City Attorney Halts Plan To Sue Reckless Drivers

City Attorney Tearman Spencer halted a Milwaukee Police Department (MPD) plan to sue repeat reckless drivers in civil court as a means to impound their vehicles.

In an opinion released Monday, Spencer and deputy city attorney Todd Farris wrote that a proposed ordinance to declare 11 violations, including speeding, fleeing an officer, reckless driving and street racing, as a nuisance that can justify impounding the driver’s car, was too broad and therefore not enforceable.

The Common Council was otherwise poised to adopt the ordinance Tuesday morning. Since Feb. 24, 2021, 54 people have been pulled over and cited six or more times. Two of those individuals have been pulled over and cited 12 times.

“It’s disappointing they waited until the ninth hour to release it,” said Alderman Michael Murphy in an interview after Tuesday’s council meeting. “And it’s frustrating because we know in his own office, the attorney that had the most experience on it found it legal and enforceable and had already written up the complaint to file against the excessive repeat offenders.”

Murphy said the council was prepared to narrow the policy through an amendment, but the opinion came in too late to be able to do that Tuesday. The measure will now be sent back to the Public Safety & Health Committee.

City officials have sought to implement the new policy since 2021. A draft legal opinion was written by assistant city attorney Heather Hough. But Spencer, in December, also assigned the issue to attorney Nicholas Zales, then fired Zales in February. Hough recently submitted her resignation and is taking a job as the risk manager at the MPD.

Murphy and Ald. Jose G. Perez, during a January meeting on the issue, said Spencer was trying to be a policymaker instead of the city’s legal representative and was stalling the issue. No member of the City Attorney’s office appeared at the follow-up March 10 meeting to discuss the revised proposal, which a committee unanimously endorsed.

The strategy involves filing a civil lawsuit and obtaining a court order for better driving behavior. Those failing to comply could be subject to criminal or civil contempt, which would open up an opportunity to seize their vehicle or have them held in jail. Both opinions from the City Attorney’s Office suggested an ordinance would bolster the city’s case.

“If you are going to keep using vehicles to endanger our community, we are going, through the court, to take that vehicle,” said MPD chief of staff Nick DeSiato at the March meeting. He noted that Police Chief Jeffrey Norman didn’t consider this “a silver bullet” that would eliminate the problem, but a policy that could help.

But the City Attorney’s Office is now objecting to the structure of the ordinance.

“A single violation of a relatively minor traffic law is declared to be a nuisance per se,” wrote Spencer and Farris. “It is our opinion that an ordinance declaring habitual or repeated violations of the more serious traffic laws to be a nuisance per se would stand a much better chance of being upheld by a court in an injunction proceeding.”

DeSiato, at the March meeting, said a judge would define the number of occurrences using common law. The police chief, said his chief of staff, would have the discretion to pursue the cases against repeat offenders and has no intent, nor resources, to pursue individuals who have been pulled over only a couple of times in the past year.

Alderwoman Milele A. Coggs, on March 10, had suggested that the council instead define the frequency. Murphy and others said they were willing to amend the file at the council meeting, but the late opinion disrupted the ability to do so.

The City Attorney’s Office reviews all proposed ordinance changes for their legality and enforceability.

The ordinance is sponsored by Murphy, Perez, Acting Mayor Cavalier Johnson (in his capacity as an alderman), Mark Borkowski and Scott Spiker.