A new Atlanta city ordinance widely reported by media and public officials as outlawing all spectators at illegal street races actually does no such thing due to the quiet removal of key language that could have violated the civil liberties of journalists, bystanders and others.

The ordinance — which does not even contain the word “spectator” — may still outlaw certain types of race observers who do more than just watch, such as those who pay an admission fee or even just cheer for a driver. But one prominent civil liberties attorney says the ordinance is so vague and “poorly written” that it would be challenging to apply to spectators and could still lead to unconstitutional arrests of innocent bystanders, reporters and others.

The main effect of the ordinance approved by the City Council Aug. 3, dubbed “Non-Driver Participation in Street Racing and Reckless Driving Exhibitions,” is to reinforce existing state law against street racing by specifically outlawing other participants — such as those riding along or paying to join — and calling for maximum penalties to be enforced. Meanwhile, some officials and residents say, a lack of large-scale police response means the noisy and dangerous late-night racing continues to plague such areas as Buckhead, where City Councilmember J.P. Matzigkeit recently hired an off-duty officer himself as a gesture of increased enforcement.

The misreporting of the ordinance’s effect on race-watching is based on early publicity for lead sponsor Councilmember Dustin Hillis’s intent to crack down on street racing in part by killing demand by punishing spectators. But key elements of his draft ordinance later were quietly withdrawn, apparently due to concerns they would conflict with state law or the U.S. Constitution’s Bill of Rights — including a provision that would have banned photographing, filming or broadcasting races.

A MotorTrend headline on an Aug. 5 story that incorrectly described Atlanta’s ordinance as barring all spectators at illegal street races.

When the ordinance passed, such major media as the Atlanta Journal-Constitution, WSB-TV and CBS46 incorrectly reported that race-watching by bystanders was now illegal. “Watching street racing in Atlanta could land you $1,000 fine or even jail time,” said an Aug. 4 headline on a WSB-TV website story that also incorrectly reported that “just standing around watching and recording” races was now illegal. The national auto magazine MotorTrend picked up the story under the headline, “Even watching a street race in Atlanta could net you a huge fine; It doesn’t matter that you’re not doing the racing, you’re in trouble.”

Matzigkeit made similar claims in his Aug. 7 constituent newsletter, reporting that the council “unanimously passed stiffer penalties for spectators… We need people engaging in illegal drag racing, as a participant or a spectator, to be arrested.”

But the final version of the ordinance says nothing explicit about banning spectators. In fact, its only direct reference to spectators is to exempt from arrest those who are “a mere bystander, passerby or observer not aware of the illegal activity.”

And in the council meeting where it was approved, Susan Garrett, a city attorney heading the Law Department’s public safety division, explained that “this legislation does not allow people to be cited just for being present or watching. They have to actually do something — collect money, ride in the vehicle, or take some other affirmative action to participate in putting on the event. It’s not directed [at] and can’t be used just for a bystander.”

“There are no prohibitions to merely being a spectator, so you read it correctly,” said Hillis in an Aug. 10 email when asked to clarify the meaning of the ordinance.

Atlanta City Councilmember Dustin Hillis.

Hillis did not respond to further questions as to why the ordinance’s language had changed and whether an official clarification would be issued to dispel the confusion and misreporting about spectators. Matzigkeit referred questions about the language to Hillis. Mayor Keisha Lance Bottoms’ press office, the City Council press office and the Atlanta Police Department also did not respond to questions about the ordinance and how it would be enforced.

Early concerns about the civil liberties aspects of the original draft were raised online by Dan Grossman, an attorney known for his role as the lead counsel for plaintiffs who sued the city over the infamous 2009 APD raid of Midtown’s Atlanta Eagle gay bar. Grossman says the final version of the street racing ordinance is better, but is still concerning because it could be read as prohibiting spectators who do know a race is illegal but have every right to view it — including journalists and angry neighbors.

“This is a really, really poorly written statute,” said Grossman. “…There’s this giant hole big enough to drive a truck through, or a prisoner van through, in the middle.”

Grossman said that in practical terms, police officers would find it challenging to determine who in a crowd is a “non-driver participant” or not. The widespread misreporting that all spectators are outlawed could influence officers’ thinking and lead to indiscriminate arrests, he said.

“And so there’s a great likelihood that officers will be making an unlawful arrest, especially because of the way the law has been described in the press,” said Grossman. “This law has been described, I would say, irresponsibly by major news organizations like the AJC… This is an invitation to trouble.”

Street racing crackdowns

Illegal street racing, sometimes involving dozens of vehicles and hundreds of spectators, is a longstanding issue in metro Atlanta. The Ga. 400 highway, with its long straightaways, is notorious for late-night racers. In Buckhead, racers frequently appear on Peachtree Road and gather in huge parking lots like the one at The Dump Furniture Outlet on Sidney Marcus Boulevard.

But with the reduced traffic of the COVID-19 pandemic, street racers have taken advantage, appearing more frequently, for longer periods and in bigger numbers. In May, APD, the Georgia State Patrol and other agencies collaborated on a citywide crackdown that resulted in 44 arrests, 114 tickets and 29 vehicles impounded.

An Atlanta Police Department photo of a car being impounded during a multi-agency crackdown on street racing in Atlanta in May 2020.

That same month, Hillis, who represents Northwest Atlanta’s District 9, was in the news with calls for a tougher street-racing ordinance. He aimed to crack down not only on drivers, but “also to target and penalize individuals who are spectators,” a City Council press release said at the time. He wanted up to 6 months in jail and a $1,000 fine for anyone racing or watching a race.

The press release continued by quoting Hillis: “‘This is kind of a spectator sport, so we what we need to do is go after the organizers who plan these events, because 300 to 500 people don’t just happen to show up in a place without a street race. These are organized on social media and get thousands of likes,’ Hillis said, noting the Atlanta Police Department’s intelligence unit can identify the organizers of the events, take action and hopefully stop the events before they even occur.”

Hillis’s original legislation outlawed not only driving in a street race, but also being a race organizer or being a non-driver participant. In the original version, a participant was defined “any individual who is present at an illegal street racing exhibition for the purpose of taking part in the event, by riding in a race vehicle as driver or passenger; assisting or engaging with the organizers and/or drivers in carrying out the event; photographing, filming, recording, and/or broadcasting the event; or who exchanges money or anything of value with any driver, car owner, or other participant in connection with the event.”

Legal speed bumps

The ordinance quickly hit speed bumps. Responding to a CBS46 story about Hillis’s proposal, Grossman took to Twitter to question the constitutionality of banning the recording of public events. And the June 1 City Council meeting, where Hillis appeared to expect a quick approval, happened to come at the height of the George Floyd protests over police brutality and racism.

In that council meeting, Councilmember Joyce Sheperd, chair of the Public Safety and Legal Administration Committee, said the Bottoms administration had asked for the ordinance to return to the committee for further review and research. Sheperd also cited the context of the ongoing protests. Councilmember Howard Shook said the Law Department had expressed concerns about the ordinance.

Hillis grumbled in the meeting about a “coordinated effort” by an unnamed councilmember and the administration to hold up the ordinance, saying there was previously unanimous support and no official concerns. “The blood’s not gonna be on my hands, that’s all I’m gonna say,” he said, referring to the dangers of ongoing street races.

When the ordinance returned to the council for a vote Aug. 3, the language barring photos, videos and broadcasts was gone. Hillis told the council that deletion was due to concerns from the public and councilmembers, and that the revisions were made in consultation with the administration. The “participant” definition was tweaked to emphasize that offenders must be “knowingly” and “actively” joining the race. And a new line appeared: “For the purposes of this section, a person who is a mere bystander, passerby, or observer not aware of the illegal activity shall not be deemed a participant.”

The definition of a non-driver “participant” in illegal street racing as it appeared in the original draft ordinance, above, and in the final version, below.

The Law Department had more bad news for Hillis. References to drivers were cut because existing state law already covered them. Another provision requiring that seized race cars be impounded for 30 days or until the driver’s case was adjudicated was likely unlawful, Law Department attorneys told the council. Councilmember Carla Smith pleaded for the clause to remain as “the only tooth in this legislation” and it did, but with additional language that the impounding period can be up to the maximum under state law — which, the city attorneys said, is never 30 days or the period of adjudication.

The language prohibiting the organization of a race remained intact, also with a “knowingly” added. The other main change was setting a minimum fine of $1,000 instead of a lower range, which is limited by state law; the ordinance also allows for up to 6 months in jail.

Civil liberties concerns

Grossman, the civil liberties attorney, says the ordinance doesn’t do anything fundamentally new, because participating in a crime on the books is already illegal under such concepts as conspiracy. However, he said, it is fine for the city to specifically outlaw certain types of non-driver participation in street racing, and he welcomed the specific exemption for unaware bystanders.

But, Grossman added, the ordinance is too vague and unlimited about if and how its definition of “knowingly” and “actively” participating applies to other types of spectators. That is a legal problem, he said, because people have a well-established right to view and record public events in public places, including crimes like street racing. Under U.S. Supreme Court rulings, merely being near a crime cannot itself be a crime, he said.

Attorney Dan Grossman.

The legal tactic of going after spectators or viewers of illegal activity to choke off its demand has some precedents, Grossman said, but they are clearer in how they work. For example, viewing child pornography is illegal, but that is typically prosecuted as a case of physical possession. Georgia law prohibits being a spectator at a dog fight, but those are typically secret events on private property where authorities would have no confusion with innocent bystanders.

Applying Atlanta’s street racing ordinance to observers on public sidewalks or their own front yards is more complicated, Grossman said.

One clear point described in the ordinance is that exchanging money to watch the race would be illegal, which Grossman said is fine. What about a bystander who starts rooting for a driver? Grossman said it’s unclear, but his guess is that simply shouting, “Go, blue car! I hope you win!” could be enough to get arrested under the ordinance — and that is probably fine, too.

But what about a concerned resident or a journalist who attends, fully aware the race is illegal, and starts taking photos or videos and spreads the word about it? Even though that is constitutionally protected behavior and the recording ban was removed from the original ordinance, a police officer might well regard such actions as “participating” and make an arrest, Grossman said. And, regardless of the exemption in the legal language, mere bystanders might get scooped up anyway.

“This law doesn’t make that clear enough for the average police officer to know what to do, which is a recipe for trouble,” he said.

Editor’s note: Dan Grossman previously represented this reporter in an unrelated legal case.

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