Ft. Worth Police Department Offers *Real* Apology For Its Assistance In The NHTSA's Blood/Saliva Sampling 'Survey'

from the more-than-I-expected dept

As we noted last week, the Fort Worth Police Dept. found itself on the receiving end of lots of criticism for its participation in a "voluntary" collection of blood and saliva samples for the NHTSA (National Highway Traffic Safety Administration).

For one thing, having a squad of police officers flag you down and route you into a nearby parking space never feels "voluntary," no matter how easy it is to opt out once you're pulled over. For another, the paperwork signed by "volunteers" contained fine print that indicated consent had been assumed for the PD to "collect" information on the driver's state of intoxication with passive alcohol sensors.

After a local news report detailed the concerns of one citizen who consented to a breathalyzer (the NHTSA paid $50 for blood and $10 for saliva -- there was no compensation for submitting to a breathalyzer) because she felt it was the quickest way out of the "voluntary" collection, the Ft. Worth PD issued the following non-apology.

We apologize if any of our drivers and citizens were offended or inconvenienced by the NHTSA National Roadside Survey.
As I noted then, this apology was less than useless. This "apology" lays the blame at the feet of those who "felt" offended or inconvenienced by the voluntary-in-all-but-appearance sample collection. I suggested a more contrite apology that put the blame where it was due.
We apologize for the offensive and inconvenient "survey" we participated in.
I'm not suggesting the Fort Worth police chief reads Techdirt but here's the much better apology it issued via its Facebook page.
TO OUR CITIZENS:

The National Highway Traffic Safety Administration hired off-duty Fort Worth Police officers to assist with the Roadside Survey by providing traffic safety and security of cash used to pay survey participants. This survey was intended to be voluntary and was conducted by NHTSA personnel.

We are reviewing the approval process for this survey’s utilization of FWPD off-duty officers not only to ensure that our policies and procedures were followed, but also to ensure that any off-duty job is in the absolute best interest of our citizens.

We realize this survey caused many of our citizens frustration and we apologize for our participation.

I agree with our citizens concerns and I apologize for our participation. Any future Federal survey of this nature, which jeopardizes the public’s trust, will not be approved for the use of Fort Worth police.

Chief Jeffrey Halstead

*** Please express your concern with this survey to the media relations office with the USDOT NHTSA - Kathryn Henry 202-366-6918; kathryn.henry@dot.gov
While it's too bad this moment of clarity didn't strike before the PD assisted the NHTSA in its voluntary DNA draws (which the agency claims is anonymized and yet volunteers had to sign a participation form?), it is good to see that it realizes how involuntary this looked to drivers who were flagged down by the assisting officers. It's also good to see the FWPD will steer clear of these questionable ventures in the future. Hopefully, this will also clue the PD in on how the imbalance of power between law enforcement and citizens often makes voluntary actions seem like anything but.

"Jeopardizing the public trust" is never smart, especially when the success of your work depends heavily on being perceived as trustworthy by the public. And trust isn't something that's easily earned back, not when the public perception of law enforcement as the "good guys" is steadily trending downwards.

Also of note: Chief Halstead may want to be careful about whose contact information he posts publicly. The NHTSA contact info may be publicly available but encouraging citizens to contact media relations representatives has been found to be an arrestable offense in other jurisdictions.



Reader Comments (rss)

(Flattened / Threaded)

  •  
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    That Anonymous Coward (profile), Nov 25th, 2013 @ 8:39pm

    If they were off duty why were they in their uniforms?
    Because that allowed them to get more people to participate.
    If it was voluntary, why were people not given the option to proceed on their way? They were forced to turn into this circus on the side, with no option to refuse until they were already waylaid. People in uniforms suggesting it is just voluntary has a way of not looking like you have a choice.

    Sure hope they paid your officers enough to have them turn on the citizens who are required to pay them and follow their directions.

     

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      aldestrawk (profile), Nov 25th, 2013 @ 10:27pm

      Re:

      I am sure the NHSTA and PIRE (the contracting research outfit) used the presence of uniformed police to encourage participation in the survey by getting them to make that initial stop. Even stopping was voluntary and a number of vehicles in the 2007 study did not stop. The statistical accuracy of the study is dependent upon minimizing refusals otherwise the sampling is skewed from random. The percentage of refusals in 2007 represented a significant increase over the previous study and was a concern. Considering what has been revealed in the past few months about the government collecting information I would expect the strategy of using police to encourage the initial stop would result in even more refusals than before. The study will be much better off having no police presence whatsoever. Additionally, they need to drop the initial surreptitious measurement with the Passive Alcohol Sensor (PAS). Despite the assurance that this is OK under government human research guidelines, I think it is not OK and it is not ethical to do this before consent is given. That measurement makes sense if only considering the statistical validity of the study. However, that practice generates mistrust and will end up decreasing participation in future studies.

       

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    •  
      identicon
      Anonymous Coward, Nov 26th, 2013 @ 2:54am

      Consent [was Re: ]

      If it was voluntary, why were people not given the option to proceed on their way?

      Because the law has different ideas about voluntary consent than you and me. The judges routinely find “consent” to search and seizure—in circumstances where an ordinary person worries about getting dragged off to jail for refusal. The police play this game repeatedly.

      Just for example, take this case decided recently up in Oregon. In this example, the court decides:
      A mere request for identification made by an officer in the course of an otherwise lawful police-citizen encounter does not, in and of itself, result in a seizure.

      This court does acknowledge:
      To be sure, as we have already discussed, a person tendering identification to an officer may not subjectively feel comfortable refusing the officer's request. Instead, for any number of personal reasons or instincts, the person may be unwilling to decline the officer's request.

      But the court says:
      Those internalized motivations and feelings, however, are not the test for whether there is a seizure

      In contrast to this Oregon court, ordinary, reasonable people understand that when the cops demand ID (and it is a demand, no matter how they phrase it) then you hand them your papers, and then wait until you're free to go. That's what ordinary, reasonable people understand.

      The police play this game repeatedly.

       

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  •  
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    aldestrawk (profile), Nov 25th, 2013 @ 11:00pm

    free beer and paranoia

    DNA analysis is not part of this study. The saliva samples are only used to measure the level of several classes of drugs. Sure, you have to trust the federal government that they are not surreptitiously collecting DNA samples. I have to say, I do support these kinds of studies and trust them in this very narrow sense. After all, if they really want MY DNA sample all they have to do is offer free beer in the park and collect the cup that I threw out and was already marked as being my sample. Frankly, I'll probably take that free beer, but I will still refuse to give anything more than my identity when the police stop my car, encrypt my Internet communications, and cloak my browser configuration.

    Any human study requires consent and that means signed consent. That doesn't mean that the study cannot be anonymized. The signature is stored separately from the rest of the data and does not need to be tied to your particular samples unless you, as a subject, have an interest in seeing the results after the study is completed. The researchers working up the data never see a name attached. Only PIRE should have access to the raw data which, in this particular study, should be truly anonymized with no way to match samples with names. Again, we're down to trusting the government. I have no wish to live my life paranoid about everything. So, I choose, hopefully wisely, concerning what I need to be paranoid about.

     

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  •  
    identicon
    Anonymous Coward, Nov 26th, 2013 @ 3:25am

    Paid vacation in

    3...2...1..

     

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    kenichi tanaka (profile), Nov 26th, 2013 @ 3:44am

    I don't blame the police for this at all.

    I blame these idiot drivers for not realizing that something was fishy about this since they were being offered money to provide samples of their saliva or blood.

    These idiot drivers were stupid in the first place for not exercising their rights and refusing to participate.

    Want to know why I blame these idiot drivers for this? Because law enforcement NEVER offers money to you to provide any kind of samples.

    THEY GET A COURT ORDER, VIA A WARRANT, FOR YOU TO PROVIDE THAT SAMPLE. THEY DO NOT OFFER YOU MONEY TO DO SO.

     

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      identicon
      Anonymous Coward, Nov 26th, 2013 @ 4:07am

      Re:

      These idiot drivers were stupid in the first place for not exercising their rights and refusing to participate.

      And this idiot 19-year-old driver in San Antonio was stupid in the first place for not exercising her rights and refusing to participate.

      On-duty officer sexually assaults 19-year-old during traffic stop, police say”, by Andrew Delgado & Gary Cooper, KENS 5, November 23, 2013:
      SAN ANTONIO -- Officer Jackie Neal, 40, was in full uniform, in a marked squad car and on-duty when he made a traffic stop Friday morning and sexually assaulted a 19-year-old woman…

      The 19-year-old should have realized that law enforcement NEVER pulls you over and gets you standing behind the squad car.

      Don't blame the police. Blame the idiot drivers who consent.

       

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      Anonymous Coward, Nov 26th, 2013 @ 5:25am

      Re:

      Alright, woohoo! - blame the victim !

       

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  •  
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    Jeremy Lyman (profile), Nov 26th, 2013 @ 4:26am

    Say what?

    Wait, so you can just hire off-duty cops to direct motorists into whatever film-flam you have set up? Can I look forward to being hijacked into a high school car wash, roadside Flower Truck, or the McDonald's drive thu in the near future?

    "I'm sorry sir, you don't have to buy any McNuggets, but you're already here, so..."

     

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    •  
      identicon
      Anonymous Coward, Nov 26th, 2013 @ 4:46am

      Re: Say what?

      Wait, so you can just hire off-duty cops to direct motorists into whatever film-flam you have set up?

      Well, you can get on-duty cops to pull over motorists. At least in Oregon. Probably Texas, too.

      In that recent Oregon case, that I mentioned earlier, one of the concurring justices quotes another recent Oregon decision. In Brewer, J.'s concurrence, on p. 61 in the PDF (p.4 of concurrence), the justice quotes from State v. Fair (Oregon, 2013):
      As [State v. Gerrish (1991)] emphasized, especially in the case of a motorist, halting and briefly detaining a citizen, even when done pursuant to an officer's show of authority, is often a nonintrusive and socially inoffensive way to seek a citizen's cooperation or impart information. The important distinction in both cases was the public nature of the encounter and the practical reality that authoritatively halting the passing motorists is often the only practical means for police to have an exchange with them. No seizure occurs because the police conduct is not a socially intrusive exercise of police authority in those particular settings and circumstances."

      (Emphasis added.)


      • “[A]uthoritatively halting the passing motorists is often the only practical means for police to have an exchange with them.”

      • “No seizure occurs because the police conduct is not a socially intrusive exercise of police authority.”

      Texas, of course, has different case law than Oregon. But not that different. I'm just using Oregon as an example because I have a recent reference handy. And this is happening in all 50 states.

       

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        Jeremy Lyman (profile), Nov 26th, 2013 @ 4:59am

        Re: Re: Say what?

        Mind. Boggling.

        Okay, important follow-up:
        Can an off-duty cop direct me to the aisle of a movie theater and then take my seat once I'm standing?

         

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          identicon
          Anonymous Coward, Nov 26th, 2013 @ 5:10am

          Re: Re: Re: Say what?

          Can an off-duty cop direct me to the aisle of a movie theater and then take my seat once I'm standing?

          He's carrying a gun, isn't he?

           

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    Darth Vader, Nov 26th, 2013 @ 5:27am

    Apology accepted

     

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    Anonymous Coward, Nov 26th, 2013 @ 5:35am

    surely the first thing to get sorted out over these 'voluntary' checks is that if indeed voluntary, that means people who do not wish to participate, dont have to participate! from what i read previously, people were directed in a particular direction with no option other than to take that direction! hardly voluntary, it seems!

     

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    •  
      identicon
      Anonymous Coward, Nov 26th, 2013 @ 6:43am

      Re:

      hardly voluntary, it seems!

      Here's another recent example of “voluntary consent”. This example happens to be from the Ninth Circuit:
                NOT FOR PUBLICATION

       . . . The district court didn’t clearly err when it found Hardy’s consent to the officers’ entrance into the room to be voluntary. . . . [A]lthough he
      wasn’t told that he didn’t have to consent, he knew he could say no: He twice refused to let the officers in the hotel room and withheld consent to search the backpack.

      Because Hardy consented to the entry into the hotel room, we need not address whether Hardy had a reasonable expectation of privacy in it. . . .

                AFFIRMED.

      Did you catch that? The defendant twice refuses, therefore he knows he can refuse, and thus the conclusion follows that he voluntarily consented.

      Let me run that by you again. The defendant refused entry twice. Refused. Twice. Because the defendant refused entry twice, he is aware of his right to refuse. So, necessarily, when the police do gain entry, the defendant is found to have consented. Therefore voluntarily consented.

      No wonder the opinion isn't fit for publication.

      Again, Texas is not the Ninth Circuit. But this is nationwide. And it's going on all the time.

       

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  •  
    identicon
    Pixelation, Nov 26th, 2013 @ 7:59am

    If?

    "if any of our drivers and citizens were offended or inconvenienced"

    If?

     

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    •  
      identicon
      Anonymous Coward, Nov 26th, 2013 @ 8:35am

      Re: If?

      If?

      Read the reaction of one of the people who was stopped. Does she sound offended?

      From the NBC DFW story:
      "It just doesn't seem right that you can be forced off the road when you're not doing anything wrong," said Kim Cope, who said she was on her lunch break when she was forced to pull over at the roadblock on Beach Street in North Fort Worth.

      The NBC report has additional reaction from Ms. Cope. They also quote her as saying, "It just doesn't seem right that they should be able to do any of it“, and further going on to say, “None of it felt voluntary."

      Does that sound like someone who was offended or inconvenienced? Are you offended by things that just don't seem right?

      Maybe it's necessary to state, “This is not right.”

       

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  •  
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    Not an Electronic Rodent (profile), Nov 26th, 2013 @ 8:45am

    Double bluff?

    Please express your concern with this survey to the media relations office with the USDOT NHTSA - Kathryn Henry 202-366-6918; kathryn.henry@dot.gov
    Does this mean they're planning to follow up intimidating everyone with arresting everyone? /sarc

     

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