By Adam Pagnucco.
Last February, Council Member Will Jawando introduced a bill to restrict the authority of county police officers to make traffic stops. Council Member Kristin Mink co-sponsored the bill. At the request of Council President Evan Glass, Attorney General Anthony Brown examined whether the bill conformed to state law. And he has issued an opinion finding that Jawando’s bill is partially, but not entirely, preempted.
The opinion begins with these five paragraphs:
*****
The Maryland Vehicle Law—the State statute regulating the use of motor vehicles—defines numerous offenses for which police officers may issue traffic citations. Motor vehicle offenses can be categorized as either “primary” or “secondary.” If a police officer observes a primary offense, they may ordinarily stop and cite the driver for that offense, without more. But an officer cannot stop a driver for a secondary offense standing alone. Instead, an officer may issue a citation for a secondary offense only after stopping the driver for a separate primary offense. A bill pending before the Montgomery County Council—the Safety and Traffic Equity in Policing Act, or “STEP Act”—would require Montgomery County police officers to treat certain traffic offenses as secondary, even though the Maryland Vehicle Law has not defined them as such. The STEP Act would also limit Montgomery County officers’ ability to ask for consent to search a vehicle, or its occupants, during a traffic stop.
On behalf of the Montgomery County Council, you requested an opinion of the Attorney General on whether the Maryland Vehicle Law would preempt the STEP Act. In accordance with our policy on opinion requests, you provided a memo from the County Attorney concluding that the Vehicle Law would preempt the provisions of the STEP Act relating to secondary offenses but that the STEP Act’s remaining provisions would be valid. You also provided a memo from a Legislative Attorney for the Council, concluding that the Vehicle Law would not preempt any portion of the STEP Act.
In our view, the Vehicle Law would expressly preempt the STEP Act’s provision designating certain traffic offenses as secondary. Under the Vehicle Law, no local government may make or enforce a “local law, ordinance, or regulation on any subject covered by the Maryland Vehicle Law.” Md. Code Ann., 82 [108 Op. Att’y Transp. (“TR”) § 25-101.1(b)(3). As we will explain, the Maryland Vehicle Law covers the subject of which motor vehicle offenses are subject to primary enforcement and which are subject to secondary enforcement. More specifically, the Vehicle Law establishes a general rule that all motor vehicle offenses are subject to primary enforcement. It then exempts certain specific offenses from that rule, explicitly providing secondary enforcement for those specific offenses. Because the Vehicle Law addresses the subject of primary versus secondary enforcement, and because the General Assembly has chosen to designate certain offenses as secondary while leaving the rest as primary, a local law designating further offenses as secondary would address a subject that the Vehicle Law covers and would thus be preempted.
Although the Vehicle Law reserves certain powers to local governments, none of those reserved powers would authorize the secondary-offense provisions of the STEP Act. To be clear, we do not question a local government’s general authority to establish rules for its own police department. Nor do we address a local legislative body’s ability to set enforcement priorities for its local police department in areas not subject to express preemption. We conclude only that, whatever legislative authority a local government otherwise has, the General Assembly has overridden that authority for subjects the Vehicle Law addresses, including the subject of which motor vehicle offenses are secondary.
On the other hand, the Vehicle Law would not preempt the STEP Act’s remaining provisions. In particular, the Vehicle Law would not preempt the STEP Act’s limitation on consent searches. That provision would preclude an officer from requesting consent to search a vehicle or its occupants during a traffic stop, unless there is at least reasonable suspicion to believe a crime has been committed. The Maryland Vehicle Law does not address the subject of searches during traffic stops. The consent-search provision also would not tread on an impliedly preempted field. Nor would it conflict with any provision of the Vehicle Law, because, again, the Vehicle Law does not address searches. There is thus no basis to say that the Vehicle Law would preempt the consent-search provision.
*****
The opinion goes into considerable detail across its 27 pages on state law and local authority. Its conclusion, which follows, reiterates what is preempted in Jawando’s bill and what is not.
*****
In our opinion, the Maryland Vehicle Law would preempt a local law, such as the STEP Act, that would designate a violation of the Vehicle Law as secondary when State law has not designated it as such. This is because the determination of which motor vehicle offenses are primary, and which are secondary, is a subject covered by the Vehicle Law. And neither the local power to regulate “stopping, standing or parking,” TR § 25-102(a)(1), nor the local power to “regulate traffic by means of police officers,” TR § 25-102(a)(2), authorizes a local government to redesignate a Vehicle Law offense from primary to secondary status. On the other hand, the Vehicle Law would not preempt a local law limiting a local police officer’s ability to request consent to search during traffic stops. Because the Vehicle Law does not address the conditions under which searches are permissible, such a local law would neither intrude on a subject covered by the Vehicle Law nor conflict with the Vehicle Law.
*****
This opinion does not kill Jawando’s bill entirely. Jawando and the rest of the council must now determine whether the non-preempted sections of his bill are worth passing.