“Neglected Principles and Lost Freedom!”

By: William H. White, Municipal Judge, Town of Edgewood

Picture the scene. An airy conference room, men in suits, women with well coiffed hair; there's none of the stench of a smoke filled room, but the human impulses are the same as in the FDR or Nixon White Houses. Impatience is in the air. If only they could take step X to solve problem Y, but the Constitution stands in the way... Back to our well dressed bureaucrats and the more mundane problems they are addressing; red light runners and school zone speeders. They are frustrated that violators must be observed and cited by an officer. Even when caught red-handed, these individuals must be presumed innocent and given the right to a trial. What an inefficient system! Perhaps technology in the form of automatic cameras offers a solution? The difficulty is, of course, that these infractions are crimes, crimes must be charged against an individual, and individuals have rights. There's that troublesome "presumption of innocence" and the onerous "burden of proof" on the state.

At that moment an idea is born in the mind of some too-clever-by-half staffer or opportunistic politician. The idea is not necessarily evil, nor is the person who conceives it, but it is as destructive to our freedom as anything ever devised by king or tyrant. What if, instead of charging a crime, the offending vehicle was simply defined as a "public nuisance"? Gone is the need to prove that a particular person committed a particular crime. Instead, just mail a letter to the registered owner. No need to worry if the car was borrowed or driven by a co-owner, just shift the burden of proof from the state to the individual. The registered owner must either pay up or prove his innocence.

This concept represents a fundamental change in the social contract between citizens and our government. Notice that this dangerous threshold was crossed, not after a lengthy public debate or a campaign to amend the Constitution, but with little fanfare and even less protest by the people or the press. Even the ACLU, that ubiquitous guardian of the most obscure "rights", has been mostly silent on this matter. Its concern was seemingly focused on the issue of an accused being required to pay a fee to protest his innocence. This is rather like haggling over who pays for the kindling at a witch burning; it misses the essential point.

Forget other flaws in this policy, such as encouraging dishonest or heavy-handed enforcement through financial incentives to governments and private companies. Forget the inevitable expansion to other offenses or other objects. Picture a mandatory GPS in every vehicle with speeds monitored and down-linked to a company which then imposes a "public nuisance fee" and sends a cut to the government. We must recognize this threat for what it is; the use of legal sophistry to turn logic and the Constitution on their heads.

We would all like to think that, if Freedom fails, it will be in a grand struggle with some titanic and obvious evil, a Gotterdammerung at least worthy of a tale. The sad truth is, however, that freedom is lost one tiny piece at a time to the expediency of the small-minded functionary or the arrogance of the public servant who thinks that John Locke must be a device for securing the bathroom door. It is our job as citizens to demand better. I respectfully urge Mayor Chavez and the City Council to rethink this program and return the proper Constitutional balance to the City's law enforcement efforts.