_________[ Pretrial Memorandum of Law (In further support of Motion in
Limine) ] _____________
_______________ [ Draft of Appellate Brief ]
_________________________________
[Re: For SPEEDING "50" MPH (really 62 MPH) in a 40 MPH passing
zone]
[Tkt. No. WD479083 3]
[AP #03/0003/Clarkson]
-v.s.-
Mark R.
Ferran
Defendant-Appellant.
______________________________________________________________________________
APPELLATE
BRIEF
(DRAFT-NOTES)
______________________________________________________________________________
POINT 1
THE "CHOICE OF EVILS" DEFENSE IN PL 35.05(2)
APPLIES TO POTENTIALLY JUSTIFY CONDUCT KNOWN AS "SPEEDING" IN VIOLATION OF
VEHICLE AND TRAFFIC LAW SEC. 1180(D)).
In People v. Maher, 79 N.Y.2d 978, 594 N.E.2d 915, 584 N.Y.S.2d 421 (1992),
the Highest Court of the State of New York expressly decided (contrary to the
Assistant District Attorney's advice to the Town Justice) that Penal Law §
35.05(2) CAN BE "a statutory defense" to an alleged violation of the speed
limit:
"Under the "choice of evils" theory of Penal Law section 35.05(2),
conduct that would otherwise constitute an offense is justified when it is
"necessary as an emergency measure to avoid an imminent public or private
injury which is about to occur by reason of a situation occasioned or
developed through no fault of the actor, and which is of such gravity that,
according to ordinary standards of intelligence and morality, the desirability
and urgency of avoiding such injury clearly outweigh the desirability of
avoiding the injury sought to be prevented by the statute defining the offense
in issue. Defendant asserts that he chose to engage in certain conduct
(speeding) in avoidance of a [serious physical injury] .... [W]e agree with
defendant that he was entitled to have the jury consider whether his speeding
was justified. It is not for the trial court to hypothesize other reasonable
alternatives to the course of action chosen by the defendant. If on any
reasonable view of the evidence, the jury might have decided that defendant's
actions were justified, the failure to charge the defense constitutes
reversible error (see, People v Padgett, supra)."
In People v. Maher, 79 N.Y.2d 978; 584 N.Y.S.2d 421 (1992), the Court
further noted that:
"Defendant was indicted for second degree manslaughter, second degree
vehicular manslaughter, driving while intoxicated, and two counts of leaving
the scene of an accident. [Vehicle and Traffic Law § 600 titled, " Leaving
scene of an incident without reporting" prescribes that a violation of its
provisions "shall constitute a traffic infraction [or] a misdemeanor"
depending upon whether the accident involved injury to a person]
[A]s to the remaining leaving the scene count, the jury found defendant not
guilty 'with justification.' … Upon defendant's request, and
with no objection by the People, the trial court instructed the jury on the
justification defense as to the leaving the scene count."
People v. Maher, 79 N.Y.2d 978; 584 N.Y.S.2d 421 (1992).
Thus, the ratio decidendi of the Trial Court Ruling(s) appealed
from (to the effect that Penal Law section 35.05(2) categorically does not apply
to Justify violations of "traffic" offenses defined in the "Vehicle and Traffic
Law") was plainly repudiated by the prior holdings in a decision of the Highest
Court of the State.
Furthermore, the High Court specifically said, "we agree with defendant
that he was entitled to have the jury consider whether his
speeding was justified." People v. Maher, 79 N.Y.2d
978; 584 N.Y.S.2d 421 (1992) (The court found "jury .. could not find defendant
guilty of criminally negligent homicide unless it concluded that he was speeding
[without Justification] at the time of the fatal accident.") Thus,
"speeding" has already been recognized by the High Court as "conduct" which can
be legally Justified under emergency circumstances, pursuant to Penal Law
section 35.05(2).
Further contrary to the Trial Court's
ruling and its ratio decidendi, a line of cases stands for the (obvious)
principle that if the conduct (e.g., "speeding") in People v. Mahar was
justified such that criminal responsibility for a resulting DEATH could be
avoided, then the defendant in Mahar could NOT properly be found guilty of
"lesser charge" of "speeding" in violation of the Vehicle and Traffic Law.
Ergo, conduct including "speeding" in violation of the Vehicle and Traffic Law,
can be legally Justified, whether or not such conduct involves a substantial
risk of death to another, AND ESPECIALLY SO IN CIRCUMSTANCES WHERE SPEEDING MAY
REDUCE A RISK OF DEATH TO ANOTHER, provided that such conduct is undertaken for
an emergency purpose, etc., as provided in Penal Law section
35.05(2).
"Justification is an ordinary defense. That is, the People have the
burden of disproving such defense beyond a reasonable doubt. (Penal Law §
25.00 [1]; § 35.00.) … The essence of the defense of justification is such
that it does not … negate a particular element of a [offense]. Rather,
by recognizing the [conduct] to be privileged under certain circumstances, it
renders the conduct in issue entirely "lawful." ( People v McManus, 67 NY2d
541; People v Taylor, 177 NY 237.)"
People v. Miller, 146 Misc. 2d 16; 549 N.Y.S.2d 554 (1989).
"[A] finding of 'not guilty by reason of justification' as to any one of
the counts would preclude a verdict of 'guilty' as to its lesser included
offenses. Stated otherwise, once the jury found the defendant not guilty
of the greater offense on the basis of justification, it could not properly
reach a contradictory finding that the defendant was guilty of a lesser
charge…."
People v. Miller, 146 Misc. 2d 16; 549 N.Y.S.2d 554 (1989) (citing People
v. Hoy, 122 A.D.2d 618, 504 N.Y.S.2d 939 (Appeal from judgment of Monroe County
Court, Celli, J))
"A finding of not guilty by reason of justification to the manslaughter,
second degree, charge precludes a finding of guilt to any lesser charge ( People
v Huntley, 87 AD2d 488, affd 59 NY2d 868). The Court of Appeals in People v
McManus (67 NY2d 541, 546), makes this very clear by stating: 'The
[justification] defense does not … negate a particular element of a crime.
Rather, by recognizing the use of force to be privileged under certain
circumstances, it renders such conduct entirely lawful.' "
People v. Hoy,
122 A.D.2d 618, 504 N.Y.S.2d 939 (Appeal from judgment of Monroe County Court,
Celli, J)
"A finding of 'not guilty by reason of justification' [on any charge
based on defendant's conduct] precludes a finding of guilt on any [lesser
charge based on that conduct] because it renders defendant's conduct lawful
(see, People v Hoy, 122 AD2d 618, 619)."
People v. Dare, 175 A.D.2d 586; 572 N.Y.S.2d 251 (4th Dept. 1991).
Thus, where the voluntary act of "speeding" is Justified by emergency
circumstances, pursuant to Penal Law section 35.05(2), a defendant charged with
"speeding" (e.g., "50" in a 40 MPH zone) cannot properly be denied the
"Determination" due pursuant to 35.05(2) nor can he properly be found "guilty"
of that traffic offense.
In State v. Rasmussen, 524 N.W.2d 843 (N.D. 1994)
the North Dakota Court stated:
"We have recently recognized the availability of [a Justification]
defense to a strict liability offense. See State v. Michlitsch, 438 N.W.2d 175
(N.D.1989). ... For a thorough analysis of the legal issue, see State v.
Brown, 107 Wis.2d 44, 318 N.W.2d 370 (1982) [defense of legal justification is
applicable to speeding violation]. ... In Brown at 376, the Wisconsin Supreme
Court discussed policy considerations in determining if particular defenses
should be permitted for a particular strict liability offense:
"[W]hen
determining whether we should recognize any defenses to a strict liability
traffic offense, we must determine whether the public interest in efficient
enforcement of the traffic law is outweighed by other public interests which
are protected by the defenses claimed. "There are several public interests
protected by the defenses claimed. The privilege of self-defense rests upon
the need to allow a person to protect himself or herself or another from real
or perceived harm when there is no time to resort to the law for protection.
The rationale of the defenses of coercion and necessity is that for reasons of
social policy it is better to allow the defendant to violate the criminal law
(a lesser evil) to avoid death or great bodily harm (a greater evil)."We
conclude public policy factors would support an affirmative defense to driving
under suspension in life-threatening circumstances."
In People v. Musto, 243 A.D.2d 508; 664 N.Y.S.2d 960 (2nd Dept. 1997), the
Court expressed no doubt that a defendant charged with "driving" while not
legally permitted to drive, for the purpose of "driving a passenger to a
hospital" during an actual medical emergency would be legally entitled to a Jury
Charge on the defense of justification (Penal Law § 35.05 [2]), if the could
produce evidence that the passenger was in fact "in need of medical attention"
and was "in any imminent danger so as to warrant the 'emergency measure.'
"
In People v. Moore, 42 A.D.2d 268; 346 N.Y.S.2d 363 (2nd Dept. 1973):
"A chase at speeds up to 60 miles per hour ensued, with both cars passing
through two red lights en route. … The remaining error lies in the
trial court's refusal to charge the defense of justification (Penal Law, §
35.05, subd. 2; see People v. Steele, 26 N Y 2d 526). The defendant contends
that he was approached by a stranger carrying a gun and, in an attempt to
flee, committed traffic violations, including running through two red lights.
As earlier noted, there was a sharp conflict between his and the People's
version of the incident. The jury, of course, was free to believe the
defendant's version, or any part of it (Part v. Steele, supra, p. 529), and
thus to conclude that he justifiably had felt it necessary to commit the
various traffic infractions to avoid "an imminent * * * private injury * * *
about to occur by reason of a situation occasioned * * * through no fault of
the [defendant]" (Penal Law, § 35.05, subd. 2 [bracketed word added]). If the
jury chose to believe all or some part of the defendant's story, then,
assuming justification had been charged, they could determine that the
defendant acted justifiably in an emergency situation in speeding through the
red lights and driving recklessly. Since they had been charged that if they
found "that the defendant committed any of these traffic offenses in the
presence and view of Patrolman Barry, then, as a matter of law, Patrolman
Barry was authorized to make an arrest of the defendant without a warrant," it
was important that the charge also contain an explanation of the defense of
justification."
People v. Moore, 42 A.D.2d 268; 346 N.Y.S.2d 363 (2nd Dept. 1973).
The foregoing cases all indicate that conduct known as "speeding" (in
violation of the Vehicle and Traffic Law) can be legally Justified under certain
circumstances, pursuant to Penal Law 35.05(2). Thus, CONTRARY TO THE
ASSUMPTION OF THE TICKETING POLICE OFFICER, AND CONTRARY TO THE ADVICE OF THE
ASSISTANT DISTRICT ATTORNEY, AND CONTRARY TO THE RULINGS OF THE TOWN JUSTICE
BELOW, THERE IS A "STATUTORY DEFENSE" to an alleged violation of the speed
limit.
In People v. Cook, ( Essex County Court, 1999) a factually
similar passing-emergency was involved, but the layman defendant did not
formally raise the Choice of Evils Justification Defense. In the Cook
case, defendant was "passing another car" when suddenly, he "saw a car coming
toward Him in the oncoming lane":
"The Town Court's return indicates that the Defendant testified that:
"...He was passing another car (doing approx. 40 M.P.H.) and when He saw a
car coming toward Him in the oncoming lane, He had to make a decision whether
to hurry and complete the pass, or to brake hard to stop the pass and return
to His own lane. Mr. Cook chose to hurry to complete the pass, and said He
floored it in able to do so. Mr. Cook's final statement was that
He denies He was speeding; but to avoid an emergency circumstance He can
account for His Inappriote (sic) Behavior."
"That testimony is not
sufficient to sustain a conviction of speeding because it is not an admission
by the Defendant that he was driving at a particular speed in excess of the
speed limit of 55 miles per hour."
The defendant in Cook apparently knew, when he saw the oncoming car, that
he had the safe option to "brake hard to stop the pass and return to his own
lane" (with complete safety to himself and others), BECAUSE THERE WERE NO CARS
CLOSE BEHIND HIM WHEN HE LEFT HIS OWN LANE. In the present case, the
"break hard" return alternative (the alternative to speeding-out of the
emergency) was NOT SAFE, or NOT AVAILABLE, because the LINE OF CARS backed up
close behind the Defendant when he passed the slower car ahead.
The natural tendency of drivers of cars in a line of traffic backed up
behind a slow car is to immediately ADVANCE and to CLOSE the space left
unoccupied by the departure of the passing car, and certainly NOT to slow down
to further to enlarge that space (e.g., to enable the passing car to safely
return to his original position just in case of an unforeseen emergency).
It is also foreseeably possible that another car in the backed up line of
traffic (behind the first passing car) might also choose that same apparent
opportunity to pass the slow car. This possibility, combined with an
attempt by the first car to "hard break" or otherwise slow and return to his
original position, would create a substantial and unreasonable risk that the
first passing car would back into and collide with the second passing car.
Vehicle and Traffic Law section 1211, titled "Limitations on backing" prescribes
"(a) The driver of a vehicle shall not back the same unless such movement can be
made with safety and without interfering with other traffic." This
principle should also be instructive to the Assistant District Attorney and the
courts with regard to "relative" movement backwards into a questionable gap
within a line of cars.
Further, without "hard breaking," and assuming that
the cars behind did not advance into the defendant's original position, the
simple act of "slowing" down (in the lane of an oncoming vehicle) in an attempt
to return to the original position would amount to a deliberate decision to
spend MORE TIME in front of (and driving towards) an oncoming car, which is
INTUITIVELY HAZARDOUS AND WRONG.
Furthermore, the basic idea of "returning"
to the original position behind the car being passed, would be in effect, AN
ATTEMPT TO PARALLEL-PARK BETWEEN TWO MOVING CARS, WITH EACH CAR POTENTIALLY
MOVING AT DIFFERENT RANDOM SPEEDS, at an average speed of over 30 Miles per
hour. This backwards maneuver would also generally require looking
backwards (watching the position of the car behind), and therefore taking one's
eyes off of the oncoming car and all other conditions ahead. Some people
are unable to parallel park BETWEEN STATIONARY (PARKED) cars without bumping
into one or both of them. It is hardly reasonable to argue that any
non-stunt-driver in their right mind should be so confident as to attempt such a
reckless maneuver if another (surer, safer and faster) route to safety was
available.
The many POTENTIALLY CATASTROPHIC foreseeable consequences of "hard
breaking" or even "slowing down" in order to attempt to "return to the original
position behind the vehicle he was passing", removes the "return to original
position" idea from the realm of the reasonable and sane, and places that idea
squarely into the category of Reckless Endangerment and Unreasonable Risk of
Death. The suggestion that a person who has lawfully departed from a
line of close traffic in order to lawfully pass a car should then recklessly
attempt to return to his original position is simply the product of the mind of
a neophyte Assistant Prosecutor who is CATEGORICALLY opposed to allowing any
"Speeding" incident to be recognized as Justified and Lawful. To wit: "The
People would oppose such motion. There are no statutory defenses to an
alleged violation of the speed limit." But undoubtedly, if that reckless
backing maneuver had been attempted, with a resulting pile-up of cars and many
deaths, that the same ADA would be sure to insist in court at the ensuing
homicide trials that that massive loss of life could have been avoided had the
defendant's passing car simply completed the pass (by accelerating forward into
his proper lane and out of the way of the oncoming car).
POINT __
JUSTICE DELAYED IS JUSTICE DENIED.
THE TRIAL COURT'S REFUSAL TO MAKE SPECIFIC FINDINGS WITH
RESPECT TO PLAINTIFF'S CLAIMED DEFENSE OF JUSTIFICATION DELAYED THAT AJUDICATION
AND PREJUDICED DEFENDANT'S REMEDIES ON APPEAL.
There are at least "Three Possible Verdicts" in a Bench Trial:
"Guilty", "Not Guilty" and "Not Guilty by Reason of Justification". People
v. Miller, 146 Misc. 2d 16; 549 N.Y.S.2d 554 (1989); Accord, Mahar, supra
("the jury found defendant not guilty 'with justification.' " )
"If a verdict sheet is silent on the issue of justification, it becomes
nearly impossible for a … appellate court to discern whether a … finding of "…
guilty" was predicated upon the People's [mere proof of] the requisite
elements of the crime or [that plus a necessary disproof of] the justification
defense beyond a reasonable doubt. Similarly, it becomes equally
difficult to discern whether a [trier of fact] properly followed the [Law]
with respect to the justification defense when they find defendant "guilty"
…. Therefore, requiring the [trier of fact] to render a specific verdict
on the issue of justification not only complies with the law but also
facilitates intelligent review of the record. "
People v. Miller, 146 Misc. 2d 16; 549 N.Y.S.2d 554 (1989).
"Furthermore, judicial economy is best served by submitting such a
verdict sheet [i.e., requesting specific findings of fact] to the jury since
this practice may prevent defective verdicts, unnecessary retrials and
ambiguous records. … Submitting a verdict sheet in the form herein,
therefore, is not only permissible within the meaning of the statute, but also
facilitates appellate review and avoids unnecessary
retrials."
People v. Miller, 146 Misc. 2d 16; 549 N.Y.S.2d 554 (1989).
Contemplating the imminent necessity of
This Appeal (made necessary by the Court's initial rulings on the Justification
Defense), the Defendant explicitly demanded that the Trial Judge (trier of fact)
should make Specific Findings of Fact with respect to the elements of
defendant's proffered Justification Defense, so that the legal issue
(applicability of PL s 35.05(2) to VTL offenses) presented herein could be
resolved together with a DISMISSAL of the charges on appeal. The refusal
of the Trial Court to make such specific findings may seem like a cumulative
error (i.e., not independent of the Initial Ruling Denying the Applicability of
PL 35.05(2)) but it actually Compounded the initial error and inflicted Further
and Additional Injury upon Defendant (e.g., in this Appeal), by refusing to
"facilitate[] appellate review and [failing to] avoid[] unnecessary
retrials."
JUSTICE DELAYED IS JUSTICE DENIED.
The Defendant has born an enormously disproportionate burden to defend a
legal principle in this case. Travelling, from Albany, 4 hours (in each
direction) to conduct a trial necessitated solely because the LAW OF THE STATE
WAS UNCERTAIN in the minds of agents of the Government in the vicinity of
Rochester New York, has already unfairly shifted the State's burden (to
establish and maintain Law) onto Defendant's back.
"Viewing that evidence, as we must, in the light most favorable to
defendant (see, People v Watts, 57 NY2d 299, 301), a charge on the defense of
justification was warranted. … The court's failure to charge the defense
of … may have resulted in the [trier of fact] finding defendant … "guilty" …
despite [defendant's] justification. A finding of not guilty by reason
of justification, however, precludes a finding of guilt on any count because
it renders defendant's conduct lawful (see, People v Hoy, 122 AD2d 618,
619)."
People v. Dare, 175 A.D.2d 586; 572 N.Y.S.2d 251 (4th Dept. 1991).
"Had the jury believed this evidence, they could have found him not
guilty of the Vehicle and Traffic Law charge. Accordingly, the Trial Court
committed reversible error when it deprived the jury of the opportunity to
pass upon these facts (see, People v Steele, 26 NY2d 526, 529; People v Brady,
16 NY2d 186, 189-190)."
People v. Flynn, 79 N.Y.2d 879, 589 N.E.2d 383, 581 N.Y.S.2d 160
(1992).
POINT ___
THE DEFENDANT'S RIGHT TO TRAVEL CANNOT BE
CONSTRAINED AT THE WHIM OF A SLOW-MOVING CAR, NOR OF AN ASSISTANT DISTRICT
ATTORNEY
The Assistant District Attorney has asserted in various manners that the
Defendant forfeited his rights under Penal Law section 35.05(2) simply because
Defendant had voluntarily chosen to drive that day, and more particularly,
because Defendant had voluntarily chosen to (Lawfully) PASS the slower-moving
car ahead of Defendant (initially without exceeding the speed limit).
Passing a car under the circumstances as they initially appeared to the
Defendant, was not forbidden by any LAW of the State. Defendant was not
charged with violating any law regulating "passing."
The Assistant District Attorney implies that Defendant is to be
OUTLAWED (i.e., Put Out of the Protection of the Law) simply because the
Defendant exercised his Natural Liberty to Travel in a wholly lawful manner in
compliance with all the statutes of the State of New York. The Assistant
District Attorney's Argument is UNCONSTITUTIONAL.
The Bill of Rights of the
Constitution of the State of New York Ordains:
Section 1. No member of this state
shall be ... deprived of any of the rights or privileges secured to any
citizen thereof, unless by the law of the land...
Section 6. No person
shall be deprived of life, liberty, or property without due process of law.
Section 14 Such parts of the common law ....and such acts of the
legislature of this state as are now in force, shall be and continue the law
of this state....
The New York State Constitution, Bill of Rights.
There is NO LAW forbidding a person (who is licensed by the State to Drive
a Car) from "travelling" upon the Public Highways of the State. The Right
to Travel, and the right to maintain and to Preserve His Life and the Life of
his Passenger While Doing So, is one "of the rights or privileges secured to any
citizen" and a Liberty that he cannot be "deprived of … unless by the law of the
land." The Right to Travel upon a Public Highway of the State in a Car at
a Speed Not Forbidden by "Law" is a Right that the NO ONE may ARBITRARILY
interfere with. There is NO LAW forbidding a person who is licensed by the
State to Drive a Car from "travelling" upon the Public Highways of the State.
“The right to travel is a part of the ‘liberty’ of which the citizen cannot
be deprived without due process of law under the Fifth Amendment” Kent v. Dulles
, 357 U.S. 116 , 125 , 78 S. Ct. 1113, 1118 (1958). “ The right to travel
, to go from place to place as the means of transportation permit , is a natural
right subject to the rights of others and to reasonable regulation under law.”
Schachtman v. Dulles, 225 F. 2d 938 , 941 ( D.C. Cir. 1955); Wellford v.
Bataglia , 343 F.Supp. 143 , 147 (D.Del. 1972) ( “The right to travel … is a
right to intrastate as well as interstate migration”); Worthy v. Herter , 270 F.
2d. 905 , 908 (D.C. Cir. 1959) (“ The right to travel is a part of the right to
liberty”) ; Coolman v. Robinson , 452 F.Supp. 1324 , 1326 (N.D. Ind. 1978)
(“The right to travel is a very old and well established constitutional right”);
“The right of a citizen to travel upon the public highways and to
transport his property thereon in the ordinary course of life and business is
a common right which he has under his right to enjoy life and liberty, to
acquire and possess property, and to pursue happiness and safety…It is not a
mere privilege…”
Thompson v. Smith , 155 Va. 367 , 154 S.E. 579, 583 (1930).
"The right of a citizen to use the highways , including the streets of
the city or town , for travel and to transport his goods, is an inherent right
which cannot be taken from him, but it is subject to reasonable regulation in
the interest of the public good”
Florida Motor Lines , Inc. v. Ward , 102 Fla. 1105 , 137 So. 163 , 167
(Fla. 1931).
The right to travel is also a constitutional right under the New York State
Constitution , embodied within the assembly provisions of Art. I , §
9 . Gow v. Bingham , 107 N.Y.S. 1011 , 1014 (1907) (“ …the right of personal
liberty … includes … absolute freedom to everyone to go where and when he
pleases”).
Other state case law cites: see Joseph v. Randolph , 71 Ala. 499 ,
504 -05 (1882) ( There can be no denial of the general proposition that every
citizen of the United States , and every citizen of each State of the Union , as
an attribute of personal liberty , has the right, ordinarily, of free transit
from , or through the territory of any State. This freedom of egress or ingress
is guaranteed to all by the clearest implications of the Federal , as well as of
the State constitution”) .
This constitutional right to travel is widely
recognized: see State v. Wylie , 516 P.2d 142 , 145-46 (Alaska 1973) ("[T]he
freedom to travel throughout the United States ‘ uninhibited by statutes , rules
, or regulations which unreasonably burden or restrict this movement’ is a
fundamental personal right under the United States Constitution [ and ] ‘any
classification which serves to penalize the exercise of that right, unless
shown to be necessary to promote a compelling governmental interest , is
unconstitutional’”); In re White, 97 CalApp. 3d 141 , 158 Cal. Rptr. 562 ,
566-67 (1979) (“[T]there is a constitutional right intrastate travel”); Heninger
v. Charnes, 200 Colo. 194 , 613 P 2d 884 , 887 (1980) (“[T]he right
to travel interstate is without question a fundamental right under the United
States Constitution”) ; Hall v. King 266 So.2d 33, 34 ( Fla.1972) ( the
right to travel “may be restricted only for a compelling state interest”) ;
Chicago Motor Coach v. City of Chicago337 Ill. 200 , 169 N.E. 22 , 25 (1929) (“
Even the Legislature has no power to deny a citizen the right to travel upon the
highway and transport his property in the ordinary course of his business or
pleasure, though this right may be regulated in accordance with the public
interest and convenience”) ; People v. Chambers , 32 Ill.App.3d 444 , 335 N.E.
2d 612 , 617 (1975); Sturrup v. Mahan , 290 N.E. 2d 64 , 68 (Ind.App. 1972)
(“…each citizen , adult or minor , has a fundamental right to move freely
from State to State and from City to City within the State”) ; Manzanares v.
Bell , 214 Kan. 589 , 522 P. 2d 1291 , 1301 (1974) (“… freedom to travel
throughout this state and this nation is a fundamental right”) ;
“This right of the people to the use of the public streets of a city is
so well established and so universally recognized in this country that it has
become a part of the alphabet of fundamental rights of the
citizen."
Swift v. City of Topeka 43 Kan. 671 , 23 P. 1075 , 1076 (1890).
"The right of a citizen to travel upon the public highways and to
transport his property thereon in the ordinary course of life and business is
a common right which he has under his right to enjoy life and liberty,
to acquire and possess property , and to pursue happiness and safety …. The
rights aforesaid, being fundamental , are constitutional rights,
and while the exercise thereof may be reasonably regulated by
legislative act in pursuance of the police power of the State, and although
those powers are broad , they do not rise above those privileges which are
imbedded in the constitutional structure”
Teche Lines , Inc. v. Danforth , 195 Miss. 226, 12 So.2d 784, 787,
(1943).
Donnelly v. City of Manchester , 111 N.H. 50 , 274 A.2d 789 , 791
(1971) (“ The right of every citizen to live where he chooses and to travel
freely not only within the state but across its borders is a fundamental
right.”) ; State v. Dobbins , 277 N.C. 484 , 178 S.E. 2d 449 , 456 (1971)
(“[T]he right to travel upon the public streets of a city is a part of every
individual’s liberty”); Cummins v. Jones , 79 Or. 276 , 155 P. 171, 172 (1916) ;
Henry v. Cherry & Webb , 30 R.I. 13 , 73 A. 97 , 107 (1909) ("[T]he right of
personal liberty include[s] .. the right to go where a persons please[s] “)
; Berberian v. Lussier , 87 R.I. 226 , 139 A. 2d 869 , 872 (1958)
; Knowlton v. Board of Law Examiners , 513 S.W. 2d 788 ,
790-91 (Tenn. 1974) (“ The right to travel freely among the states is a
fundamental, constitutionally protected right”); Eggert v. City of Seattle, 81
Wash. 2d 840 , 505 P. 2d 801 , 804 (1973) ( “The right to travel is a right
applicable to intrastate as well as interstate commerce… Both travel within and
between states is protected”)
The Liberty and Right of one
Licensed person to drive at a speed below the posted speed limit Does not
abrogate and Forfeit the equal Right of the person driving behind him from
(passing and) driving at or below the speed limit. Accordingly, there is
NO LAW in New York State absolutely forbidding a person who is licensed by the
State to Drive a Car from PASSING a vehicle ahead of him that is ARBITRARILY
moving Slower than the posted speed limit. A Law or custom that imposed
upon a first citizen the ARBITATRARY DECISION of the second person ahead of him
to drive below the speed limit, would violate the Constitutional Right and
Liberty to Travel without Arbitrary Restraints and Interference. Instead,
the statutory restrictions upon "passing" are FINITE and LIMITED to include
conditions of the markings of the center-line, and the apparent distance ahead
to any oncoming car in the oncoming lane.
“This Court long ago recognized that the nature of our Federal Union
and our constitutional concepts of personal liberty unite to require that all
citizens be free to travel throughout the length and breadth of our land
uninhibited by statutes , rules , or regulations which unreasonably burden or
restrict this movement”
Shapiro v. Thompson , 394 U.S. 618 , 629 , 89 S. Ct. 1322 , 1329 (
1969).
“[O]ne’s inalienable right to liberty and the pursuit of happiness is
curtailed if he may be unreasonably kept off the highways maintained by him as
a citizen and taxpayer ; … ‘the freedom to make use of one’s own property,
here a motor vehicle, as a means of getting about from place to place ,
whether in pursuit of business or pleasure, is a ‘liberty’ which under the
Fourteenth Amendment cannot be denied or curtailed by a state without due
process of law.’ In any event , the right of a citizen to drive a motor
vehicle upon the highways is to be safe guarded against the whim or caprice of
police or administrative officers."
State v. Moseng , 254 Minn. 263, 95 N.W. 2d 6, 13 (1959).
"[S]ince the right to travel was a constitutionally protected right ,
‘any classification which serves to penalize the exercise of that right,
unless shown to be necessary to promote a compelling governmental interest ,
is unconstitutional’"
Dunn v. Blumstein , 405 U.S. 330 , 339 , 92 S.Ct. 995 , 1001
(1972).
Demiragh v. Devos , 476 F. 2d 403 , 405 (2nd Cir. 1973) (“…the right
to travel…[is] a ‘fundamental’ one , requiring the showing of a
‘compelling’ state or local interest to warrant its limitation”); United States
v. Davis , 482 F.2nd 893 , 912 (9th Cir. 1973) ( “… it is firmly settled that
freedom to travel at home and abroad without unreasonable governmental
restriction is a fundamental constitutional right of every American citizen … At
the minimum , governmental restrictions upon freedom to travel are to be weighed
against the necessity advanced to justify them, and a restriction that burdens
the right to travel ‘too broadly and indiscriminately’ cannot be sustained”);
Costa v. Bluegrass Turf Service , Inc., 406 F. Supp. 1003 , 1007 , (E.D.
Ken. 1975) (“… pure administrative convenience, standing alone , is an
insufficient basis for an enactment which … restricts the right to travel”);
Cole v. Housing Authority of City of Newport , 435 F. 2d 807 , 809 (1st Cir.
1970) (“…the right to travel is a fundamental personal right that can be
impinged only if to do so is necessary to promote a compelling governmental
interest”); Tetalman v. Holiday Inn , 500 F. Supp. 217 , 218 (N.D. Ga. 1980) (
“the constitutionally protected right to travel … is basically the right to
travel unrestricted by unreasonable government interference or
regulation”)
The Assistant District Attorney's Assertions that the defendant's Lawful
Decision to Lawfully Pass the slower car ahead of him in compliance with all
State Traffic Laws somehow worked the Forfeiture and Loss of his Right of
Self-Preservation under Penal Law 35.05(2) is an argument for an Arbitrary,
Capricious, Unreasonable, and Unconstitutional penalty and restraint upon
Defendant's Natural and Constitutional Right to Travel, and must be held to be
VOID. Any Law, Custom, Policy or Edict of the State, "which serves
to penalize the exercise of a constitutional right [i.e., freedom of movement,
including the freedom to pass] unless shown to be necessary to promote a
compelling governmental interest, is unconstitutional” Fraternal Order of Police
, Youngstown Lodge v. Hunter , 36 Ohio Misc. 103 , 303 N.E. 2d 103 , 106
(1973). And, any attempted Restraint or penalty upon the Liberty of
Movement (e.g., passing) that is NOT AUTHORIZED BY THE LAW OF THE LAND OF THE
STATE OF NEW YORK is VOID and forbidden by the Fourteenth Amendment and by the
Bill of Rights of the Constitution of the State of New York.
Accordingly, given that the Defendant did not violate, and was not
charged with violating any regulation related to "passing," his decision to
(lawfully) pass a slower vehicle ahead of him, based upon the appearance of the
circumstances at the time he made that decision, cannot be deemed to be "fault"
for the later emergency (the sudden appearance of an oncoming vehicle) which was
caused by the design and line-painting of the highway itself. The
Assistant District Attorney's assertions during the Trial that Defendant should
have simply refrained (and should in the future refrain) from ever passing a
slower car ahead of him amount to Desperate but Unconstitutional and Criminal
Acts of Coercion in violation of Claimant's Legal Rights and Liberties under the
Law of the State of New York.
_____________________[END OF DRAFT APPELLATE
BRIEF]_________________________
You are invited to read Mark R. Ferran's other
informative Writings at:
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