After automobiles first became prevalent, early speed limits were general. They merely banned any speed that would endanger life, limb or property of any person.
Courts repeatedly struck down such general laws as unconstitutional as there is no such thing as a motor vehicle speed incapable of endangering life, limb, or property! Empire L Ins Co v Allen, 141 Ga 413; 81 SE 120 (1914); Ladd v State, 115 Tex Crim 355; 27 SW2d 1098 (1930); People v Gaebel, 2 Misc 2d 458; 153 NYS2d 102 (1956); People v Horowitz, 4 Misc 2d 632; 158 NYS2d 166 motion gr 3 NY2d 789; 164 NYS2d 41; 143 NE2d 796 (1956); People v Firth, 3 NY2d 472; 168 NYS2d 949; 146 NE2d 682 (1957); People v Price, 16 Misc 2d 71; 1698 NYS2d 200 (1957); and Armondi v Johnson, 16 App Div 2d 712; 226 NYS2d 714 (1962).
The courts made the right decision. Otherwise, all driving is illegal!! The American economy would collapse.
Vague laws with numbers that cannot be known in advance have long been struck down, for example, a law controlling future prices. Obviously manufacturers and sellers are not gifted with magical future-casting abilities and cannot "know" future prices. Int'l Harvester Co of America v Com of Kentucky, 234 US 216; 34 S Ct 853; 58 L Ed 1284 (1914). The Court said about the mandated numbers,
"To compel [people] to guess, on peril of indictment, what the community would have given for them [here, what the speed should be] if the continually changing conditions were other than they are, to an uncertain extent; to divine prophetically what the reaction of only partially determinate facts would be upon the imaginations and desires of purchasers [here, other drivers], is to exact gifts that mankind does not possess."
The same concept protects drivers from vague speed laws, where speed limits, especially at speed traps, suddenly change without notice. For example, in the writer's own area, there is a 45 mph sign, followed a few feet later, by a 35 mph sign!
Don't feel that the old precedents cited here rejecting the general safety law, the so-called basic speed limit, drive safely, are just that, old. No, the concept of striking down the general vague rules is still alive and well and being used. That concept was used as recently as in State of Montana v Stanko Case No. 97-486, 1998 MT 321 (23 Dec 1998) (case details); State of Montana v Stanko, Case No. 98-049, 1998 MT 324N (24 Dec 1998) (finding the "basic law" unconstitutional); and State of Montana v Leuchtman, Case No. 97-134. 1998 MT 325N (30 Dec 1998) (giving the benefit of the Stanko decisions to the next litigant on the same issue). Note that the officer did not even pretend to be following the law's criteria on factors such as vehicle condition. This is an obvious violation of one's oath of office, to respect the constitution and laws, not flout them.
Legislators do include some uneducated, evil, sadistic, and malicious people. Since the early vague speed-related laws were struck down, legislators have resolved on a different approach. We'll call it the Galileo approach. Invent a law that says the earth is flat! Invent a law that is not consistent with nature. Invent a number! Throw darts at a board, and say "that's the speed limit!!" Amazingly, all the darts seem to end on numbers ending with a 0 or a 5!! Call this "reasonable" (a word in law to be distinguished from "scientifically accurate"). As the range of numbers in nature is different than that, the arbitrary and capricious invented numbers are thus unconstitutional on their face! The Galileo defense.
In Montana, when its unconstitutional system was repeatedly struck down in court, the legislators did the right thing, decided to stop passing unconstitutional laws. . . . . In your dreams! . . . . . . No, not a chance of that! Instead they passed a new law, an invented number. And in Nevada recently, when the speed limit issue came up, a bill was snuck through in the last hours of the adjourning Legislature, setting a non-fact-based invented number. Legislator "universal malice" and unconstitutionality still rule!
Understand that it is "reasonable" to declare the earth flat. It is just not scientifically correct. Calling the earth flat is "reasonable" inasmuch as in any particular place, many places on the planet, it has that appearance, and calling it flat "works." For many practical purposes, "flat" is "reasonable." But recognize, that "reasonable" is incompetent and malicious, far too low a standard, allowing for what in science is in fact gross error.
The old flat earth argument against the round earth notion still, to the uninformed, is "reasonable." The round earth argument says the earth is about 24,000 miles around at the equator. The day is 24 hours long. Round earth advocates are claiming the earth is spinning 1,000 mph.
Said the flat earth advocates in rebuttal, 'the wind from that high a speed air blast would knock us all down. We find no such wind in nature. Wherefore the round earth advocates are in error. The earth IS flat!!' And, 'if you drop something, it lands beside you, not some distance significantly behind you!' Naturally, these arguments were, at the time, persuasive, in showing the "reasonableness" of the flat earth notion.
Some might say, since Galileo, legislators, city councils, officials have gotten more sensible. Human nature among officals has magically changed. Officials are all now scientists, have a Sc.D. degree, and ALL without exception adhere rigorously, solely and exclusively to what is scientifically determined, and that only.
Oh, is that so? You offer a rebuttal, it is untrue and foolish to think that politicans all have science degrees! and adhere strictly to science facts.
Is it really true that legislators don't just invent numbers!! Sadly, you'd be right. Nothing has changed since the Galileo case, and his investigation and observations of Nature. Politicians still invent things, especially speed numbers, invariably slow! Let's do like Galileo, look at nature. Let's look at a few speeds occurring in nature.
Conversion of Kilometers to Miles Per Hour
(Mean Miles Per Second/Hour)
Planet Earth is the third fastest planet! In this example from nature, we see that even the slowest speed (Pluto's 10,620 mph, mere rocket level!) is nonetheless moving!! Fabrications about how slow we riders on Earth must go, are contrary to nature.
Now, in order to allow scientific evidence in support of a litigant, a judge must determine whether the evidence is genuinely scientific, as distinct from being unscientific speculation offered by a genuine scientist. As Judge Kozinski has emphasized in his opinion on remand from the Supreme Court's decision in Daubert, it is a daunting task for judges who do not have a scientific background (and most do not) to decide whether a scientist's testimony is real science or not. 43 F3d 1311, 1315-16 (CA 9, 1995).
The Supreme Court in Daubert told judges to distinguish between real and courtroom science. This is not an impossible requirement, e.g., to discover the essence of "science," if there is such an essence. The object, instead while conceding the uncertainty concerning the reach of the majority opinion discussed in the Chief Justice's separate opinion, 113 S Ct at 2799, was to make sure that when scientists testify in court, they adhere to the same standards of intellectual rigor that are demanded in their professional work. Cf. 113 S Ct at 2796-97; O'Conner v Commonwealth Edison Co, 13 F3d 1090, 1106-07 (CA 7, 1994).
If they do so adhere, their evidence (provided of course that it is relevant to some issue in the case) is admissible even if the particular methods they have used in arriving at their opinion are not yet accepted as canonical in their branch of the scientific community. If they do not, their evidence is inadmissible no matter how imposing their credentials. Regarding this test, "an expert who supplies nothing but a bottom line supplies nothing of value to the judicial process. . . . [you] would not accept from . . . students or those who submit papers to [a professional] journal an essay containing neither facts nor reasons; why should a court rely on the sort of exposition the scholar would not tolerate in his professional life?" Mid-State Fertilizer Co v Exchange National Bank, 877 F2d 1333, 1339 (CA 7, 1989).
The Constitution requires that laws be fact-based. A non-fact-based law violates due process. Why? Due process includes the notion that, on science and engineering issues and such type issues, only facts will be presented in court, not myth, not speculation. As speed limits are arbitrary fictions, there are no studies determining average speeds of motorists in the area; the amount of deterrence that occurs when motorists observe a motorist stopped for speeding, i.e., duration of any deterrent effect (assuming arguendo that motorists slow down when seeing such, how many minutes or seconds thereafter is it before motorists resume their prior speed?), nor trend analysis of whether speeding has increased or declined the past several years and/or is proportional to enforcement.
Speed limits are not even set by averages of what motorists in fact do, a lay speculation of—"they do it, so it is safe." You may have heard of the 85th percentile concept. That is a type of this fiction ("what people do, is ok"). And worse, the percentile concept intentionally criminalizes 15% in advance, with premeditation to do so. But even that would be better than what the average "speed limit law" does—a pure fiction, an arbitrarily invented number, without even a pretense of following the 85th percentile concept. (One might also say against the 85th percentile concept that many people have been so bullied by the system that they drive slower than they otherwise would, thereby artificially depressing the numbers on which to base the 85th percentile.)
In fact, contrary to lay myth, the "85th percentile" is not even intended to apply to freeways (where there are no problems pre-identified via the below-detailed MUTCD criteria allowing freeway speed limits in the first place. The 85th percentile concept is only for non-freeeway roads! And as this paper argues, it is never applicable anywhere, anyway!
In fact, motorists are known to ignore speed limits, according to the "Federal Study on Effects Of Raising And Lowering Speed Limits" (posted at the RDU website). See also pertinent statistical data at the Michigan section of the National Motorists Association. However inarticulately, motorists in essence already recognize that speed limits are inherently (always) unconstitutional, i.e., non-fact-based.
A federal law, 23 USC § 101(a), controls traffic enforcement on all federal and federally-funded highways. Pursuant to that law, there is a federal Manual for Uniform Traffic Control Devices (MUTCD). The MUTCD sets conditions precedents for traffic control. It requires states and local authorities to identify pre-existing problems, do valid engineering studies, and only impose that minimal amount of traffic control as solves the pre-identified problem, without causing any new problem nor safety impairment. To date, no traffic control on freeways is known to have been imposed pursuant to these MUTCD conditions precedents / requirements.
Look in your state law for a law requiring compliance, for example, in California, this law. Apparently Michigan law (MCL § ____, MSA § _____) requires local jurisdictions to comply with the MUTCD, but many (or all) jurisdictions do not comply. The MUTCD guidance emphasizes the duty of law to be "fact-based." As in the civil rights era of the 1960's, some states are obeying the Constitutional due process requirement voluntarily. With others, a court order is needed. such a court order would enjoin (ban) enforcement of the illegal speed limits.
The bottom line is that THE "speed limit," whatever that is, is an arbitrary invention and fiction, without any scientific, medical or engineering evidence. In fact, there is no "THE speed limit." They vary every few miles. That is why speed traps exist, taking advantage of sudden, fabricated variations. Nobody however "expert" exists to testify to establish the fabricated numbers. They vary wildly from jurisdiction to jurisdiction, and even within jurisdictions, whereas the U.S. Constitutution mandates due process worldwide for citizens in court. "Laws" with fabricated numbers -- varying repeatedly even within a jurisdiction -- are clearly unconstitutional.
Remember, politicians (nowadays, Congressmen and legislators) are NOT scientists and engineers, are not adhering to the scientific method of truth finding, and do not make their decisions based on science and engineering. Instead, they make them on political bases and biases. Such wildly-varying-among-themselves numbers lack any fact basis at all, much less, a professionally researched and verified one. Politicians do not not know of, read, much less, abide by, professional journal writings, nor even take professional under-oath testimony on the subject before they vote! The decision is wholly arbitrary and capricious. In that sense, nothing has changed since the time of Galileo, nor even since earlier this century, when they invented arbitrary and capricious general wording laws!
Enforcement is in essence the same old unconstitutional thing. Catching a speeder is on the order of being struck by lighting! The officer is following the old unconstitutional approach already rejected earlier this century. Of necessity, as violations of the arbitrary and capricious fabricated numbers are so rampant! People inherently have the sense to reject a nonsense number when they see it! That is one of the benefits of a free and open society such as ours.
Congress and Legislatures cannot constitutionally, for example, criminalize driving by the edge of the earth. Why not? Because factually (by engineering and scientific evidence), the earth is not flat. Such a "no driving by the edge" law would not be "fact-based," therefore it is on its face unconstitutional. (Judges are inherently aware of the fact the earth is not flat!! no evidence need be presented.) A 'no driving by the edge of the earth' law is unconstitutional, agreed? Fact basis is mandatory pursuant to due process requirements.
Auto manufacturers test for speed capabilities of cars. That is the issue. Whatever speed one is driving, that is what "can" be done. No law can say, contrary to that science and engineering fact, 'no it can't!" It just did! Once the actual abilities (their limits) of cars are known, the government refuses to honor those engineering findings of fact. The only "speed limit" in nature is the speed of light! What we see instead is that politicians pick a number out of a hat, or the smoke rings in a smoke-filled room (!), and say that number is law. The "posted" speed limit is thus "non-fact-based." It is simply a "made up" number. But then the Galileo defense applies!
And, following that logic (laws are unconstitutional if they are not fact based), over the years, various people have filed lawsuits on non-fact-based laws, for example, on other numerical limits. In those cases, the government had decreed some number as law: the requirement for ____ is X (a number). When the government could not prove X (the number) accurate from a science, engineering, or logic point of view, the law was struck down by the courts. When laws such as invented maximum numeric limits lack rational basis, e.g., 29 CFR § 1910.1000 (a voluminous set of "speed limits" for chemicals), they are invalid, and must be stricken. Industrial Union Department v American Petroleum Institute, 448 US 607; 100 S Ct 2844; 65 L Ed 2d 1010 (1980) (a maximum limit established without rational basis is invalid); and Alford v City of Newport News, 220 Va 584; 260 SE2d 241 (1979) (a no smoking law that does not achieve its aim is unconstitutional). As 175,000,000 traffic tickets are issued each year in America, it is obvious on its face that the law is not achieving its professed safety goal!!
Alford is particularly relevant to speeding. It was a case concerning no-smoking sections. Politicians invented a fiction, here is a line. On this side, it is no-smoking; on that side, it is not. The fact is, smoke drifts. The magic line | does not work. Even children's experiments show this basic science fact. A standard child's science experiment is to take two colored liquids, and pour them into one bowl. See how they merge!! Politicians are not even as mentally alert on science as children!! So naturally, in Alford, the court struck down the ordinance as unconstitutional. It is sheer nonsense to say, on this side of the line / number, it is safe; on that side, it is not! There is no scientific evidence that that is so. It is pure fiction on the part of scientifically illiterate politicans, not even as well educated as children.
Michigan case law shows a proper balancing concern in this regard, analyzing jointly the twin concepts of vagueness and overbreadth, if "A conviction may have rested upon an unconstitutional basis, we are constrained to reverse and remand for new trial." People v Purifoy, 34 Mich App 318; 191 NW2d 63, 64 (1971).
It is a matter of judicial knowledge that, looking at the system as a whole, and at the reality of travel in this mobile society, that there are thousands of pages of traffic laws, and thousands of officers enforcing them, each with his own standard (generally the already unconsitutional-for-vagueness "safety" principle). But there is a further aspect of the unconstitutionality. The sheer volume of rules has already received judicial notice in another context, in a Supreme Court decision. Note these pertinent words, "Vagueness of wording is aggravated by prolixity and profusion of statutes, regulations, and administrative machinery, and by manifold cross-references to interrelated enactments and rules," Keyishian v Board of Regents of U. of St. of N. Y., 385 US 603, 604; 87 S Ct 675, 684; 17 L Ed 2d 629 (1967).
The sheer volume of rules renders them vague and overbroad. No jurisdiction even dares to command its own residents to READ the overwhelming volume of materials, much less to command all non-residents to stop whatever they are doing in commerce, and go read all the rules at each and every jurisdiction's office, plus, of course, the administrative guidance, formal and informal, plus the published and unpublished court decisions interpreting those rules, plus, of course, the actual reality in the "as applied" situation of what the individual officers on the scene may or may not deem a violation. Such a command (to stop and read the laws) would be stricken as a brazen unconstitutional obstruction of interstate commerce, in view of the mobility of the population.
We are part of a world-class area, a cosmopolitan area, with international travelers and ramifications. Imposing arbitrary and capricious standards contrary to nature (the Galileo issue) is clearly both counter-productive and unconstitutional. The Constitution was written to PROMOTE commerce, not obstruct it. In essence, by their sheer massive, unconstitutional volume, constituting both vagueness and overbreadth, the rules constitute a sweeping delegation of authority, an "Enabling Act," a sweeping delegation of authority, to every individual officer. Sweeping delegations of legislative power to the executive branch are unconstitutional, e.g., State ex rel. Makris v Superior Court, 113 Wash 296; 193 P 845; 12 ALR 1428 (1920); Taylor v Smith, 140 Va 217; 124 SE 259 (Va App, 1924); Ex parte Dickey, 76 W Va 576; 85 SE 781; LRA 1915F, 840 (W Va App, 1915); Hafield v Lundin, 98 Wash 657; 168 P 516; LRA 1918B, 909, Ann Cas 1918C, 942 (1917); and Thompson v Smith, Chief of Police, 155 Va 367; 154 SE 579; 71 ALR 604 (12 Sep 1930).
Under such circumstances, sweeping delegations to individuals with differing standards, conduct legal in one jurisdiction, driving at any given speed in any given type of area (industrial, residential, rural), may be deemed illegal elsewhere, or, in the same jurisdiction, by different officiers with their varying standards pursuant to the extreme range of "enabling" occurring in reality. "This lack of specificity "enourages arbitrary and erratic arrests . . . by delegating to police officers the determination of who must be able to produce what type of identification," People v DeFillippo, 80 Mich App 197; 262 NW2d 921, 923 (1977). Significantly, it included the above-referenced 1889 analysis:
"Personal liberty, which is guaranteed to every citizen under our constitution and laws, consists of the right to locomotion,—to go where one pleases, and when, and to do that which may lead to one's business or pleasure, only so far restrained as the rights of others may make it necessary for the welfare of all other citizens. . . . Any law which would place the keeping and safe conduct of another in the hands of even a conservator of the peace, unless for some breach of the peace committed in his presence, or upon suspicion of felony, would be most oppressive and unjust, and destroy all the rights which our Constitution guarantees." Pinkerton v Verberg, 78 Mich 573, 584; 44 NW 579, 582-583 (1889).
What our Michigan Supreme Court is saying that, arbitrary fabricated numbers are forbidden as safety is not demonstrably involved. It forbids writing rules omitting safety ("welfare"). Unless safety ("welfare") is involved, government, stay out. In light of the subsequent case law rejecting as unconstitutional vague safety traffic rules, the combination of case law precludes any numerics. This analysis has an additional benefit, promotion of judicial economy, and reducing the burden on the taxpayers (fewer magistrates, police officers needed, system-wide).
Here is the line: | On this side, it is safe, on that side it is not. If that legislative body claim is false, as it is with smoking sections, chemical numbers, and speed limits, the rule is void. And the courts must strike it down. See Alford, supra.
Of course, due process requires that to defend oneself, those persons supposedly endangered must be identified, in advance, so they can cross-examined. Mattox v U.S., 156 US 237, 242-243; 15 S Ct 337; 39 L Ed 409 (1895) (rejecting depositions in lieu of personal examination) and Kirby v U.S., 174 US 47, 55; 19 S Ct 574; 43 L Ed 890 (1899) (in person testimony required).
As such, fabricated speed limits without scientific and engineering evidence are definitely unconstitutional. The Constitution requires due process, proof, evidence, prior to convicting somebody. There is no proof, no evidence, that some particular "posted" speed limit is actually correct as the "true" necessary maximum number. The Constitution says—prove it. Or there is no case. What the evidence actually shows is that the numbers are simply made up, like the hallucinations of an alcoholic with delirium tremens seeing pink elephants -- so to speak. One easy proof that speed limit numbers are made up, is the fact they are repeatedly being changed, and vary wildly between jurisdictions, and all end in 0's and 5's, grossly contrary to nature. The Galileo defense again.
If the issue is safety, there are legitimate tests of PEOPLE to determine people's driving ability. Such exams have been, I understand, tested in Maryland, Pennsylvania, and California. The test examines the ability to process new information. Amidst distractions, moving vehicles are shown on the screen. The test checks for ability to identify their location. This is the way to prevent accidents, test drivers -- not the outrage of unconstitutional speed limits. Speed limits exist only to extort money from the non-resistant members of the public. Those who fight tickets, pay less. Meaning: those who don't insist on their rights, lose them.
Speed limits kill. They kill on a "universal malice" basis. Studies have shown this fact as well. Obviously they kill. The are invented, contrary to nature, contrary to science, engineering, medicine. Words constituting inventions, fabrications, when death results, are themselves criminal. The Nurnberg Trial, 6 FRD 69 (1946) (conviction and execution of Julius Streicher for his words that led to deaths). For a genuine case, prosecute the lawmakers who fabricate the numbers, when death results. When police do not do that (do not arrest the officials), then other prosecutions (of the little people) are obviously selective, discriminatory prosecutions. (Of course, as The Nurnberg Trial shows, there is no defense by the enforcing officer who refuses to arrest corrupt lawmakers, just the little people, 'I was only following orders.')
The "right to travel" is general. This paper is aiming at fabricated numbers imparing the "right to travel." We must start the numbers analysis in this context, therefore, at a tangent. Let's look at "easy" precedents wherein politicians had invented a number, in these cases, a number involving number of years one must be a resident to vote or hold elective office. Courts have been quite alert to fabricated numbers obstructing these rights. Let's look at a few such cases.
The case of Tennesse Governor Dunn v Law Professor James Blumstein, 405 US 330; 92 S Ct 995; 31 L Ed 2d 274 (1974). Blumstein was a newly appointed law professor. He wanted to vote. Tennessee politicians said, No, we have invented a one year state and 90 day county residency rule, to prove you know what you are doing. He offered to show he was competent. The politicians said no! the courts fortunately struck down the nonsense fabricated numbers. Amazingly, the professor offered the state the opportunity to test him to verify his competence, and the politicians refused. This parallels speeding situations; speeders typically offer to show that theyw ere in fact driving safely, and politicians typically refuse to consider that offer. (If you have such a case, include in your presentation an offer to show you were driving safely.) The offer will help show that the speed limit is malicious, intended for evil, not for a safety purpose, hence obviously unconstitutional.
The case of Bolanowski v Raich, 330 F Supp 724 (ED Mich, 1971), rejected inventing a number. The City of Warren, Michigan, invented the number “three” as the mandatory minimum of years a person must live in the City before being allowed to run for the office of Mayor. The pretext of the invented number was that that much time was needed “to understand the local problems, know the people of the community and [foster awareness of his] reputation and character.” Bolanowski said the invented number “is not finely enough tailored to serve the purpose claimed.” The Court agreed. It struck down the invented number as unconstitutional. It pointed out that some lifelong residents can have never been “taking any interest whatsoever in municipal problems,” whereas others, short-time, can have “gathered sufficient information to be able to have a good understanding.”
Likewise with speed limits, higher speeds can promote safety, while lower speeds can actually involve an increased death rate. Experience with the recently increased speed limits has shown this exact effect to be occurring. This confirms the inherent unconstitutionality of speed limits, not “finely tailored” to achieve the purported purpose. As they do not achieve the stated purpose, and cannot, they are inherently (meaning, always) unconstitutional.
Other court precedents also strike down invented numbers. (If this list of case gets burdensome, remember, the reason is that there have been a lot of malicious politicians with base motives, who passed the laws, that those on the receiving end of politicians' malice, had to defend us all from: More anti-fabricated number cases: Shapiro v Thompson, 394 US 618; 89 S Ct 1322; 22 L Ed 2d 600 (1969) (public assistance benefits); King v New Rochelle Municipal Housing Authority, 442 F2d 646 (CA 2) cert den 404 US 863; 92 S Ct 113; 30 L Ed 2d 107 (1971) (public housing); Keenan v Board of Law Examiners, 317 F Supp 1350 (ED NC, 1970) (3-judge court, issue of admission to the bar); Vaughan v Bower, 313 F Supp 37 (Arizona, 3-judge court) aff'd mem 400 US 884; 91 S Ct 139; 27 L Ed 2d 129 (1970) (medical aid). Politicians with base motives often like to attack the "right to travel," people who are poor and need welfare benefits, housing benefits, or medical help. Attacking the "right to travel" via invented, fabricated "speed limits" is just another aspect of base motives of politicians.
Here's an example of how speed limits can kill. The doctor is rushing to the hospital to aid a patient in desperate need of TIMELY medical attention. The doctor is speeding. Yet, the "universal malice" speed limit wants him to aid in killing the patient, by going slow. Police (in a "universal malice" act) will stop him from helping the patient.
Or, two people are together. One is severely cut, bleeding badly, needs TIMELY medical aid. Minutes, seconds, count. Your friend speeds to save your life. But some self-righteous speed enforcer in a universal malice" act, stops your friend, and you bleed to death. Political fabricated speed limits can, and do, kill, "universal malice" style.
"If you drive 100% legally you statistically increase your chances of getting in or causing an accident."—A quote from the RDU website.
In effect, as per the Supreme Court decision in the case of Crandall v Nevada, 73 US 35; 18 L Ed (1867), speed limits being non-fact-based, are simply an unlawful tax or impost on travel, and thus unconstitutional for the reason cited in Crandall. (Crandall involved a tax on travelers! which is what in essence speed limits simply are, stripped of all the phony fraudulent politician folderol pretending them to relate somehow to safety, not to mention that are extortion violating the federal anti-racketeering act (RICO), 18 USC § 1961 and the law against obstructing federal rights, 18 USC § 241).
The Michigan Court of Appeals in People v Ferency, 133 Mich App 526; 351 NW2d 225 (1984) (a narrowly framed case in which these constitutional issues were not cited) ruled that, in order to avoid any violation of due process rights of a defendant in a speeding case involving "moving" radar, seven guidelines must be met in order to allow into evidence speed readings from a radar speed measurement device:
1. The officer operating the device has adequate training and experience in its operation.
2. The radar device was in proper working condition and properly installed in the patrol vehicle at the time of the issuance of the citation.
3. The radar device was used in an area where road conditions are such that there is a minimum possibility of distortion (to prevent spurious readings).
4. The input speed of the patrol vehicle was verified. This also means that the speedometer of the patrol vehicle was independently calibrated.
5. The speedmeter (radar) is retested at the end of the shift in the same manner that it was tested prior to the shift and that the speedmeter (radar) be serviced by the manufacturer or other professional as recommended.
6. The radar operator is able to establish that the target vehicle was within the operational area of the beam at the time the reading was displayed.
7. The particular unit has been certified for use by an agency with some demonstrable expertise in the area.
Although the Michigan Court of Appeals ruling in People v Ferency deals with the adjudication of a case involving traffic radar, the Michigan Speed Measurement Task Force is of the opinion that the principal recommendations set forth in that ruling can be applied to cases involving laser speed measurement devices. The interim guidelines for adjudicating speeding cases involving laser speed measurement devices that have been developed by the Michigan Speed Measurement Task Force reflect this opinion:
1. The officer operating the laser speed measurement device must have adequate training and experience.
2. The particular laser device must have been certified for use in Michigan by the Michigan Speed Measurement Task Force.
3. The laser device must be verified in the same manner at the beginning and end of the shift to ensure that it is in proper working condition, and the device must be serviced by the manufacturer or other professional as recommended.
4. The officer using the laser device must be able to testify that a down-the-road speed reading was obtained at a distance that was within the operational range of the device.
5. The target vehicle must be properly identified.
6. The laser device must be in proper working condition at the time the speed measurement reading is obtained. Additionally, across-the-road laser devices must be properly positioned and aligned.
Police officers themselves regularly exceed speed limits, for various purposes including to catch suspected speeders!! Wherefore, speed limit laws and enforcement prima facie do not in fact have an engineering and scientific basis, and hence, by definition, speeding per se cannot be shown to be unsafe. Obviously, enforcement by speeders themselves cannot in fact serve as a deterrent to others' speeding. Police in essence drive the same, or at higher speeds, than motorists themselves. The public reaction, as shown by 175,000,000 tickets is not, 'I'm so deterred,' but, 'hypocrites.' The unequal enforcement of the law, exempting themselves, violates the constitutional concept of "equal protection of the laws." Their attitude of disdain for the rule of law is especially clear when they practice law without a license.
Federal law 18 USC § 241 bans obstructing federal rights, which includes the "right to travel," as per the long line of case law above cited. Federal law 18 USC § 1961 bans engaging in a pattern of crime. When state and local officials in essence extort money, they are committing federal felonies and are in essence "racketeers" as per the law. You may have heard of "forfeiture laws," taking the fruit of one's unlawfully earned income (including one's house). Here, in what is widespread extortion, is an excellent place for such action to occur. It would help deter the making of extortionate arrests, especially when there is not even the pretense of complying with the law's criteria, e.g., vehicle condition, as in the Montana cases above cited.
"Personal liberty . . . consists of the right to locomotion,—to go where one pleases, and when, and to do that which may lead to one's business or pleasure, only so far restrained as the rights of others may make it necessary for the welfare of all other citizens. . . . Any law which would place the keeping and safe conduct of another in the hands of even a conservator of the peace, unless for some breach of the peace committed in his presence, or upon suspicion of felony, would be most oppressive and unjust, and destroy all the rights which our Constitution guarantees." Pinkerton v Verberg, 78 Mich 573, 584; 44 NW 579, 582-583 (1889).
"Neither general experience nor reason nor common sense . . . suggest that merely because three persons plus a police officer complain (not testify, merely complain) that certain noise was 'loud' or 'disturbing' warrants an inference or presumption by a jury that their untested complaints amount to 'prima facie evidence' that the noise was 'loud' or 'disturbing.' A 'complaint' is no more than a charge, made ex parte, without any opportunity by a defendant to confront the person making the 'complaint' or giving the 'information' or to test by cross-examination the validity of such 'complaint.' At best, it could have no greater stature than an arrest warrant or perhaps an indictment, both of which proceed ex parte. Neither the arrest warrant nor the indictment has such standing as to support prima facie evidence or presumption of guilt to impose on a defendant the burden either of persuasion or production. Similarly, we do not think 'complaints,' whether from one or four complainants, can be deemed prima facie evidence of wrongful conduct or be given the stature of a presumption imposing any burden of persuasion or of proof on a defendant."
Cases have arisen due to the lack of impartiality of judges, for example, Tumey v Ohio, 273 US 510; 47 S Ct 437; 71 L Ed 749 (1927) and Ward v Village of Monroeville, 409 US 57, 60 (1972). The Supreme Court took notice of the high percentage of city revenue derived from traffic offenses. This issue also implicates due process. The ticket-issuing-jurisdiction budget presumes traffic offense revenue, in essence, inherently violating due process, as the number of judge positions is accordingly increased. Offering a job is a classic method of improper influence, here, the creating of excess positions, both in enforcement and in the judiciary. Lower level judges' and magistrates' lack of impartiality is especially obvious when they unethically aid and abet the unauthorized practice of law by officers, and aid in presenting the prosecution's case.
This includes excess jobs being created due to the 90 year pattern of refusal to enforce Michigan's 1909 cigarette control law MCL § 750.27, MSA § 28.216. Cigarette smoking has long been implicated in crime, alcoholism, drug abuse, and suicide. Experienced officers recognize that alcoholism and drug abuse typically occur primarily among smokers, not nonsmokers, about 90% so. "The proof of the pattern or practice [of knowing refusal to enforce the law] supports an inference that any particular decision [including here], during the period in which the policy was in force, was made in pursuit of that policy." Teamsters v U.S., 431 US 324, 362; 97 S Ct 1843, 1868; 52 L Ed 2d 396, 431 (1977). "Nothing can destroy a government more quickly than its failure to observe its own laws." Mapp v Ohio, 367 US 643, 659; 81 S Ct 1684; 6 L Ed 2d 1081 (1961).
By knowingly not enforcing the law, more smoking occurs, with the result that disproportionately more alcoholism, drug abuse, and crime occur. This in turn leads to an excess number of police and judiciary positions being created. While a challenge to the numbers of officers and judicial positions may seem novel, it is simply an application of what the Supreme Court has already found pertinent under Constitutional guarantees of the people's rights to a fair process, Ryder v U.S., 515 US 177; 115 S Ct 2031; 132 L Ed 2d 136 (1995).
The non-enforcement practice of 90 years constitutes a clear-cut conflict of interest, as now enforcement of the cigarette ban, MCL § 750.27, MSA § 28.216, means lay-offs. Having an excess number of such positions both enables racism in traffic stops and grossly disportionate focusing on traffic issues as a revenue raiser, as distinct from having a limited number of staff, restricted to genuine crime issues as a century ago, and as our 1909 ancestors intended.
The continuing pattern of enforcement misconduct, mass refusal to enforce the 1909 law, precludes prosecutions at the latter end of the cause and effect chain. By law, MCL § 750.478, MSA § 28.476, the government (law enforcers) must set an example of enforcing and obeying the laws. Case law to the same effect, e.g., Service v Dulles, 354 US 363; 77 S Ct 1152; 1 L Ed 2d 1403 (1957) and Glus v Eastern District Terminal, 359 US 231, 232; 79 S Ct 760, 762; 3 L Ed 2d 770, 772 (1959), makes clear that a plaintiff cannot rely on its own wrongdoing at the starting point of a process. "[H]e who does the first wrong is answerable for all the consequent damages," Scott v Shephard, 96 Eng Rep 525, 526 (1773).
The government cannot have the benefit of the provisions favorable to its side, while ignoring its conditions which it is to perform, obey, or enforce. Precedents show that no court should aid such a misconduct-committing party, e.g., BTC v Norton CMC, 25 F Supp 968, 969 (1938); and Buckman v HMA, 190 Or 154; 223 P2d 172, 175 (1950). "No one may take advantage of his own wrong," Stephenson v Golden, 279 Mich 710, 737; 276 NW 848 (1938). If smokers are being created, then committing 90% more alcholism, drug abuse, and crime than would otherwise be the case, in turn leading to hiring more police, prosecutors and judges, enabling vastly expanded resources beyond the "Founding Fathers'" original intent, the wrong is the government's pursuant to the 90 year pattern of refusal to enforce the crime/alcoholism/drug prevention law, MCL § 750.27, MSA § 28.216. Somebody should indeed be prosecuted--prosecutors--pursuant to MCL § 750.478, MSA § 28.476, for their protracted, brazen knowing, refusal to enforce the prevention law MCL § 750.27, MSA § 28.216.
In addition, according to Governor John Engler's email message to this web writer, "Smoking is the single most preventable cause of death and disability in America today. In fact, smoking causes over 15,000 deaths in Michigan each year and accounts for more than $800 million in a health care costs for our state. Real and long term improvements in the health status of our citizens demands a state-wide commitment to prevention." Wherefore, police focus (a grossly unscientific priority) on enforcing traffic rules for revenue reasons, while refusing to enforce the cigarette control law MCL § 750.27, MSA § 28.216, leads, as "natural and probable consequence," to the premature deaths of thousands of our residents each year. The priorities are an "order," but as The Nurnberg Trial shows, that is no defense when large numbers of deaths result.
The term "natural and probable consequence" relates to events that "happen so frequently . . . that . . . they may be expected [intended] to happen again." See Black's Law Dictionary, 6th ed (St. Paul: West Pub Co, 1990), p 1026. "A person is presumed to intend the natural and probable consequences of his voluntary acts," p 1185. The effects of misplaced enforcement priorities clearly fall within these definitions.
Governor Engler is only citing the deaths in Michigan. The U.S. Department of Health, Education and Welfare, National Institute on Drug Abuse (NIDA), book entitled Research on Smoking Behavior, Research Monograph 17, Publication ADM 78-581, p v (December 1977), said of the deaths in the United States at large,
"Over 37 million people (one of every six Americans alive today) will die from cigarette smoking years before they otherwise would."
A few years earlier, the Royal College of Physicians of London, in its book, Smoking and Health Now (London: Pitman Medical and Scientific Publishing Co, 1971), p 9, had already declared the smoking-caused death toll to be a "holocaust" due to the then "annual death toll of some 27,500." If 27,500 deaths is a "holocaust," and it is, 37 million is (in contrast to the Nazi 6 million holocaust), a six fold+ holocaust. That is above the World War II "crimes against humanity" level for which prosecutions occurred. Law enforcement priorities were skewed in Nazi Germany as well. Police looked the other way on that holocaust. The same is occurring here, with the same (or worse) "natural and probable consequence."
Due to cigarettes' inherently deleterious nature and ingredients, they, when lit, emit deleterious emissions. The Department of Health, Education and Welfare (DHEW), Smoking and Health: Report of the Advisory Committee to the Surgeon General of the Public Health Service, PHS Pub 1103, Table 4, p 60 (1964), lists examples of cigarettes' deleterious emissions compared to the chemicals' "speed limits" (official term, "Threshold Limit Value" [TLV], set in the toxic chemical regulation 29 CFR § 1910.1000, including but not limited to:
|acetaldehyde||3,200 ppm||200.0 ppm|
|acrolein||150 ppm||0.5 ppm|
|ammonia||300 ppm||150.0 ppm|
|carbon monoxide||42,000 ppm||100.0 ppm|
|formaldehyde||30 ppm||5.0 ppm|
|hydrogen cyanide||1,600 ppm||10.0 ppm|
|hydrogen sulfide||40 ppm||20.0 ppm|
|methyl chloride||1,200 ppm||100.0 ppm|
|nitrogen dioxide||250 ppm||5.0 ppm|
Additional data of this type can be found in the book by Samuel S. Epstein, M.D., The Politics of Cancer (San Francisco: Sierra Club Books, 1978), p 154. The Occupational Safety and Health Act of 1970, 29 USC § 651 - § 678 forbids hazards. Here is a word picture (using the example of carbon monoxide) of what this type data means:
| 42,000 ppm - cigarettes' carbon monoxide
| 32,000 For perspective, police stop speeders going 60 in a 50 mph zone.
| Tobacco far exceeds the "speed limits." Tobacco kills precisely
| because its toxic chemicals are above the safe levels.
| 12,000 ppm - cars' limit "Cigarette Makers Get Away With Murder,"
| (40 CFR § 85.2203-81) says Elizabeth M. Whelan, Sc.D., M.P.H.,
| in The Detroit News, p 4B (3-14-93). The
| above "speed limit" numbers show why.
| 2,000 (Not to scale)
| 50 - legal amount indoors (29 CFR § 1910.1000)
| 9 - legal amount outdoors
| 0 - amount cigarette pushers allow from their personal furnaces
It is because cigarettes' emissions vastly exceed the "speed limits" that they are dangerous and so fatal as to kill millions of people. If cigarettes' toxic chemicals were under the "speed limits," they'd be safe! Example: The "speed limit" for carbon monoxide is about 100, whereas it's doing 42,000.
"The smoker of cigarettes is constantly exposed to levels of carbon monoxide in the range of 500 to 1,500 parts per million when he inhales the cigarette smoke." G. H. Miller, Ph.D., "The Filter Cigarette Controversy," 72 J Indiana St Med Ass'n (12) 903, 904 (Dec 1979).
"The blood of cigarette smokers will contain from 2 to 10 percent carboxyhemoglobin . . . initial symptoms of poisoning . . . will result from exposures to 1,000 ppm for 30 minutes or 500 ppm for one hour. One hour at 1500 ppm is dangerous to life. Short exposures (one hour) should not exceed 400 ppm. See Julian B. Olishifski, P.E., C.S.P., Fundamentals of Industrial Hygiene, 2d ed (National Safety Council), pp 1039-1040.
The hazard to smokers (need it be said?) arises as their exposure is far above these criteria. Here is another example, explaining why we see smoke clouds hanging in the air:
"[L]ittle mixing takes place, as can be seen by watching smoke plumes rise in still air. Even when the plume is disturbed, the visible core can be observed to maintain homogeneity over a distance of one to three meters . . . . the core with concentrations of tens to hundreds of parts per million of the powerful irritnats acrolein and formaldehyde can readily contact eyes or be breathed with only slight dilution. The irritant properties of these materials may be partly inferred by their occupational [speed] limits. These are 0.1 to 0.3 ppm for acrolein and 1 to 3 ppm for formaldehyde." Howard E. Ayer, M.S., David W. Yeager, B.S., "Irritants in Cigarette Smoke Plumes," 72 Am J Pub Health 1283 (Nov 1982).
Officers look the other way at violation of Michigan law MCL § 750.27, MSA § 28.216, at going 42,000 in a 50 zone!
The gross disportionate focus on traffic issues lacks a scientific and engineering basis. The Surgeon General focuses on the No. 1 cause of death as—traffic violations!! Not so. There is no genuine basis for the priority given to traffic issues, rendering the matter clearly outside the legitimate realm of genuine law enforcement. The function is revenue enhancement, transferring the tax burden off the "consent of the governed," onto artificially created violators. This is a systemic issue, but the unconstitutional aspect of the system focuses on the individual, purported offender. Such offenders are artificially created, via the mass criminalizing of tens of millions of people, alleged traffic offenders, pursuant to priorities grossly and obviously contrary to scientific and medical evidence, of which the Surgeon General is a leading exponent, but which the enforcers ignore, for revenue raising and racist motives.
In law, "what ought to be done us fixed by a standard . . . whether it usually is complied with or not." Texas & Pac Ry v Behymer, 189 US 468, 470; 23 S Ct 622, 623; 47 L Ed 903 (1903). Law exists, is "designed to disrupt," nonconforming practice, U.S. v City of Los Angeles, 595 F2d 1386, 1391 (CA 9, 1979). A "practice" "not based upon any rule of law" must be reversed, Biafore v Baker, 119 Mich App 667; 326 NW2d 598 (1982); The T. J. Hooper, 60 F2d 737, 740 (CA 2, 1932). But sometimes, violations in disregard of the rule of law, have developed, and continued through generations. Nonetheless, the Constitution is "designed to disrupt" practice, so customs and usages do not define or create law, but must be superseded and ended by it, when the issue is raised.
Federal law 18 USC § 1001 bans making false statements in any matter within federal jurisdiction, on pain of five years imprisonment. Federal law 18 USC § 241 bans obstructing federal rights, which includes the "right to travel," as per the long line of case law above cited. It is not needed that the accused, whether a private citizen, legislator, or officer, know the technical concepts involved, in order for there to be a conviction, United States v Redwine, 715 F2d 315 (CA 7, 1983). Federal law 18 USC § 1961 bans engaging in a pattern of crime. As a deterrent, the latter provides injured parties triple the normal amount of damages. When state and local officials falsify traffic requirements, in essence to extort money, they are committing federal felonies and are in essence "racketeers" as per the law.
When a citizen is attempting to enforce the Constitution, as herein shown, he is doing so "not for himself alone but also [for others] as a 'private attorney general' vindicating a policy that [the Constitution writers] considered of the highest priority." Newman v Piggie Park Enterprises, 390 US 400; 88 S Ct 964, 966; 19 L Ed 2d 1263, 1265 (1969); Oatis v Crown Zellerbach Corp, 398 F2d 496, 499 (CA 5, 1968); and Jenkins v United Gas Corp, 400 F2d 28, 33 n 10 (CA 5, 1968). In such a case, there can be no intent on the part of the accused to violate the law, as the purpose is to secure enforcement of the supreme law, the Constitution.
WHEREFORE, defendant moves that the court
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