[First published 29 Aug 2013]
Below is part of a recent response to a California Camera Ticket.
I thought this may be of interest to others. Does anyone know if this issue of the Jackson case is the same issue as that of the class action suit brought by an attorney named Robert D. Conaway in Barstow, California?I. THE “NOTICE OF TRAFFIC VIOLATION” HEREIN IS INVALID
A. IMPERMISSIBLE DELAY OF FIVE DAYS FROM TIME OF
ALLEGED INFRACTION UNTIL CITATION IS ISSUED
In Jackson v. Superior Court (1950) 98 Cal.App.2d 183, the following principle is set forth:
“. . . to the right to arrest without warrant the law attaches the
following conditions: The arrest must be made at the time the offense
or any part of the offense is being committed or within a reasonable
time thereafter or upon fresh and immediate pursuit of the offender.
(6 C.J.S. 590.)”.
In the instant case, the citation was not issued at the time of the alleged
offense, nor within a reasonable time thereafter, nor “upon pursuit”.
In the instant case, there were five days from the date of the alleged
offense (8-8-2013) until the date of the citation (8-13-2013).
Five days is far too long. In the Jackson case the officer’s arrest for
misdemeanor [footnote 1: 1 Penal Code Section 19.7 incorporates into infraction procedure all
constitutional procedural protections applicable to misdemeanor procedure.] committed in his
presence 28 hours earlier was held to be not lawful.
Jackson cites a case where “ . . . some five hours having elapsed . . .
during which the defendant [officer] was not about anything connected with
the arrest, the court was right in its instruction that there was no authority
to arrest for that occurrence.”
Jackson cites the California Supreme Court in People v. Craig, 152 Cal. 42, 47,
“It seems to be generally held that an arrest for a misdemeanor without a warrant cannot be justified if made
after the occasion has passed though committed in the presence of the arresting officer.” In the instant case,
not only had the occasion passed five days before, but it was not even “in the presence” of the officer.
B. THE ARRESTING OFFICER ADMITS THAT THE ALLEGED
INFRACTION WAS NOT COMMITTED “IN HIS PRESENCE”
Please see def’s declaration above at para 2. Officer Butkus admits . .
”Violation was not committed in my presence. . .”
C. CALIFORNIA LAW REQUIRES THAT THE ARRESTING OFFICER
BE “IN THE PRESENCE” OF THE ALLEGED INFRACTION
Penal Code section 836, subdivision (1) authorizes warrantless
misdemeanor arrests only when there is reasonable cause to believe an
offense has been committed in the officer’s presence. “In the presence,” is
defined as follows:
“In the presence” is commonly interpreted to refer to having personal
knowledge that the offense in question has been committed, made
known to the officer through any of the officer’s five senses. (See
People v. Burgess (1947) 79 Cal.App.2nd 174, 176.)
Officer Butkus issued his citation on 8-13-2013. He admittedly did not
witness the alleged infraction. So how did defendant receive an earlier 8-8
Notice? Apparently the robot camera made the decision to arrest defendant
– a decision that was only later affirmed by Officer Butkus.
D. IMPORTANCE OF THE JACKSON PRINCIPLE
FOR PUBLIC SAFETY AND TO PREVENT CORRUPTION
Jackson cites a case which expresses the gist of the principle:
“. . . The power to arrest without warrant, while it may in some cases
be useful to the public, is dangerous to the citizen, for it may be
perverted to purpose of private malice or revenge, and it ought not,
therefore, to be enlarged.”
Today’s reliance on robot camera technology for making an arrest leads to
dangers far greater than this. Instead of “private malice or revenge”
(impacting individuals) – here the entire paradigm of law enforcement is
perverted on a large scale – affecting every driver.
Under Jackson, a police officer – a human who is sworn to uphold the law
– witnesses a possible infraction “in his presence”. His human sense of
justice and his human ability to judge the event in the context of public
safety operate to determine his decision to pursue that offender – without
pause. In Beverly Hills, however, it is the programmer of the traffic camera
who makes these judgments.
Apparently, the cameras are owned and operated by a private contractor
that gets a percentage of the fines levied. The more tickets the cameras
issue, the more money the contractor and the city will receive. The
contractor has no interest in streets becoming safer. It’s in the contractor’s
best interest to issue as many tickets as possible. This is obviously a
conflict of interest.
In fact, it appears that the traffic cameras actually cause more accidents
than they prevent. This is the subject of scholarly journal articles as well as
articles in the media. For example, a vivid description of how the traffic cameras
are, themselves, a safety hazard is provided by “Note, Speeding towards Disaster:
How Cleveland’s Traffic Cameras Violate the Ohio Constitution”, 55 Clev. St. L. Rev.
607 (2007), p. 608:
“Driving to see her boyfriend one clear October day, Carla Correa
approached a Baltimore intersection in her Honda Civic. As she
approached, the light turned yellow, and Correa quickly slammed on
her brakes. Moments later, a large truck rear-ended her, completely
wrecking her Civic. Why would Correa choose to stop so quickly
instead of simply coasting through the yellow light? The answer lies in
a tiny box perched on a post above the intersection. Inside the box is
the dark omnipresent lens of a red-light camera, watching over the
intersection like the proverbial “Big Brother.”” Correa explained that
the intersection had a “quick yellow light” and “when [she] saw the
yellow, [she] freaked out.” She stated, ““Everytime I see the redP
light camera, I’m terrified by it.”
It appears that attitudes and fears like Ms. Correa’s are prevalent
among the nation’s drivers. A Washington Post study reported that
the amount of traffic accidents increased at red-light intersections in
the nation’s capital. The study also found that crashes resulting in
injuries and fatalities had increased by 81% after installing red-light
cameras at an intersection. Although camera proponents tout their
safety benefits, the real purpose is often revenue based. When a
municipality chooses to issue tickets with the goal of generating
revenue, what stops municipalities and the companies they contract
with from issuing as many tickets as possible without safeguarding
the rights of citizens? . . .’ .”
An October 27, 2011 study by the US PIRG Education Fund titled
CAUTION: RED LIGHT CAMERAS AHEAD, found that “Privatized traffic
enforcement system contracts that limit government discretion to set and
enforce traffic regulations put the public at risk.” The study goes on to say
For example: Yellow Light Duration. When traffic engineers lengthen
a yellow signal, it gives drivers more time to react to the signal
change, which tends to reduce the number of red-light violations.
However, some contracts, including those in the California cities of
Bell Gardens, Citrus Heights, Corona and Hawthorne, potentially
impose financial penalties on the city if traffic engineers extend the
length of the yellow light at intersections with red-light cameras,
which would reduce the number of tickets the systems can issue.”
Right on Red Enforcement. Law enforcement agencies in different
cities choose which types of violations to prioritize in the name of
public safety, including whether or not to ticket motorists who make a
“rolling stop” rather than a complete stop behind the line before
turning right on a red light. However, some contracts require
municipalities to strictly issue tickets on all right turns that do not first
come to a complete stop, or enable vendors to impose financial
penalties on cities that choose to alter their enforcement standards
including the contracts that Ventura and Napa Valley, California have
with camera vendor Redflex.
Instead of assisting law enforcement with its work, the camera technology
involves private profit motive instead of public safety. This species of
corruption leads to more blatant corruption. Consider the March 2, 2013,
Chicago Tribune article by reporter David Kidwell, entitled “Red light camera
firm admits it likely bribed Chicago official,” which states the following:
“Chicago’s embattled red light camera firm went to City Hall on Friday in
its latest effort to come clean, acknowledging for the first time that its
entire program here was likely built on a $2 million bribery scheme.
By its sheer size, the alleged plot would rank among the largest in the
annals of Chicago corruption.”
Therefore – from the point of view of both public safety and municipal
integrity – it is important that the rule of Jackson should not be enlarged.