San Jose considering new spectator ordinance to crack down on street racing and sideshows

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

Police say the ordinance would help them crack down on dangerous activity and save lives. But some legal analysts are concerned the proposal 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 was scheduled to vote on the ordinance Tuesday afternoon. “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 would make it illegal to knowingly be a spectator at a street race or sideshow, either while the show is underway or 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 proposed ordinance raises some constitutional questions that will likely 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 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, that there is no legal duty to prevent or report a crime save for a few exceptions, like 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 civil remedies like zoning restrictions and impounding cars already exist that could achieve the same goal of deterrence.

But Garcia says the ordinance is a necessary “additional tool” to combat 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 she was struck by someone believed to be street racing. And later that 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.

“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, which have also grappled with sideshows, have similar spectator ordinances in place. The chief said police would enforce the ordinance against people actively blocking streets or making it difficult for police to crack down on participants.

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

“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.

Still, Clark, the legal analyst isn’t convinced.

“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,” he said. “We’ve never criminalized ‘misdemeanor being there.'”