The US Constitution.
06-28-2016, 01:03 PM
#61
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she was a civilian and the gov't used her to get to her son. her son--the actual accused--was tried in civil court.
quasi-related: Johnson was impeached for things Obama does on a regular basis.
quasi-related: Johnson was impeached for things Obama does on a regular basis.
Last edited by Braineack; 06-28-2016 at 01:14 PM.
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06-28-2016, 01:41 PM
#63
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more like: she got fucked, and eventually, as a result, the Supreme Court had acted to prevent other innocent people from getting railroaded by the Gov't trying to find ways around due process.
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06-28-2016, 01:44 PM
#64
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It turns out that those of you who prefer to ignore the law and the constitution, and "go with your morals," may actually be in good company. The irony here is that most law students will claim that they'd gladly give up ConLaw as a base-curriculum course, but hearing a Federal judge make the same suggestion is downright terrifying, even if his remarks are somehow being taken out of context.
Federal Judge Richard Posner Sees “Absolutely No Value in Studying the Constitution”
Keith Farrell June 28, 2016
You could not draw a better picture of what is wrong with the American legal system than Richard Posner did by asserting his opinion of the U.S. Constitution. Posner condemned the document he has sworn an other to defend, which is the basis of all U.S. law — a document of universally recognized historical importance.
Posner, who sits on the Seventh Circuit, claims the Constitution is practically irrelevant in today’s world.
“I see absolutely no value to a judge of spending decades, years, months, weeks, day, hours, minutes, or seconds studying the Constitution, the history of its enactment, its amendments, and its implementation (across the centuries — well, just a little more than two centuries, and of course less for many of the amendments),” he wrote in an op-ed for Slate. “Eighteenth-century guys, however smart, could not foresee the culture, technology, etc., of the 21st century.”
Posner’s dismissal of the Constitution and its framers as out-of-date is devoid of reason. To begin with, the founders were greatly ahead of their time in regards to political thought and philosophy. They setup a government without a monarchy at a time when such a thing was unheard of, they dared to declare that all men have inalienable rights inherit to their being (something civilization would take hundreds of years to achieve in practice), and they sought to embolden the individual and restrain the government; a rather progressive position for their time.
The founders were students of history, law, and philosophy. They all understood that time would lead to social progress and change. The Constitution was created with a process for amending it for that specific reason. Furthermore, several of the founders (most notably Jefferson and Franklin) were inventors! Surely, they understood that technological progress would occur. But changing social attitudes and technological innovations do not render government any less dangerous of entity, nor do they diminish the value of the individual rights the Constitution protects.
Posner’s callous regard for the Constitution is indicative of how those sworn to uphold our Rule of Law and individual rights are wholly unconcerned with either task. His venom was also directed at the Supreme Court, with an obvious jealousy of the late Justice Antonin Scalia bubbling to the surface.
“I worry that law professors are too respectful of the Supreme Court, in part perhaps because they don’t want to spoil the chances of their students to obtain Supreme Court clerkships,” wrote Posner. “I think the Supreme Court is at a nadir. The justices are far too uniform in background, and I don’t think there are any real stars among them; the last real star, Robert Jackson, died more than 60 years ago. I regard the posthumous encomia for Scalia as absurd. Especially those of Harvard Law School Dean Martha Minow and Justice Elena Kagan.”
David Bernstein, professor at the Antonin Scalia Law School, called Posner’s remarks “revolting.”
http://thelibertarianrepublic.com/fe...-constitution/
Federal Judge Richard Posner Sees “Absolutely No Value in Studying the Constitution”
Keith Farrell June 28, 2016
You could not draw a better picture of what is wrong with the American legal system than Richard Posner did by asserting his opinion of the U.S. Constitution. Posner condemned the document he has sworn an other to defend, which is the basis of all U.S. law — a document of universally recognized historical importance.
Posner, who sits on the Seventh Circuit, claims the Constitution is practically irrelevant in today’s world.
“I see absolutely no value to a judge of spending decades, years, months, weeks, day, hours, minutes, or seconds studying the Constitution, the history of its enactment, its amendments, and its implementation (across the centuries — well, just a little more than two centuries, and of course less for many of the amendments),” he wrote in an op-ed for Slate. “Eighteenth-century guys, however smart, could not foresee the culture, technology, etc., of the 21st century.”
Posner’s dismissal of the Constitution and its framers as out-of-date is devoid of reason. To begin with, the founders were greatly ahead of their time in regards to political thought and philosophy. They setup a government without a monarchy at a time when such a thing was unheard of, they dared to declare that all men have inalienable rights inherit to their being (something civilization would take hundreds of years to achieve in practice), and they sought to embolden the individual and restrain the government; a rather progressive position for their time.
The founders were students of history, law, and philosophy. They all understood that time would lead to social progress and change. The Constitution was created with a process for amending it for that specific reason. Furthermore, several of the founders (most notably Jefferson and Franklin) were inventors! Surely, they understood that technological progress would occur. But changing social attitudes and technological innovations do not render government any less dangerous of entity, nor do they diminish the value of the individual rights the Constitution protects.
Posner’s callous regard for the Constitution is indicative of how those sworn to uphold our Rule of Law and individual rights are wholly unconcerned with either task. His venom was also directed at the Supreme Court, with an obvious jealousy of the late Justice Antonin Scalia bubbling to the surface.
“I worry that law professors are too respectful of the Supreme Court, in part perhaps because they don’t want to spoil the chances of their students to obtain Supreme Court clerkships,” wrote Posner. “I think the Supreme Court is at a nadir. The justices are far too uniform in background, and I don’t think there are any real stars among them; the last real star, Robert Jackson, died more than 60 years ago. I regard the posthumous encomia for Scalia as absurd. Especially those of Harvard Law School Dean Martha Minow and Justice Elena Kagan.”
David Bernstein, professor at the Antonin Scalia Law School, called Posner’s remarks “revolting.”
“We all know Posner doesn’t think highly, to say the least, of Scalia. Judging from what Posner writes, the distaste seems to stem primarily from jealousy — Posner thinks he would be a far better Supreme Court Justice than Scalia was, and he resents that as a ‘lower court’ judge, his writings, though highly influential in their own right, will never get the same attention and accolades as Scalia.”
It’s good to know there are still some in the legal field who respect the Constitution.http://thelibertarianrepublic.com/fe...-constitution/
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06-28-2016, 02:10 PM
#66
Regarding the jury's duty to decide solely on if the law was or was not broken. Historically, juries in the USA had the right to "jury nullification" where they could find a defendant Not Guilty due to belief that the law in question was unjust.
Some say that was part of the reason for jury trials, the prevention of abuse of power by the government.
This was used during times of slavery defendants were found not guilty in regards to the Futigive Slave Act, even though they were technically guilty.
It was also used during prohibition.
I could not find any Supreme Court rulings on the subject, but, indeed, in modern times it has fallen by the wayside.
From a Constitutional standpoint, there seems to be not any verbiage that constrains the jury to consider only the legal aspects.
Generally, the concept does not give the jury the right to find an innocent defendant guilty, but does allow them to find a guilty person innocent of an unjust law.
Some say that was part of the reason for jury trials, the prevention of abuse of power by the government.
This was used during times of slavery defendants were found not guilty in regards to the Futigive Slave Act, even though they were technically guilty.
It was also used during prohibition.
I could not find any Supreme Court rulings on the subject, but, indeed, in modern times it has fallen by the wayside.
From a Constitutional standpoint, there seems to be not any verbiage that constrains the jury to consider only the legal aspects.
Generally, the concept does not give the jury the right to find an innocent defendant guilty, but does allow them to find a guilty person innocent of an unjust law.
[2] The law regarding this case is contained in the instructions I will give to you. You must consider the Court's instructions as a whole, not picking out some instructions and disregarding others.
[3] It is your duty to resolve this case by determining the facts based on the evidence and following the law given in the instructions. Your verdict must not be based upon speculation, prejudice, or sympathy. [Each party, whether a [(i.e., corporation, partnership, etc.)] or an individual, should receive your same fair consideration.] My rulings, remarks or instructions do not indicate any opinion as to the facts.
[12] Disobeying these instructions could cause a mistrial, meaning all of our efforts have been wasted and we would have to start over again with a new trial. If you violate these instructions you could be found in contempt of court.
[3] It is your duty to resolve this case by determining the facts based on the evidence and following the law given in the instructions. Your verdict must not be based upon speculation, prejudice, or sympathy. [Each party, whether a [(i.e., corporation, partnership, etc.)] or an individual, should receive your same fair consideration.] My rulings, remarks or instructions do not indicate any opinion as to the facts.
[12] Disobeying these instructions could cause a mistrial, meaning all of our efforts have been wasted and we would have to start over again with a new trial. If you violate these instructions you could be found in contempt of court.
Not to open a whole different ball of wax, but let's use the example of the death penalty. Say the law says that rape is punishable by death, but I have moral misgivings in regards to the death penalty. Is it wrong for me to refuse to convict a person knowing that they may be sentenced to death? It's the law after all. To me it is the same idea, which is why voir dire is so important. As part of the voir dire process specifically in death penalty cases the potential juror is asked point blank wither or not they would be able to convict a person to death should the evidence be proven. If they say no, they they are removed from the jury pool. If the juror say yes in order to get on the jury just so they can vote not guilty to prevent the execution they themselves are guilty of a crime.
I would never lie about my biases, and I will be the first to admit that I would be a terrible juror for certain kinds of cases, which is why I will likely never be picked for a jury, especially after these posts, as they would disqualify me should they be found. (which is not unprecidented)
Want Out of Jury Duty? Facebook Posts May Work - Law and Daily Life
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06-28-2016, 03:00 PM
#67
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Right. What is presented is not what is actual, or at least historically actual, or constitutional.
Exerpt from Clay S. Conrad's "Jury Nullification: The Evolution of a Doctrine"
Central to the history of trial by jury is the right of jurors to vote "not guilty" if the law is unjust or unjustly applied. When jurors acquit a factually guilty defendant, we say that the jury "nullified" the law. The Founding Fathers believed that juries in criminal trials had a role to play as the "conscience of the community," & relied on juries' "nullifying" to hold the government to the principles of the Constitution. Yet over the last century & a half, this power of jurors has been derided & ignored by American courts, to the point that today few jurors are aware that an important part of their role is, in the words of the Supreme Court, to "prevent oppression by the government."
Exerpt from Clay S. Conrad's "Jury Nullification: The Evolution of a Doctrine"
Central to the history of trial by jury is the right of jurors to vote "not guilty" if the law is unjust or unjustly applied. When jurors acquit a factually guilty defendant, we say that the jury "nullified" the law. The Founding Fathers believed that juries in criminal trials had a role to play as the "conscience of the community," & relied on juries' "nullifying" to hold the government to the principles of the Constitution. Yet over the last century & a half, this power of jurors has been derided & ignored by American courts, to the point that today few jurors are aware that an important part of their role is, in the words of the Supreme Court, to "prevent oppression by the government."
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06-28-2016, 03:05 PM
#68
It would be "wrong" for you to bring your moral misgivings into the court - leave them at the doorstep to the courthouse and pick them up again when you leave. I understand that some people are unwilling to do that, but I don't see that as a reasonable excuse in a country where church and state are supposed to be divided.
There are a few states where rape is indeed punishable by death, but it's generally more than simple rape.
Montana - "Aggravated sexual intercourse without consent" - Punishable by death if the accused has committed rape before, and if in both circumstances the accused caused significant bodily harm to the victim.
Wyoming - "Sexual abuse of a minor"
Florida - "Capital sexual battery" - (Raping a victim 12 years old or younger)
Speaking of Wyoming, it appears that they still have "escape" on the books as being a capital crime. I didn't look into it, but they might be a bit behind on code revisions.
There are a few states where rape is indeed punishable by death, but it's generally more than simple rape.
Montana - "Aggravated sexual intercourse without consent" - Punishable by death if the accused has committed rape before, and if in both circumstances the accused caused significant bodily harm to the victim.
Wyoming - "Sexual abuse of a minor"
Florida - "Capital sexual battery" - (Raping a victim 12 years old or younger)
Speaking of Wyoming, it appears that they still have "escape" on the books as being a capital crime. I didn't look into it, but they might be a bit behind on code revisions.
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06-28-2016, 03:17 PM
#69
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Here is an exerpt from American Bar Association course that gives the arguments for and against:
Decision-T
Should Jurors Have the Right to Refuse to Convict a Defendant When They Believe a Law Is Unjust?
Yes
No
1. Jurors have an obligation to refuse to enforce unjust laws or penalties.
1. Jurors have duty to apply the law as the judge instructs them.
2. Nullification is an important safeguard against tyranny.
2. Nullification violates the principle of equal treatment under the law because different juries would use different standards.
3. As the "conscience of the community," jurors speak on behalf of the people.
3. Nullification enables one or more persons to overturn the majority.
4. Nullification will cause unpopular laws to be changed.
4. Nullification encourages jurors to act on the basis of their own biases and prejudices rather than on common legal standards.
5. Jurors have been exercising their power of nullification throughout our history.
5. Jurors lack the knowledge to make informed and appropriate judgments about laws and penalties.
Decision-T
Should Jurors Have the Right to Refuse to Convict a Defendant When They Believe a Law Is Unjust?
Yes
No
1. Jurors have an obligation to refuse to enforce unjust laws or penalties.
1. Jurors have duty to apply the law as the judge instructs them.
2. Nullification is an important safeguard against tyranny.
2. Nullification violates the principle of equal treatment under the law because different juries would use different standards.
3. As the "conscience of the community," jurors speak on behalf of the people.
3. Nullification enables one or more persons to overturn the majority.
4. Nullification will cause unpopular laws to be changed.
4. Nullification encourages jurors to act on the basis of their own biases and prejudices rather than on common legal standards.
5. Jurors have been exercising their power of nullification throughout our history.
5. Jurors lack the knowledge to make informed and appropriate judgments about laws and penalties.
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06-29-2016, 10:27 AM
#70
Not sure where this should go but once we start asking for religous affiliation I guess this'll be a follow-on question:
Attention US-bound tourists: Social media accounts subject to inspection | Ars Technica
"The federal government is taking another step it says would make the US homeland safer from terrorism. US border authorities are proposing that millions of tourists entering the country each year reveal their social media identities.
The proposal from US Customs and Border Protection, announced last week in the Federal Register, would add a line to the online or paper form that US-bound visitors must fill out if they don't have a visa and plan on staying for up to 90 days for vacation, business, or other affairs. The agency says travelers coming to the US under the Visa Waiver Program won't be forced to disclose their social media handles, but leaving it blank obviously could raise red flags.
Here's what will be asked: "Please enter information associated with your online presence—Provider/Platform—Social media identifier." This field doesn't call for additional information such as passwords, but it's likely to yield many if applicants aren't paying attention and overshare.
"It will be an optional data field to request social media identifiers to be used for vetting purposes, as well as applicant contact information," the government said on the Federal Register. "Collecting social media data will enhance the existing investigative process and provide DHS greater clarity and visibility to possible nefarious activity and connections by providing an additional tool set which analysts and investigators may use to better analyze and investigate the case."
The agency said the form travelers fill out enables "the Department of Homeland Security (DHS) to perform its mission related to the screening of alien visitors for potential risks to national security and the determination of admissibility to the United States.""
Actual Proposal: https://www.federalregister.gov/arti...-i-94w-and#h-8
Attention US-bound tourists: Social media accounts subject to inspection | Ars Technica
"The federal government is taking another step it says would make the US homeland safer from terrorism. US border authorities are proposing that millions of tourists entering the country each year reveal their social media identities.
The proposal from US Customs and Border Protection, announced last week in the Federal Register, would add a line to the online or paper form that US-bound visitors must fill out if they don't have a visa and plan on staying for up to 90 days for vacation, business, or other affairs. The agency says travelers coming to the US under the Visa Waiver Program won't be forced to disclose their social media handles, but leaving it blank obviously could raise red flags.
Here's what will be asked: "Please enter information associated with your online presence—Provider/Platform—Social media identifier." This field doesn't call for additional information such as passwords, but it's likely to yield many if applicants aren't paying attention and overshare.
"It will be an optional data field to request social media identifiers to be used for vetting purposes, as well as applicant contact information," the government said on the Federal Register. "Collecting social media data will enhance the existing investigative process and provide DHS greater clarity and visibility to possible nefarious activity and connections by providing an additional tool set which analysts and investigators may use to better analyze and investigate the case."
The agency said the form travelers fill out enables "the Department of Homeland Security (DHS) to perform its mission related to the screening of alien visitors for potential risks to national security and the determination of admissibility to the United States.""
Actual Proposal: https://www.federalregister.gov/arti...-i-94w-and#h-8
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07-05-2016, 08:11 AM
#71
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This PD fights for his clients:
Judge accused of punching public defender outside a Florida courtroom may face disciplinary action.
A Florida judge is accused of punching an assistant public defender after telling him to "stop pissing me off."
Video footage shows Judge John Murphy challenging lawyer Andrew Weinstock to join him outside the courtroom to settle a dispute over the scheduling of a trial date.
"If you want to fight, let's go out back and I'll just beat your ***," County Judge John Murphy of Brevard County was heard saying on the video.
Weinstock's boss, Public Defender Blaise Trettis, said the judge became angry because Weinstock refused to waive his client's constitutional right to a speedy trial. Under Florida law, defendants have the right to a trial within 90 days for a misdemeanor and 175 days for a felony.
"If I had a rock, I would throw it at you right now. Stop pissing me off. Just sit down," Murphy can be heard telling Weinstock on the video.
After Weinstock refused to sit or waive his client's rights, the judge issued his challenge. Weinstock can be seen on the video walking out of frame toward the courtroom's back door.
The video shows other defendants waiting their turn in the courtroom listening to talk in the hallway.
"According to the lawyer, the judge grabbed him about the collar as soon as he walked into the hallway and began punching him in the head, and the lawyer just tried to stop the blows. And the deputies came into the hallway and pulled the judge off the lawyer," Trettis said.
Trettis said he would not file charges, but he expected the Florida Supreme Court to take action against the judge.
Trettis said he reassigned Weinstock to another courtroom, but that hundreds of his clients will still be appearing in Murphy's court represented by a different lawyer.
After the altercation, Murphy returned to the bench and said he needed a moment to catch his breath.
A Florida judge is accused of punching an assistant public defender after telling him to "stop pissing me off."
Video footage shows Judge John Murphy challenging lawyer Andrew Weinstock to join him outside the courtroom to settle a dispute over the scheduling of a trial date.
"If you want to fight, let's go out back and I'll just beat your ***," County Judge John Murphy of Brevard County was heard saying on the video.
Weinstock's boss, Public Defender Blaise Trettis, said the judge became angry because Weinstock refused to waive his client's constitutional right to a speedy trial. Under Florida law, defendants have the right to a trial within 90 days for a misdemeanor and 175 days for a felony.
"If I had a rock, I would throw it at you right now. Stop pissing me off. Just sit down," Murphy can be heard telling Weinstock on the video.
After Weinstock refused to sit or waive his client's rights, the judge issued his challenge. Weinstock can be seen on the video walking out of frame toward the courtroom's back door.
The video shows other defendants waiting their turn in the courtroom listening to talk in the hallway.
"According to the lawyer, the judge grabbed him about the collar as soon as he walked into the hallway and began punching him in the head, and the lawyer just tried to stop the blows. And the deputies came into the hallway and pulled the judge off the lawyer," Trettis said.
Trettis said he would not file charges, but he expected the Florida Supreme Court to take action against the judge.
Trettis said he reassigned Weinstock to another courtroom, but that hundreds of his clients will still be appearing in Murphy's court represented by a different lawyer.
After the altercation, Murphy returned to the bench and said he needed a moment to catch his breath.
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01-20-2017, 11:22 AM
#72
How I turned a traffic ticket into the constitutional trial of the century Ars Technica
The traffic-camera ticket: like a parking ticket, it looks lawful enough. When they receive one, most people simply write the check. It seems like the sensible and law-abiding thing to do.
But this is not a parking ticket. In legal terms, it is not a proceeding in rem—against your car. It is a legal action against you personally. And before you pay the fine, you might want to hear my story.
My story is not legal advice. I offer it only to show how our ruling elites have corrupted the rule of law and to suggest why this matters for the American experiment in self-governance.
The Ticket
My story begins with a confession: I got a traffic-camera ticket. An affidavit signed by a Montgomery City police officer, it averred that I had committed a particular traffic violation on a certain date, at a certain time and location. It showed a photograph of one of our family vehicles. It charged me with a “civil violation” of “criminal law.”
I wasn’t driving the car. In fact, at the time I was in a faculty meeting at the law school where I teach. Thus, I decided to challenge this injustice on the principle of the thing.
Municipal Court
On the appointed day, I tromped over to municipal court and sat down among those accused of armed robbery, drug dealing, and other misdeeds. After an hour, a bailiff emerged to herd into a corner of the courtroom those of us who had appeared for the slightly more respectable offense of owning a speeding vehicle. We waited some more, first for the clerk, and then to be called individually to meet the clerk. Those of us who requested a hearing (evoking an exasperated, poor-idiot-thinks-he’s-Perry-Mason expression) then waited for a magistrate to show up. Then we each waited our turn to appear before the magistrate.
After a summary hearing, the magistrate ruled against me. So I appealed to the county-level Circuit Court.
Actually, I tried to appeal. The clerk’s office made me wait in the lobby. When they finally saw me, they insisted that I provide a criminal appeal bond. But I wasn’t convicted of a crime, I protested. No matter. No appeal bond; no appeal.
No, we don’t accept checks. Come back with the amount of your ticket in cash. I found an ATM and returned, only to be left waiting in the lobby again. When I was readmitted, I saw a different employee who insisted on twice the amount of the ticket in cash. I left and returned again.
More waiting.
The City Attorney
Next, I called the City Attorney to see if she really wanted to go through with this. She did.
One does not expect municipal officials to be paragons of lawfulness. But it is a bit jarring to encounter a City Attorney who evinces no interest in, much less knowledge of, her constitutional duties.
I asked her whether this was a criminal action or a civil action. She replied, “It’s hard to explain it in those terms.” I asked whether she intended to proceed under criminal procedural rules or in civil procedure. We would proceed under the “rules of criminal procedure,” she answered because this is a criminal case. I asked when I could expect to be charged, indicted, or have a probable cause determination. She replied that none of those events would occur because this is “a civil action.” So I could expect to be served with a complaint? No, no. As she had already explained, we would proceed under the criminal rules.
(For the record, the Montgomery City Attorney never studied law with me.)
She asserted that I had violated the “rules of the road” and explained, “You were caught on camera speeding.” I asked her for any evidence. She replied that she did not need evidence. I was deemed liable because an automobile that I own “was caught speeding.” But the complaint is against me, I noted, not my car. But I am liable, she insisted, because I loaned my vehicle to “someone who speeds.”
I asked where in the laws it prohibits me from loaning my vehicle, and how I am to know in advance that any particular person is going to speed using my car. Agitated by my “semantics,” she advised me to raise any due process issues with the trial court.
[*click*]
This was going to be fun.
The Trial
Before the trial, I moved to dismiss the case. I wanted the judge to pay attention, so I tried to make the motion interesting. Okay, maybe “interesting” isn’t the best word. It was over the top. I alluded to Hobbes and Locke. I quoted the Declaration of Independence. I suggested the success of the American experiment was at stake. I resorted to superlatives. You know: all the stuff I teach my law students never to do.
We proceeded to trial. The city produced one witness, the police officer who had signed the affidavit. On direct examination, he explained how the traffic camera system works. A corporation in another state called American Traffic Solutions operates the camera system, chooses the photographs on which to predicate enforcement, recommends the Montgomery police department initiate an action against a vehicle’s owner, and is paid for its work.
On cross-examination, I established that:
And so on. I then asked the question one is taught never to ask on cross—the last one. “So, you signed an affidavit under the pains and penalties of perjury alleging probable cause to believe that Adam MacLeod committed a violation of traffic laws without any evidence that was so?”
Without hesitating he answered, “Yes.” This surprised both of us. It also surprised the judge, who looked up from his desk for the first time. A police officer had just testified under oath that he perjured himself in service to a city government and a mysterious, far-away corporation whose officers probably earn many times his salary.
The city then rested its case. I renewed my motion to dismiss, which the judge immediately granted.
Vindication! Well, sort of. When I tried to recover my doubled appeal bond, I was told that the clerk was not authorized to give me my money. Naturally, the law contains no procedure for return of the bond and imposes on the court no duty to return it. I was advised to write a motion. Weeks later, when the court still had not ruled on my motion, I was told I could file a motion asking for a ruling on my earlier motion. Bowing to absurdity, I did so. Still nothing has happened now several months later.
Why This Matters
Traffic camera laws are popular in part because they appeal to a law-and-order impulse. If we are going to stop those nefarious evildoers who jeopardize the health of the republic by sliding through yellow lights when no one else is around and driving through empty streets at thirty miles per hour in twenty-five zones, then we need a way around such pesky impediments as a lack of eyewitnesses.
Yet traffic cameras do not always produce probable cause that a particular person has committed a crime. To get around this “problem” (as a certain law-and-order president-elect might call it), several states have created an entirely novel phylum of law: the civil violation of a criminal prohibition. Using this nifty device, a city can charge you of a crime without any witnesses, without any probable cause determination, and without any civil due process.
In short, municipal officials and their private contractors have at their disposal the powers of both criminal and civil law and are excused from the due process duties of both criminal and civil law. It’s a neat trick that would have made King George III blush.
Standing and the Fundamentals of Constitutionalism
Equally troubling is that the municipality is authorized to make the owner answer a civil suit without any standing. Standing is a requirement for a person who wishes to enlist a state’s judicial power against another person. No fellow citizen can haul you into court without first alleging that you wrongly caused some particular injury to that person.
A city cannot lawfully do to you what your fellow citizen cannot do to you. And it has no standing if it has suffered no particular injury. If a driver rolls through a yellow light at an empty intersection and fails to cross the line before the light turns red, no one is injured, least of all the city.
In my case, the City Attorney argued that my city has standing because someone exceeded the speed limit while driving my car and thereby breached his or her duty to obey the law. Certainly, all citizens have a duty not to break criminal laws with culpable intent. But we owe that duty neither to the city nor to the state but to each other. If we breach the duty, the city prosecutes on behalf of the people and must afford us criminal due process.
That is American Constitutionalism 101.
The Mayor
The story continues. Lovers of liberty in Alabama kept political pressure on the state legislature, and earlier this year the legislature repealed the traffic-camera law. Yet Montgomery’s defiant mayor announced that the city would continue to operate the program. Curiously, he asserted that to stop issuing tickets would breach the city’s contract with American Traffic Solutions. One wonders how many tickets the city is contractually obligated to issue.
Finally, after the Attorney General told him to knock off the foolishness, the mayor backed down. Sort of. The city will no longer use car-based cameras, though it will continue to use stationary cameras mounted at intersections. In a fit of petulance, and belying his insistence that the program is motivated by safety concerns rather than revenue, the mayor announced that the amounts of fines for ordinary traffic violations will now be tripled.
A Small Inconvenience, a Big Problem for Self-Government
Traffic-camera laws seem like such minor, insignificant intrusions on liberty that few grasp their constitutional significance. But they reflect a profoundly mistaken view of American constitutionalism. One might say that the traffic camera is a sign of our times. Its widespread use and acceptance reveals how far we have drifted from our fundamental commitment to self-government. When our governing officials dismiss due process as mere semantics, when they exercise powers they don’t have and ignore duties they actually bear, and when we let them get away with it, we have ceased to be our own rulers.
But this is not a parking ticket. In legal terms, it is not a proceeding in rem—against your car. It is a legal action against you personally. And before you pay the fine, you might want to hear my story.
My story is not legal advice. I offer it only to show how our ruling elites have corrupted the rule of law and to suggest why this matters for the American experiment in self-governance.
The Ticket
My story begins with a confession: I got a traffic-camera ticket. An affidavit signed by a Montgomery City police officer, it averred that I had committed a particular traffic violation on a certain date, at a certain time and location. It showed a photograph of one of our family vehicles. It charged me with a “civil violation” of “criminal law.”
I wasn’t driving the car. In fact, at the time I was in a faculty meeting at the law school where I teach. Thus, I decided to challenge this injustice on the principle of the thing.
Municipal Court
On the appointed day, I tromped over to municipal court and sat down among those accused of armed robbery, drug dealing, and other misdeeds. After an hour, a bailiff emerged to herd into a corner of the courtroom those of us who had appeared for the slightly more respectable offense of owning a speeding vehicle. We waited some more, first for the clerk, and then to be called individually to meet the clerk. Those of us who requested a hearing (evoking an exasperated, poor-idiot-thinks-he’s-Perry-Mason expression) then waited for a magistrate to show up. Then we each waited our turn to appear before the magistrate.
After a summary hearing, the magistrate ruled against me. So I appealed to the county-level Circuit Court.
Actually, I tried to appeal. The clerk’s office made me wait in the lobby. When they finally saw me, they insisted that I provide a criminal appeal bond. But I wasn’t convicted of a crime, I protested. No matter. No appeal bond; no appeal.
No, we don’t accept checks. Come back with the amount of your ticket in cash. I found an ATM and returned, only to be left waiting in the lobby again. When I was readmitted, I saw a different employee who insisted on twice the amount of the ticket in cash. I left and returned again.
More waiting.
The City Attorney
Next, I called the City Attorney to see if she really wanted to go through with this. She did.
One does not expect municipal officials to be paragons of lawfulness. But it is a bit jarring to encounter a City Attorney who evinces no interest in, much less knowledge of, her constitutional duties.
I asked her whether this was a criminal action or a civil action. She replied, “It’s hard to explain it in those terms.” I asked whether she intended to proceed under criminal procedural rules or in civil procedure. We would proceed under the “rules of criminal procedure,” she answered because this is a criminal case. I asked when I could expect to be charged, indicted, or have a probable cause determination. She replied that none of those events would occur because this is “a civil action.” So I could expect to be served with a complaint? No, no. As she had already explained, we would proceed under the criminal rules.
(For the record, the Montgomery City Attorney never studied law with me.)
She asserted that I had violated the “rules of the road” and explained, “You were caught on camera speeding.” I asked her for any evidence. She replied that she did not need evidence. I was deemed liable because an automobile that I own “was caught speeding.” But the complaint is against me, I noted, not my car. But I am liable, she insisted, because I loaned my vehicle to “someone who speeds.”
I asked where in the laws it prohibits me from loaning my vehicle, and how I am to know in advance that any particular person is going to speed using my car. Agitated by my “semantics,” she advised me to raise any due process issues with the trial court.
[*click*]
This was going to be fun.
The Trial
Before the trial, I moved to dismiss the case. I wanted the judge to pay attention, so I tried to make the motion interesting. Okay, maybe “interesting” isn’t the best word. It was over the top. I alluded to Hobbes and Locke. I quoted the Declaration of Independence. I suggested the success of the American experiment was at stake. I resorted to superlatives. You know: all the stuff I teach my law students never to do.
We proceeded to trial. The city produced one witness, the police officer who had signed the affidavit. On direct examination, he explained how the traffic camera system works. A corporation in another state called American Traffic Solutions operates the camera system, chooses the photographs on which to predicate enforcement, recommends the Montgomery police department initiate an action against a vehicle’s owner, and is paid for its work.
On cross-examination, I established that:
- He was not present at the time of the alleged violation.
- He has no photographic evidence of the driver.
- There were no witnesses.
- He does not know where Adam MacLeod was at the time of the alleged violation.
- He has no photographic evidence of the driver.
- There were no witnesses.
- He does not know where Adam MacLeod was at the time of the alleged violation.
Without hesitating he answered, “Yes.” This surprised both of us. It also surprised the judge, who looked up from his desk for the first time. A police officer had just testified under oath that he perjured himself in service to a city government and a mysterious, far-away corporation whose officers probably earn many times his salary.
The city then rested its case. I renewed my motion to dismiss, which the judge immediately granted.
Vindication! Well, sort of. When I tried to recover my doubled appeal bond, I was told that the clerk was not authorized to give me my money. Naturally, the law contains no procedure for return of the bond and imposes on the court no duty to return it. I was advised to write a motion. Weeks later, when the court still had not ruled on my motion, I was told I could file a motion asking for a ruling on my earlier motion. Bowing to absurdity, I did so. Still nothing has happened now several months later.
Why This Matters
Traffic camera laws are popular in part because they appeal to a law-and-order impulse. If we are going to stop those nefarious evildoers who jeopardize the health of the republic by sliding through yellow lights when no one else is around and driving through empty streets at thirty miles per hour in twenty-five zones, then we need a way around such pesky impediments as a lack of eyewitnesses.
Yet traffic cameras do not always produce probable cause that a particular person has committed a crime. To get around this “problem” (as a certain law-and-order president-elect might call it), several states have created an entirely novel phylum of law: the civil violation of a criminal prohibition. Using this nifty device, a city can charge you of a crime without any witnesses, without any probable cause determination, and without any civil due process.
In short, municipal officials and their private contractors have at their disposal the powers of both criminal and civil law and are excused from the due process duties of both criminal and civil law. It’s a neat trick that would have made King George III blush.
Standing and the Fundamentals of Constitutionalism
Equally troubling is that the municipality is authorized to make the owner answer a civil suit without any standing. Standing is a requirement for a person who wishes to enlist a state’s judicial power against another person. No fellow citizen can haul you into court without first alleging that you wrongly caused some particular injury to that person.
A city cannot lawfully do to you what your fellow citizen cannot do to you. And it has no standing if it has suffered no particular injury. If a driver rolls through a yellow light at an empty intersection and fails to cross the line before the light turns red, no one is injured, least of all the city.
In my case, the City Attorney argued that my city has standing because someone exceeded the speed limit while driving my car and thereby breached his or her duty to obey the law. Certainly, all citizens have a duty not to break criminal laws with culpable intent. But we owe that duty neither to the city nor to the state but to each other. If we breach the duty, the city prosecutes on behalf of the people and must afford us criminal due process.
That is American Constitutionalism 101.
The Mayor
The story continues. Lovers of liberty in Alabama kept political pressure on the state legislature, and earlier this year the legislature repealed the traffic-camera law. Yet Montgomery’s defiant mayor announced that the city would continue to operate the program. Curiously, he asserted that to stop issuing tickets would breach the city’s contract with American Traffic Solutions. One wonders how many tickets the city is contractually obligated to issue.
Finally, after the Attorney General told him to knock off the foolishness, the mayor backed down. Sort of. The city will no longer use car-based cameras, though it will continue to use stationary cameras mounted at intersections. In a fit of petulance, and belying his insistence that the program is motivated by safety concerns rather than revenue, the mayor announced that the amounts of fines for ordinary traffic violations will now be tripled.
A Small Inconvenience, a Big Problem for Self-Government
Traffic-camera laws seem like such minor, insignificant intrusions on liberty that few grasp their constitutional significance. But they reflect a profoundly mistaken view of American constitutionalism. One might say that the traffic camera is a sign of our times. Its widespread use and acceptance reveals how far we have drifted from our fundamental commitment to self-government. When our governing officials dismiss due process as mere semantics, when they exercise powers they don’t have and ignore duties they actually bear, and when we let them get away with it, we have ceased to be our own rulers.
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