TV and CBS46 incorrectly reported that race-watching by bystand ers was now illegal. “Watching street rac ing in Atlanta could land you $1,000 fine or even jail time,” said an Aug. 4 head line on a WSB-TV website story that also incorrectly reported that “just standing around watching and recording” races was now illegal. The national auto maga zine MotorTrend picked up the story un der the headline, “Even watching a street race in Atlanta could net you a huge fine; It doesn’t matter that you’re not doing the racing, you’re in trouble.” Matzigkeit made similar claims in his Aug. 7 constituent newsletter, reporting that the council “unanimously passed stiffer penalties for spectators... We need people engaging in illegal drag racing, as a participant or a spectator, to be arrested.” But the final version of the ordinance says nothing explicit about banning spec tators. In fact, its only direct reference to spectators is to exempt from arrest those who are “a mere bystander, passerby or observer not aware of the illegal activity.” And in the council meeting where it was approved, Susan Garrett, a city attor ney heading the Law Department’s pub lic safety division, explained that “this leg islation does not allow people to be cited just for being present or watching. They have to actually do something — collect money, ride in the vehicle, or take some other affirmative action to participate in putting on the event. It’s not directed [at] and can’t be used just for a bystander.” “There are no prohibitions to merely being a spectator, so you read it correctly,” said Hillis in an Aug. 10 email when asked to clarify the meaning of the ordinance. Hillis did not respond to further ques tions as to why the ordinance’s language had changed and whether an official clar ification would be issued to dispel the con fusion and misreporting about spectators. Matzigkeit referred questions about the language to Hillis. Mayor Keisha Lance Bottoms’ press office, the City Council press office and the Atlanta Police Depart ment also did not respond to questions about the ordinance and how it would be enforced. Early concerns about the civil liberties aspects of the original draft were raised online by Dan Grossman, an attorney known for his role as the lead counsel for plaintiffs who sued the city over the infa mous 2009 APD raid of Midtown’s Atlanta Eagle gay bar. Grossman says the final ver sion of the street racing ordinance is bet ter, but is still concerning because it could be read as prohibiting spectators who do know a race is illegal but have every right to view it — including journalists and an gry neighbors. “This is a really, really poorly written statute,” said Grossman. “...There’s this giant hole big enough to drive a truck through, or a prisoner van through, in the middle.” Grossman said that in practical terms, police officers would find it challenging to determine who in a crowd is a “non-driver participant” or not. The widespread mis reporting that all spectators are outlawed could influence officers’ thinking and lead to indiscriminate arrests, he said. “And so there’s a great like lihood that officers will be making an unlawful arrest, especially because of the way the law has been described in the press,” said Grossman. “This law has been described, I would say, irresponsibly by major news organizations like the AJC... This is an invi tation to trouble.” Street racing crack downs Illegal street racing, some times involving dozens of ve hicles and hundreds of spec tators, is a longstanding issue in metro Atlanta. The Ga. 400 highway, with its long straightaways, is notorious for late-night racers. In Buckhead, racers frequent ly appear on Peachtree Road and gather in huge parking lots like the one at The Dump Furniture Outlet on Sidney Marcus Boulevard. But with the reduced traffic of the CO- VID-19 pandemic, street racers have tak en advantage, appearing more frequently, for longer periods and in bigger numbers. In May, APD, the Georgia State Patrol and other agencies collaborated on a citywide crackdown that resulted in 44 arrests, 114 tickets and 29 vehicles impounded. That same month, Hillis, who repre sents Northwest Atlanta’s District 9, was in the news with calls for a tougher street racing ordinance. He aimed to crack down not only on drivers, but “also to tar get and penalize individuals who are spec tators,” a City Council press release said at the time. He wanted up to 6 months in jail and a $1,000 fine for anyone racing or watching a race. Hillis’s original legislation outlawed not only driving in a street race, but also being a race organizer or being a non driver participant. In the original version, a participant was defined “any individual who is present at an illegal street racing exhibition for the purpose of taking part in the event, by riding in a race vehicle as driver or passenger; assisting or engaging with the organizers and/or drivers in car rying out the event; photographing, film ing, recording, and/or broadcasting the event; or who exchanges money or any thing of value with any driver, car owner, or other participant in connection with the event.” Legal speed bumps The ordinance quickly hit speed bumps. Responding to a CBS46 story about Hillis’s proposal, Grossman took to Twitter to question the constitution ality of banning the recording of public events. And the June 1 City Council meet ing, where Hillis appeared to expect a quick approval, happened to come at the height of the George Floyd protests over police brutality and racism. In that council meeting, Councilmem ber Joyce Sheperd, chair of the Public Safety and Legal Administration Com mittee, said the Bottoms administration had asked for the ordinance to return to the committee for further review and re search. Sheperd also cited the context of the ongoing protests. Councilmember Howard Shook said the Law Department had expressed concerns about the ordi nance. When the ordinance returned to the council for a vote Aug. 3, the language bar ring photos, videos and broadcasts was gone. Hillis told the council that deletion was due to concerns from the public and councilmembers, and that the revisions were made in consultation with the ad ministration. The “participant” definition was tweaked to emphasize that offenders must be “knowingly” and “actively” join ing the race. And a new line appeared: “For the purposes of this section, a person who is a mere bystander, passerby, or observer not aware of the illegal activity shall not be deemed a participant.” The Law Department had more bad news for Hillis. References to drivers were cut because existing state law already cov ered them. Another provision requiring that seized race cars be impounded for 30 days or until the driver’s case was adju dicated was likely unlawful, Law Depart ment attorneys told the council. Coun cilmember Carla Smith pleaded for the clause to remain as “the only tooth in this legislation” and it did, but with additional language that the impounding period can be up to the maximum under state law — which, the city attorneys said, is never 30 days or the period of adjudication. The language prohibiting the organiza tion of a race remained intact, also with a “knowingly” added. The other main change was setting a minimum fine of $1,000 instead of a lower range, which is limited by state law; the ordinance also al lows for up to 6 months in jail. Editor’s note: Dan Grossman previously rep resented this reporter in an unrelated legal case. SPECIAL An Atlanta Police Department photo of a car being impounded during a multi-agency crackdown on street racing in Atlanta in May 2020.
