“Police Authority vs. Driver’s Rights”
On July 23rd CNN featured an article titled; “What are your rights during a traffic stop–and is it wise to exercise them?” Not unlike the endless other commentaries from ‘talking heads’ and so-called experts the article sadly falls seriously short in living up to its header. Judges, ex-law enforcement and criminologists also continue to avoid revealing the actual rights drivers have in ‘routine traffic stops’. Many, actually don’t know. Others simply don’t want to inform the general public what their rights are.
The story of Sandra Bland is less about her and more about the gray area which prevails in our society governing the interaction of law enforcement and the driving public. The “pull-over” of Ms. Bland is an arrest not unlike those which occur thousands of times every day in the United States. When unknown laws are ignored, outcomes too often escalate and end tragically. This writing will, for once, set the record straight and hopefully break the ceiling of misinformation and ‘opinions’ which prevail following unnecessary stories and the sad consequences which too often occur when drivers and police fail to adhere to the “Rules of Road”.
When the automobile appeared on the scene in the early twentieth century there were no Departments of Motor Vehicles, license plates or the millions of state and federal laws which now govern its usage. New discoveries invariably create prolific rules and regulations which attempt to regulate their production and application. The automobile represents one of those. Arguably, one of the most remarkable inventions of mankind. Today, the megalith industry it spawns accounts for endless revenue for governments, thousands of companies and millions of people’s livelihoods. In fact, it is impossible to imagine the world without the automobile.
Police, for the most part, are left with the responsibility of enforcing the applicable laws and regulations which govern its usage… where the rubber hits the road: on the streets and highways of nations. Inadequate training, fear, attitudes and weak law enforcement management, together with an uninformed/misinformed driving public, many driving in fear…in a hurry or just doing their job often invite the misapplication of the laws which now define and govern authorities’ jurisdiction, driver’s rights and responsibilities.
To truly understand “The Rules of the Road” we must look, first, at the laws which we have enacted since the advent of the “horseless carriage”. Unfortunately, the cumulative weight of these laws leave few actual rights for the assuming driver. The good news is higher courts continue to adhere to ‘primary law’ providing the parties practice (or don’t) its precepts. But, for most people keeping the actors accountable is a formable task. Most drivers roll over, survive their arrests, pay their fines and move on. Others carry the scars of unnecessary abuse. Still, others surrender their freedom forever for their violations. Thousands, less fortunate leave their blood on the asphalt they continue to take for granted.
The unfortunate saga of Sandra Bland highlights countless unnecessary and tragic stories which play out across this country every day. What police too often ignore is that the experience the everyday driver takes away from a ‘road-side-stop’ forms long term attitudes people maintain about law enforcement in general.
This presentation will not be accompanied with referenced ‘points and authorities’. Those motivated are welcome to conduct their own research of the annuls of settledlaw and statutes. Inevitably, they will come to the same conclusions presented here. I personally, have researched this issue extensively. I have not lost a traffic citation in more than (25) twenty-five years. I have prevailed in both state and federal jurisdictions. And, I have received tens of thousands of dollars in punitive damages from law-enforcement and the agencies who employ them for violating the same laws drivers are held to. Let us begin:
(1.) “Any act which act is not an act of competency, but is an act of privilege is an act which is unlawful to the underlying law of the land.” The underlying law (the common law) designates property rights absolute. Thus, a driver’s license is permission granted by authority to those who desire to drive (travel) on other people’s property without their ‘expressed’ permission…thus, its usage is regulated and enforced as a privilege. Public highways, streets and alleys are ‘other peoples’ land. As long as you drive on your own property a drivers license is not required.
2.) Renting or leasing is a privilege granted by contract in civil law. Just because you may refer to your apartment as ‘your’ apartment does not mean you actually own it. A contract entitles you to possession. Today, we call the auto we have regular access to as ‘our car’. When we pay off our auto loan it moves us even closer to the false assurance that the auto or truck is actually ours. But, in absolute fact, it is not. Unless, of course we have kept the “Bill of Laden” from the manufacturer permitting us to use it as our personal property which unlike a hundred years ago is seldom if ever done. In fact, in many jurisdictions it is prohibited or grounds for reporting you to the DEA.
3.) When purchasing a new auto from a dealer, one of the first documents he hands you is called a ‘Power-of-Attorney’ authorizing (among other things) the dealer to forward the ‘Bill of Laden’, to the state which issues you a ‘Certificate of Title’, for civil purposes. The state retains the actual title! Thus, assuring its usage will be regulated, no exceptions.
4.) A law enforcement officer is a jurisdiction’s designee to determine if a crime (infraction, misdemeanor or felony has occurred). In most situations they are responsible for issuing (what is called) “an information” to the District Attorney for felonies or a “citation” to the court of proper jurisdiction for lesser offences. In this responsibility they are charged with certain discretion ie. common sense and understanding of the law they are obligated to enforce. They have greater discretion with infractions, even misdemeanors than they do with outright felonies.
5.) Having said this, let us take a look at “the pull-over”, as I call it. When police stopped relying on their sirens to notice a driver to pull over and stop and adopted flashing lights, the law changed to accommodate this preference. It is now established law that when an officer turns on his flashing lights you are under arrest! That is right! You are technically under arrest. If you put your foot on the gas pedal (for example) instead of the break when you see the flashing lights you are in fact committing a felony called ‘evading arrest’ regardless the reason the officer had in pulling you over electing to further examine you to vacate the arrest or to further enforce it. The burden now shifts to the driver.
6.) An array of case law, some reaching the U.S. Supreme Court have settled what jurisdiction (rights) drivers actually have under these circumstances. We know now, the road the driver is traveling is not his. The machinery he is operating is not actually his and he now knows he is under arrest. In other words, from this point forward…what actual rights (if any) does a driver have, once the flashing lights go on. Regardless, the driver is certainly on thin ice!
7.) However, all is not lost. In America one very important, but seldom enforced distinction must be applied. One thing must occur which distinguishes a ‘lawful arrest’ from a kidnapping…unless the party arrested relinquishes jurisdiction over his person or property, otherwise (discussed later). The party under arrest by a citizen or law enforcement person is that he/she must be told why they are under arrest. This often is a tricky issue to establish. When a policeman arrives at the door of your car, if you asked him why you are under arrest many will deny you are under arrest. Instead, the driver should take the initiative and politely greet the officer and ask him why he pulled you over. If he refuses to tell you, you know you have a hostile official at your door. Continue to politely ask him. Once he answers, he has met the requirement of a lawful arrest, he is otherwise committed. In other words, don’t wait embrace it.
8.) Contrary to misinformed pundits, there is no law that says you must roll your window down or not lock your doors. Think about it. It is night…you are all alone and just because you assume you are being pulled over for legitimate reasons by a caring and accountable official…in fact, you don’t know. You do have the right to protect yourself and your property from unlawful searches and seizure (unless you surrender that right which we will talk about in a moment). Driving on a public road does not, in itself, remove that right (unless you are suspected of or commit a felony in the presence of a law enforcement officer), but it certainly reduces it to a narrow margin. The only law which exist (in most states) is that you roll your window down a couple of inches, enough to exchange paper and not otherwise inhibit communication… not far enough to permit a body part! Keep your doors locked at all times! The video of Sandra Bland’s arrest is clear evidence of what can happen when these rules are not adhered to.
9.) The next point is as important as the rest combined. The Supreme Court has ruled that any…“any” piece of paper handed out the window of your car by the driver or any of its occupants to any law enforcement officer, which purports to be an identification document immediately relinquishes your jurisdiction over your person and property. Only then can an officer legally order you out of your car. Any answer to any question, request or order which objects to or misinforms an officer of the law, after this point, is legally ruled as ‘resisting arrest’… a felony under the law. Further, an officer is empowered to use any force necessary to make the driver and its occupants comply including using lethal force. Even if it is over refusing to extinguish a cigarette! Everything inside the auto belongs to him …is under his authority and control. Everyone in the vehicle remains under arrest until he releases his hold by way of his discretion or by bailment . The high Court has also ruled that anyone in the vehicle who exits the vehicle also immediately relinquishes jurisdiction of person(s) and property. If you haven’t relinquished jurisdiction stay in your lock car.
10.) Any attempt an officer makes to “force” you to relinquish your right to protect your body or property is a violation of your civil rights as determined in U.S. Title 42 1984, 1985. But, the line is very fine. Yes, you may spend many a day in jail. And you may only get to a jail cell by way of a hospital bed. But, if you are determined and keep your cool you will prevail in United States Court. The more severe you may suffer…the greater the settlement the law enforcement agency will likely pay you! Since, it is the driver’s body and occupants and it is his property (inside the car) that is at stake it is up to the driver to maintain control and reduce tension which may arise in a second while standing ground. Ignoring these truths can have dire consequences.
11.) Unfortunately, there exist a serious segment of law enforcement that doesn’t know these truths. Those who do, do not want you to know. Keep in mind, the number one mandate officers are trained in is how to establish control and maintain it, regardless the situation. Unfortunately, negligence in exercising common sense or practicing respect, by either party, too frequently leads to the unnecessary escalation of something a more seasoned official would elect to manage differently. This growing phenomenon of ‘knee-jerk- trigger-happy’ reactions by police we witness is a direct and proximate consequence of agencies following quotas instead of principles, expecting rules and regulations, alone, to carry the day. No “body-cams” will correct violations emanating from this short sided management style. In fact, they will actually exasperate it while providing a false sense of security because, they ignore the underlying cause.
12.) Further, it is absolutely essential to determine the type (demeanor and wisdom) of the law enforcement officer at your door. You have seconds. Basically, there are two types: Type ‘A’ usually avoids initial eye contact, brandishing his chest to make sure you see his gun and orders you to produce your driver’s license, registration and proof of insurance. I call him the ‘thugger type’. He thinks his awesome uniformed and armed body, badge and $100,000 + cruiser with its flashing and blinding lights is enough to scare and intimidate you to relinquish your jurisdiction (discussed earlier) and produce the items he has ordered you to give him (so he can establish absolute control).
13.) The second, (‘Type B’) is the officer who makes eye contact and with a faint smile and says: “Good afternoon, do you know why I pulled you over?” One is clearly intimidating while the other is polite respectful and wise. Making this distinction has literally become a necessary requirement a… life or death determination in the untrusting society we have created for ourselves. Each officer type invites a different response:
14.) The first officer described above is unpredictable…a hot head, who is drinking high octane cool-aid. He has not only determined your guilt but, he is mad at you for doing what he thinks you did or may have done. The second officer is taking the time to read you… understand you and afford you the respect of inviting you to indict yourself before asking anything further of you. He also, wishes to meet the requirements of a lawful arrest up front. Chances are, he has been in the force much longer than the first officer type described. Having said this, you still have the power to mitigate the outcome of the encounter, in either case.
15.) Now, let’s get back to events. You now know if you comply with either officer’s request to produce your driver’s license, registration and proof of insurance you are relinquishing your right to protect your person and your property from unlawful acts and abuses. So what do you do? In the case of the second officer cited you have established some respect, modest as it may be, with each other. It is something, in the least, you may be able to work with. Your producing the items requested appear less likely of him taking unfair advantage of you or the situation regardless, of the reality, if provoked.
16.) The first officer described: (Type ‘A’) however, presents different potential scenarios: none of which are particularly re-assuring. You may elect, without breaking any laws retain your rights, hold your ground and control over the situation: “No, officer, I don’t believe I have any of those documents with me this afternoon, but listen carefully, my name is_______. My driver’s license number is ________. This car is registered to________…at this address________ and my insurance company is_______.
17.) He sees your purse or billfold lying on the passenger seat…”…Are you refusing to give me those items?”, he shouts. (Refusing is a potential felony.) “No officer, I am not refusing. I just don’t “believe” (emphasis added) I have them with me today. (Do not attempt to locate and produce them!) Would you like me to repeat the information I gave you, again”, you continue. (Of course he would!) He hasn’t put a pen and paper in his hand, yet, expecting you are not going to give him…at least some of the items he has asked for. Now, he has no choice, but to ask you to repeat the information so he can write it down and return to his cruiser’s computer.
18.) Congratulations, you have held your ground! So far, you have not relinquished your right to protect yourself under the law and have reclaimed some control over the situation. He cannot resist the temptation. He knows if you have lied, in any way, you are likely going to jail. But, if you haven’t he is not getting into your car or have the authority to get you out of the car. No crime has occurred if you don’t have those items in your possession! The worse that can happen is… he comes back to your car after running your information (in every data bank he has access to) and says…”…O.K. I have cited you for unsafe lane change (or whatever) “…I have also cited you for no drivers license, no registration and no proof of insurance.”
19.) Refusing to sign the ticket serves no purpose under law beneficial to your property rights and will just escalate the situation for no gain. Your signature confirms your promise to appear (or pay). Another way of saying it you are being released from custody ie. arrest, on ‘your own recognizance’. In fact, you have an array of options in addressing or contesting the matter.
20.) When you go to court, the judge will ask you to produce those items to the bailiff. Upon presentation, the bailiff signals the court you have them and the judge is required by law to dismiss those cites from your traffic ticket, levying no fine. There is no penalty if you didn’t produce them at the time you were cited…providing, of course you didn’t refuse! (Keep in mind, if you start to look for those items in your car and then change your mind, chances are you will fail to persuade the officer to write down the information from the beginning. Even if you produce only one of the items you have handed control over to a person you do not know or what he may do next.) The important fact to keep in mind here is that the jurisdiction in the court is lot safer than the jurisdiction on the road you were traveling.
21.) Satisfied finally, I am not a wanted fugitive, I have had many officers come back to my car with or without a citation in their hand and ask…”Why didn’t you give me your license…etc?” “Thank you officer for asking,” I usually reply. “I just didn’t wish to relinquish jurisdiction.” “Oh…” they say, and walk back to their cruiser and I am then free to continue on my way.
Mr. Mellor lectures to interested groups: sovereignactivist@gmail