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FMCSR Week 10: A Wink and a Nod

In 1971, legendary British band “The Faces” released their best-selling record A Nod Is as Good as a Wink…to a Blind Horse. This old English phrase carries a sinister overtone. A nod and wink is a subtle cue for someone to do something they know is wrong. It allows the one empowering another to condone a behavior without having to actually speak the words. When it comes to local police officers enforcing the FMCSR, they are being admonished it is wrong to do so by training instructors. But hidden inside the clever wordsmithing is empowerment to do just the opposite. In this final week studying the FMCSR, a close look into the “winks and nods” of local FMCSR enforcement will be examined.

Imagine this scenario: A common jewel thief hosts a seminar to train some up-and-coming pickpockets in a new way to riches. However, the thief only wants to cash in on his niche knowledge, not be a party to future crimes. He advertises the class with an admonishment that the students will not be certified as master jewel thieves, as he is not one himself. During the training, he reminds the students master jewel thieves have certain street credentials, extensive training, and the blessing of crime lords…none of which the pickpockets will ever have. He also reminds them that stealing jewels is illegal and wrong to do, but then spends the course training them exactly how to do it.

A show of hands please – who thinks the pickpockets are going to graduate and hit the street trying to steal jewels? It’s a harsh analogy, but if the pickpocket were caught trying to steal jewels, would the instructor be any less culpable? Is there really a safe way for a leader to insulate himself with a blanket of immunity if his actions do not match his words? Here are four phrases from training materials where local police officers are being taught to enforce the FMCSR…wink wink, nod nod.

Phrase 1 – “Students will be certified as local law enforcement officers enforcing commercial vehicle safety regulations within the scope of the Illinois Vehicle Code and not as Federal or State MCS inspectors.”

All police officers are already certified “within the scope of the Illinois Vehicle Code” the moment they graduate the police academy. Several weeks of this series were dedicated showing how very few FMCSR violations have equivalency in the IVC. Notice it does not say the instructors will not teach the FMCSR, it just says the instructors will not certify the students as inspectors. Why? Because the instructors are not certified themselves. The best they can do is abrogate the IVC and try to shoehorn FMCSR violations into it using a statute which does not apply. Ironically, after making this statement in the class advertisement, a list of violations totally unique to the FMCSR and absent IVC equivalency (wheels, rims, steering, suspension, frames, coupling devices) are presented as class material. The other violations listed are barely applicable in the IVC. Wink wink, nod nod.

Phrase 2 – “Comparison of Federal/BCMS regulations with the IVC is for reference only. Before using these as references, officers should review the North American Out-of-Service Standards and the Illinois Vehicle Code to draw appropriate conclusions.” Ummmm, no they should not. They do not know what the standards are. They have not received authoritative instruction. A week of this series was spent comparing the training received by Illinois State Troopers and the (non-existent) training local police officers receive. Is not “using these [FMCSR] as references” the same as actually using the FMCSR? How can untrained police officers even begin to “draw appropriate conclusions” regarding what should be out-of-service and what should not? Wink wink nod nod.

Phrase 3 – “Local Illinois Law Enforcement Officers cannot directly cite Federal Law nor can they place a vehicle or driver directly “Out-of-Service.” This is an incredibly true statement, yet it flies directly in the face of the previous phrase to “draw appropriate conclusions”. If the local police officer cannot do these things, then what conclusion is there to draw? Week eight of this series revealed a phony way local police officers are instructed to put a driver/vehicle out-of-service by twisting the state law and never having to say the actual “OOS” words. Wink wink nod nod.

Phrase 4 – “Illinois Law Enforcement Officers can prohibit unsafe vehicle and driver operation and cite under the IVC after drawing appropriate justifications from the IVC and the North American Out-of-Service Standards.” Yes, police officers have a sworn duty to protect the public from unsafe vehicles and driver operations, but can they do this using evidence gained fruit from the poisonous tree of an illegal search and detainment? How can they draw “appropriate justifications” from the NAOOSS when they have received no training on how to identify said violations? How can an officer “cite under the IVC” when the IVC provides no such authority, yet actually prohibits it?

Then, after all these cleverly worded phrases are pinned as a banner over the student police officers, they receive 40 hours of instruction on how to do inspections…by instructors who have never been certified to do the inspections themselves. The faulty inspection process, for what it is worth, is demonstrated. The officers are taught how to improperly cite violations using methods without authority and contrary to the plain language of the law. The officers are taught to revoke the liberty of drivers based on a bad search. The officers are empowered to impound vehicles for violations they do not how to detect. The officers are never given the tools to uniformly report the violations (or lack thereof). All the while a banner of duplicitous admonishment hangs over the officers to protect the instructors.

A show of hands please – who thinks the police officers are going to graduate and hit the street doing inspections? And do them improperly? And do them without authority? And cite violations erroneously? Of course they are…they just spent a week learning how, incorrectly of course. It’s a dangerous path for unsuspecting police officers to be led down when following the authority of endorsed leadership.

Wink wink, nod nod officer. You’ve been duped…like a blind horse.

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