Botch-athon: Legislators question ABC procedures
Two weeks after felony charges were dropped against a sparkling-water-buying 20-year-old, who was totally wigged out when a phalanx of seven plainclothes Virginia Alcoholic Beverage Control agents surrounded her car in a darkened Harris Teeter parking lot, pounded on the windows, leaped on the hood, and pulled a gun— all for suspicion of underage beer possession— citizens and legislators continue to ask the question: What were they thinking?
Elizabeth Daly and two sorority sisters had just attended a Take Back the Night rape awareness vigil on April 11 and went to Harris Teeter at Barracks Road around 10pm to buy ice cream and cookie dough for a fundraiser. A case of LaCroix sparkling water the women had also purchased drew the scrutiny of the ABC agents, who had been staking out the parking lot and who mistook the water for beer.
Initially, the ABC adopted a blame-the-victim stance for Daly's arrest and three felony charges, including two assault of an officer for "grazing" the agents as she fled in fear: "The agents were acting upon reasonable suspicion and this whole unfortunate incident could have been avoided had the occupants complied with law enforcement requests," read a July 1 statement.
As the maelstrom continued, by July 5, the agency announced a new procedure effective immediately: Future stakeouts for underage alcohol purchases would include a uniformed officer "once the plainclothes agent has developed reasonable suspicion and/or probable cause to approach individual(s) they believe have violated the law."
In a case that has now made international news, some say that's not enough. More than 500 people have signed a petition that demands an apology to Daly from the ABC. Delegate Barbara Comstock has written to the agency, asking for an explanation of the procedures that led to such a debacle, as has House Minority Leader David Toscano. Charlottesville City Council has joined the fray, calling for an independent review and cooperation with city police when conducting operations here. And the Rutherford Institute's John Whitehead has written to the General Assembly decrying the militarization of police and an operation that he says ignores the Fourth Amendment.
"Either ABC officials are being deliberately disingenuous or they don’t understand that there is a distinct difference between 'reasonable suspicion' and 'probable cause,' the latter of which is required by the Constitution before any government official can search an individual or his property," writes Whitehead in a nine-page letter to the House Police, Militia and Public Safety Committee.
"They're not supposed to do surveillance on the American public," Whitehead tells the Hook. "If they're coming out of police departments not trained in the Fourth Amendment, we've got a real problem."
He notes the Daily Progress report that the ABC had conducted a two-day sting in the Harris Teeter parking lot and 10 people were arrested. How many more were accosted by agents because they looked young and appeared to be carrying alcoholic beverages like Daly, who was doing nothing wrong, wonders Whitehead. That, he maintains, does not rise to the level of probable cause.
He wants the General Assembly to investigate the still-unnamed agents involved, and to reevalutate the policies and procedures of the agency. "Originally created to enforce Prohibition-era laws, the ABC Special Agent program itself is a relic of a different era, and the extent of its powers are in desperate need of comprehensive review, as this incident demonstrates," says Whitehead.
Northern Virginia Delegate Barbara Comstock wants to examine the ABC's policies and procedures first. She says she's been getting an earful from constituents, and as the mother of a 24-year-old, young-looking daughter who attended UVA, she has concerns about what she's read in the news about the incident.
"The situation could have escalated," she tells the Hook in a phone interview. "It could have been much worse if it escalated."
Comstock points out that uncertainty about whether someone is a cop is an "affirmative defense" for an eluding police charge, and the 911 call one of Daly's passengers made attests to the fear they felt. "The young women clearly were frightened," she says. "They didn't know who they were dealing with. In an ambiguous situation, we want young women to be able to protect themselves."
Among the questions she's asking: Why were seven officers necessary? Why were the arrests not made in the store or just outside rather than in a darkened parking lot? What are the policies for use of a weapon? And perhaps most significantly, Comstock asks, "Considering the facts surrounding this incident— a woman justifiably fearful for her safety who had committed no crime— why were three felony charges filed against her?"Considering the facts surrounding this incident–-a woman justifiably fearful for her safety who had committed no crime–- why were three felony charges filed against her? - See more at: http://www.delegatecomstock.com/blog/read.aspx?id=476#sthash.NTanC0Hw.dpufConsidering the facts surrounding this incident–-a woman justifiably fearful for her safety who had committed no crime–- why were three felony charges filed against her? - See more at: http://www.delegatecomstock.com/blog/read.aspx?id=476#sthash.NTanC0Hw.dpufConsidering the facts surrounding this incident–-a woman justifiably fearful for her safety who had committed no crime–- why were three felony charges filed against her? - See more at: http://www.delegatecomstock.com/blog/read.aspx?id=476#sthash.NTanC0Hw.dpuf
Delegate David Toscano also wants to look at ABC policies. "I know there's a lot of concern," he says. "I've heard not just from the public but from ABC folks concerned that this is an outlier incident."
For Toscano, the big issue is "proportionality," and whether the agents needed to prevent the women from driving away for what is a summons offense. "The better part of valor would have been to take the license plate number and then write a summons," he says. "They didn't do that."
He, too, questions the need for a firearm for underage drinking interdiction. "Is there a reason for the attempt to break the window?" he asks. "Is that consistent with policy?"
Advises Toscano, "When you're going out in the dark, you've got to be very sensitive when approaching females. It sounds to me like an over-reaction. These agents have been dealing with questions of consumption for years. You've just got to wonder what caused them to over-react."
The Harris Teeter incident has generated a lot of wondering about the ABC. For instance, as the firestorm was heating up and the three felony charges against Daly were dropped June 27, Progress reporter Katy Evans discovered that the chairman of the Virginia Alcoholic Beverage Control, J. Neal Insley, was at a five-day conference at the Sheraton Waikiki Resort in Hawaii to discuss moonshiners.
"Chairman Insley's conference was at no expense to ABC or the state," says ABC spokesperson Becky Gettings. He's the chairman of the National Alcohol Beverage Control Association, a nonprofit for state alcohol monopolies, and that organization paid for his trip, she explains.
At 11:43pm July 8, Gettings sent out a third statement from the ABC, this one from Insley.
“Once the charges were nolle prossed, I immediately directed the internal review of the circumstances leading up to the young lady’s arrest,” he says. Insley says he's asked the Virginia State Police to conduct an independent review, and neither agency will comment on the review until it's complete.
"I've never met a moonshiner," says Whitehead about the Hawaii junket, and he questions another agency expense— a $750,000 mobile command center rolled out this spring and was paid for with forfeiture funds, according to a release. "What the hell is that for?" demands Whitehead.
UVA class of '13 grad Ben Elron was so concerned about the Harris Teeter incident that he started an online petition demanding an apology from the ABC and appropriate discipline and/or dismissal of the agents involved.
"As a former member of UVA's Honor Committee, I highly value the positive, collaborative relationship between students and the police— it is something that we worked hard to promote," he writes in an email. "I started this petition because I believe it is critical that this relationship extend to the ABC agents in Charlottesville as well."
The likelihood of an apology? That was one of those unanswered questions to the ABC from the Hook.
Another refers to a statement in the July 5 release that cites "misinformation being reported." What has been inaccurately reported? The ABC declines to say, but there's this in the same release: "The culture at ABC is one of transparency and of safeguarding the public trust; therefore, we take all citizen complaints very seriously."
Inevitably, the debacle has drawn scrutiny to the Prohibition-era agency and the ABC's mission to thwart drinking by 18- , 19- , and 20-year-olds.
"It does raise some questions about the resources put in place to prevent underage drinking," says Toscano, who reiterates, "It's a question of proportionality."
Listen to the 911 Calls:Attached Documents: