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Friday, 19 January, 2018

Convicted: For obeying the law

Date: 10 November, 1998

By: Chief

Imagehere has got to be a problem with the 'judicial' system when a man can be arrested, tried and convicted for, as the title of this article says, obeying the law. Yep, something is wrong in River City.

How could this happen? Well, I sum it up like this: if the judge doesn't like a law, or the corresponding case law ... ignore it. To put it another way, it's the 'square peg in a round hole syndrome'.

But convicted for what? How about 'not wearing a helmet meeting the requirements of California Motor Vehicle Code § 27802.' Well then, how was I obeying the law? Simple. The blasted thing had a manufacturers certification of compliance.

And therein lies the problem. Everybody within the judicial system is an expert on what is, or more importantly, what is not, a helmet. Therefore, obviously, the law is vague ... right? Wrong! As applied to the consumer (biker), the law is quite specific. The helmet must have chin straps and be worn on the head of the biker or passenger. Additionally, and this is the lynch pin, the helmet must have a certification of compliance label which shall constitute the manufacturer's certification that the helmet conforms to the applicable federal motor vehicle safety standards. Thus under California law, if the lid has chin straps, the biker or passenger is wearing the thing on his head and when first purchased, a manufacturer's certification label was indeed affixed, the biker, in theory, is good to go. Indeed, the biker is obeying the law. Buhl confirmed this.

As you have just read, the law, as applied to the consumer, is not vague in the least. However, is the law vague as applied to law enforcement? In my opinion, absolutely! If there are 8,000 plus uniformed CHP officers patrolling the highways of California, there can be 8,000 plus opinions pertaining to what is, or what is not, a helmet. That is where the law is vague. In fact, I believe that is the only place where the law is vague. A prime example of this is my last ticket. The arresting officer cited me for "Driver not wearing approved Helmet (sic)." This same officer took a color photograph of my bright red lid, complete with D O T sticker showing! When this photo, this gem, if you will, of evidence was introduced to the court, by me, as evidence of compliance with the law, along with asking the court to take judicial notice of Vehicle Code § 27802(a), the court, asked me a single question; "is it approved?" Wow! Talk about asking the $76.00 question! The answer to that single, three word question took — 20 minutes. The court then ordered me back in three days for his judgement. He found me guilty. When I asked of what? The court responded by saying "the code section." The judge paid absolutely no attention to the law or case law. The square peg in a round hole syndrome strikes again.

You see, that 20 minute answer, in a nut shell, informed the court that nobody 'approves' helmets. Not the legislature, not the CHP, not a court, not the manufacturer, not even NHTSA. Under federal law, the manufacturer merely 'self-certifies', by affixing a label to either the helmet or the shipping container, that the helmet meets Federal Motor Vehicle Safety Standard, number 218 (FMVSS 218). The federal law does not require the helmet be tested, indeed the helmet cannot be tested as testing is destructive to the product. The consumer therefore acts in good faith, based upon the [much beloved] D O T sticker. The question now becomes, who, if anybody, can determine, with lawful authority, a non-compliant lid? Answer, NHTSA and only NHTSA. NHTSA can do one of three things if a helmet fails testing: (1) nothing, (2) require the manufacturer to recall the product or (3) file a final decision of non-compliance. In either case, recall or final decision of non-compliance, the consumer, must be notified — in writing. That my friends, constitutes, what I believe to be, rebuttable presumption. In other words, your lid may have been purchased with a D O T sticker, however, subsequent to purchase, that model of helmet was shown [found through testing] to have failed testing. But, and this is the big but, (bumper is closer to the truth), if you don't have a letter, from NHTSA via the manufacturer, stating the helmet model you purchased, in good faith, failed testing, you cannot be held responsible. To put it another way, you cannot be held criminally responsible ... unless you have actual knowledge [of a showing of non-conformity] that your lid model failed testing! Hence, if a officer arrests [cites] you for the lid you wearing and there is no probable cause to believe that:

Hence, the judge should throw the case out! Why? Insufficient evidence. However, as I have discovered, it would appear to be that judges are impervious — to mere fact.

Wait a minute, there is something bigger, something much bigger. If the officer who arrested me had no probable cause to do so, isn't that an unlawful search and seizure? Didn't that officer violate my Fourth Amendment right? According to Easyriders v. Hannigan, the federal district court sure as hell thought so! In fact, this same court permanently enjoined the CHP from citing bikers for suspected violation of the lid law, unless:

"(A) the helmet worn by the driver or passenger was not certified by the manufacturer at the time of sale, or (B) the helmet was certified by the manufacturer at the time of sale and (i) the person being cited has actual knowledge of a showing of a determination of non-conformity with federal standards. For the purposes of this injunction, a determination of non-conformity with federal standards is defined as one or more of the following: (1) a determination of non-compliance issued by the National Highway Transportation Safety Administration or (2) a manufacturer recall of a helmet because of non-compliance with FMVSS 218 or (3) other competent objective evidence from independent laboratory testing that the helmet does not meet FMVSS 218."

Indeed, upon appeal and review of the injunction by the United States Court of Appeals for the Ninth Circuit, the court wrote:

"[T]he citations have been the result of a clear CHP citation policy in violation of the Fourth Amendment, which has continued despite the Bianco court's limiting interpretation of the helmet law. CHP argues that none of the motorcyclists is threatened with irreparable injury because the Fourth Amendment lack-of-probable-cause defense would be available at their trials on potential traffic citations. Because the Fourth Amendment establishes "[t]he right of the people to be secure in their persons ... against unreasonable searches and seizures," however, the wrong that the Fourth Amendment is designed to prevent is completed when a motorcyclist is cited without probable cause."

Really. I would have never guessed! Yet, and I'll say it again, I was convicted ... for obeying the law. The people introduced no, as in zero evidence, of actual knowledge. Zero evidence of a recall, zero evidence of a final decision of non-compliance! Zip, nada, nothing! In fact, during the discovery motion hearing, the people stated neither the officer shop nor the district attorney's office was in possession of the required evidence. The court ruled the people don't have to provide evidence ... they are not in possession of. That, I suppose makes sense, but if the officer didn't have the probable cause, why was I arrested? With that in mind, I filed a motion to dismiss based upon insufficient evidence — denied! Trial day came and went, and here I sit, convicted, madder than hell and planning my appeal!

This tale of woe seems to point out a couple of rather sad facts. First, officers, while required to obey the law, simply cannot correctly enforce a vague law. It is impossible. Secondly, and most assuredly more important, judges do not give a damn about the law, about evidence, about fact, about a citizen's constitutional rights. Arbitrary and subjective opinion rule the day. Thus, because judges are not holding to fact, to evidence, but rather to their own subjective opinion, this gives officers the 'green light' to continue violating the law, to continue violating our rights. In the vernacular, a vicious circle.

The danger, to me, possibly the greatest danger we all face, is the ignorance of the courts. The courts are the last bastion a citizen has to hold the government in check. When that wall crumbles, when the courts fail, the citizen has nowhere to turn for redress, except for outright violence, outright rebellion. The great Mr. Justice Brandeis saw this danger and wrote:

"Decency, security and liberty alike demand that government officials shall be subjected to the same rules of conduct that are commands to the citizen. In a government of laws, existence of the government will be imperiled if it fails to observe the law scrupulously. Our Government is the potent, the omnipresent teacher. For good or for ill, it teaches the whole people by its example. Crime is contagious. If the Government becomes a lawbreaker, it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy. To declare that, in the administration of the criminal law, the end justifies the means — to declare that the Government may commit crimes in order to secure the conviction of a private criminal — would bring terrible retribution."

I do not look forward to that ... do you?

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