San Jose to punish spectators in effort to crack down on street racing, sideshows

In an effort to curb street racing and sideshows, San Jose adopted a new ordinance that will make it a crime to attend the illegal gatherings as a spectator.

Police say the ordinance will help them crack down on dangerous activity and save lives. But some legal analysts are concerned it could ensnare innocent bystanders.

“State law provides ample basis to enforce against participants in street racing, but the department currently struggles to enforce against spectators,” San Jose Police Chief Eddie Garcia wrote in a memo to the City Council, which unanimously approved the ordinance Tuesday. “Given the important role spectators play in encouraging, popularizing and facilitating these events, discouraging their participation would be an important step in combating the problem.”

The ordinance, set to take effect within a couple of months, will make it illegal to knowingly be a spectator at a street race or sideshow, either while the show is underway or when people are preparing for it to begin. Spectators could get a misdemeanor and face fines of up to $1,000 or six months in county jail, or some combination of the two.

But legal analyst Steven Clark, a criminal defense attorney and former Santa Clara County prosecutor, said the ordinance raises some constitutional questions that likely will have to be sorted out by the courts.

“What you’re suggesting here is that the mere watching of criminal behavior means you can be punished criminally,” Clark said. “That raises some conceptual problems. You can’t be punished for a crime you didn’t commit.”

“From the law enforcement point of view, spectators are part of the criminal activity because of the symbiotic relationship between racers and spectators,” Clark acknowledged. “If you remove spectators, you remove the incentive to participate.”

Still, Clark said, there is no legal duty to prevent or report a crime save for a few exceptions, such as mandatory reporting laws for teachers and therapists.

“There is a fine line between watching a crime and aiding and abetting a crime,” Clark said. “Encouraging and cheering on criminal behavior could be construed as aiding and abetting. But mere standing around — there’s a question about whether that goes too far.”

Clark said if people disobey a police dispersal order, that falls into the arena of existing criminal statutes for obstructing police work. He added that existing civil remedies such as zoning restrictions and impounding cars could achieve the same goal of deterrence.

But Garcia says the ordinance is a necessary “additional tool” to fight a problem that has turned deadly in the past.

In early 2015, 24-year-old jogger Kiran Pabla was killed by a driver alleged to be involved in a street race. Later that year, 20-year-old Alyson Snow was killed in her car when struck by someone believed to be street racing. And later that same year, three teens were killed in a street race. Last October, Lorraine Garcia was killed when her taxi cab was struck by a car alleged to be street racing.

In their own memo, council members Maya Esparza and Johnny Khamis endorsed the ordinance and called on the city to consider approving overtime staffing for the racing enforcement detail team this summer, when the number of races and sideshows with cars drifting and doing burnouts and donuts is expected to increase, and to explore dedicating more funding to combating the gatherings.

“Each of these senseless deaths is one too many,” the pair said, “and it is our responsibility to ensure that our law enforcement officers have the necessary tools to keep our residents safe.”

In his memo, Garcia noted that a number of Southern California cities and counties that also grapple with sideshows have enacted similar spectator ordinances. The chief said police will enforce the ordinance against people actively blocking streets or making it difficult for officers to crack down on participants.

At Tuesday’s meeting, Lt. Brian Anderson said that while each city operates differently and “we don’t have any data on how effective it has been in other cities … it will allow us to start doing enforcement before large groups can establish in a certain area.”

In an interview Tuesday, Khamis said that Almaden Expressway, which runs through his district in south San Jose, “might as well be called Almaden Raceway.”

“It’s happening at all times of day and really at all parts of the city,” Esparza said. “In my district, they’re weekly.”

Garcia said curbing sideshows and races has gotten increasingly complicated with the rise of social media, which organizers use to ask people to block intersections or clear stretches of road.

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How a really big check unraveled a well-oiled patronage system with Santa Clara County concealed-gun permits “This behavior can expose street racing to a broader audience and potentially perpetuate the activity and increase its popularity,” Garcia said, noting that the shows attract other criminal activity such as fights, gambling and public drinking.

Mayor Sam Liccardo agreed.

“That’s how they get a big following,” Liccardo said. “That’s how they sustain themselves.”

Still, several council members — including Lan Diep, Sylvia Arenas and Raul Peralez, who worked as a police officer — expressed some concerns.

Diep said he wanted to give police officers the tools they need but said the ordinance “might be overly broad or provide too much discretion to an officer.”

Arenas and Peralez worried that the council was moving too quickly to adopt an ordinance without exploring other ways to shut down races and sideshows first.

Clark isn’t convinced, either.

“To say we’re going to put you in jail for watching something, that seems to be stretching the criminal justice system to a questionable point,” the legal analyst said. “We’ve never criminalized ‘misdemeanor being there.’ ”

Garcia pushed back at that idea, however.

“There are actually other crimes where mere presence is in fact illegal,” he said. “For example, being present at a dog/cock fight in it by itself is a crime, where it’s been recognized that there is a nexus between spectators and the criminal act, so we’re not exactly breaking constitutional ground here.”

And, Garcia said, officers have discretion when it comes to enforcing the ordinance and will do community outreach on the issue in the coming months.

Liccardo agreed.

“It’s not just a matter of being there,” he said. “They’re helping enable” illegal races and sideshows.

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